Salvation Army Eventide Residence

DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Salvation Army Eventide Residence and Nursing and Convalescent Home Employees' Division of Lo- cal 79, Service Employees International Union, AFL-CIO. Case 7-CA-16281 September 26, 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENE.I.O Upon a charge filed on April 16, 1979, by Nursing and Convalescent Home Employees' Division of Lo- cal 79, Service Employees International Union, AFL-CIO, herein called the Union, and duly served on The Salvation Army Eventide Residence, herein called Respondent, the General Counsel of the Na- tional Labor Relations Board, by the Regional Direc- tor for Region 7, issued a complaint on May 2, 1979, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Na- tional Labor Relations Act, as amended. Copies of the charge, complaint, and notice of hearing before an administrative law judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the com- plaint alleges in substance that on February 8, 1979, following a Board election in Case 7 RC-14977, the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate;' and that, commencing on or about April 2, 1979, and at all times thereafter, Respondent has refused, and continues to date to re- fuse, to bargain collectively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On May 11, 1979, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. Specifically, Respondent admitted, inter alia, that the Board certified the Union as the exclusive bargaining representative on February 8, 1979; that the Union requested bargain- ing on and after February 22, 1979; and that Respon- dent refused to bargain with the Union on and after April 2, 1979. Respondent's answer denies that the I Official notice is taken of the record in the representation proceeding. Case 7-RC-14977, as the term "record" is defined in Secs. 102.68 and 102.69(g) of the Board's Rules and Regulations. Series 8, as amended. See LTV Electrosystemr, Inc., 166 NLRB 938 (1967). enfd. 388 F.2d 683 (4th Cir. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967). enfd. 415 F.2d 26 (5th Cir. 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va.. 1967); Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir 1968); Sec. 9(d) of the NLRA, as amended. Union is the properly designated exclusive bargaining representative of the unit employees, and that its re- fusal to bargain is for the sole reason that it doubts the validity of the outstanding certification. Respon- dent neither admitted nor denied certain other allega- tions related to the Union's status as a labor organiza- tion, that the certified unit is an appropriate unit, and that a majority of the employees in the appropriate unit selected the Union as their exclusive bargaining representative in the September 7, 1978, election. Fi- nally, Respondent denies the conclusionary allega- tions that it acted unlawfully in refusing to recognize and bargain with the Union.2 On June 19, 1979, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on June 27, 1979, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respondent thereafter filed a response to Notice To Show Cause. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment As indicated above, Respondent's answer admits in part, and denies in part, the allegations of the com- plaint. In response to the Notice To Show Cause, Re- spondent contends that the distribution of literature by the Union created the impression that the Board was endorsing the Union, that Respondent's objec- tion should have been sustained, and that a new elec- tion should have been directed. The General Counsel contends that all material factual issues are admitted in Respondent's answer or have previously been de- cided by the Board. We agree with the General Coun- sel. Our review of the record herein reveals that, pursu- ant to a Stipulation for Certification Upon Consent Election, Case 7-RC 14977, an election was held on September 7, 1978, in the appropriate unit. The tally was 32 for, and 25 against, the Union; there were 5 challenged ballots, an insufficient number to affect the results of the election. On October 6. 1978. the 2 Respondent also included in its answer the following affirmative de- fenses: (1) Respondent is a nonprofit corporation, which does not engage In nor affect interstate commerce within the scope of the Act; (2) The factual matters alleged in the complaint do not constitute an un- fair labor practice within the meaning of the Act; (3) Respondent's gross revenues are below the standards established hv the Board as requisite for it to exercise jurisdiction in this matter. 245 NLRB No. 31 370 SALVATION ARMY EVENTIDE RESII)ENCE Regional Director issued his Report and Recommen- dation on Objections and Notice of Hearing, in which he recommended that the Employer's Objection 2 be overruled and that a hearing be held on Objection . On November 3, 1978, the Hearing Officer. Karen Cordry, issued her Report and Recommendation on Objections. Respondent filed exceptions to the Report on Objections with the Board. On February 8, 1979, the Board issued a Decision and Certification of Rep- resentative. On February 22, 1979, the Union requested Re- spondent to bargain collectively with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. On April 2, 1979, Re- spondent refused to recognize and bargain with the Union as the exclusive collective-bargaining repre- sentative of the employees in the certified bargaining unit. In response to a Motion for Summary Judgment, an adverse party may not rest upon denials in its pleadings, but must present specific facts which re- quire a hearing.) Although Respondent has denied certain allegations of the complaint, as described above, it has not set forth specific facts showing that there is a genuine issue for hearing.4 In these circum- stances, we are satisfied that there are no material facts in dispute which require a hearing. It is well settled that in the absence of newly dis- covered or previously unavailable evidence or special circumstances a respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to relitigate issues which were or could have been litigated in a prior representation proceeding.s All issues raised by Respondent in this proceeding were or could have been litigated in the prior repre- sentation proceeding, and Respondent does not offer to adduce at a hearing any newly discovered or previ- ously unavailable evidence, nor does it allege that any special circumstances exist herein which would re- quire the Board to reexamine the decision made in the representation proceeding. We therefore find that Respondent has not raised any issue which is prop- erly litigable in this unfair labor practice proceeding. Accordingly, we grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: Peerless of Amenca, Inc., 229 NLRB 183 (1977). 'We find no ment in Respondent's affirmative defenses. We note that Respondent did not contestjunsdiction in the representation case and that it entered into a Stipulation for Certification Upon Consent Election pursuant to which the September 7. 1978, election was held. See Jack L. Willham., D.D.S. db/a Empire Denral Co, 211 NLRB 860 (1974). t See Pittsburgh Plate Glass Co. v. N.I.R B. 313 U.S. 146. 162 (1941) Rules and Regulations of the Board, Secs. 102.67 ( and 102.6 9(c) FINI)INGS F() FA(CI 1. IHiE BUSINESS ()F RESPONI)I-NI Respondent is. and has been at all times material herein, a corporation duly organized under, and exist- ing by virtue of, the laws of the State of New York. At all times material herein. Respondent has main- tained its principal office and place of business at 2643 Park Avenue, Detroit, Michigan, herein called the Detroit place of business. Respondent provides services for the aged. including independent living ac- commodations and nursing care. Respondent's place of business located at Detroit, Michigan, is the only facility involved in this proceeding. During the fiscal year ending September 31. 1978. which period is rep- resentative of its operations during all times material hereto, Respondent received gross revenues in excess of $200,000 from the operation of its Detroit place of business. During the fiscal year ending September 31. 1978, Respondent, in the course and conduct of its business operations. purchased and caused to be transported to its Detroit place of business. natural gas valued in excess of $1,000, which gas wias received directly from the Michigan Consolidated Gas Conm- pany, located in the State of Michigan, which had received the said gas delivered to Respondent directly from points located outside the State of Michigan. We find, on the basis of the foregoing, that Respon- dent is. and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. 11. TIlE LABOR ORGiANIZATION INVOIVED Nursing and Convalescent Home Employees' Divi- sion of Local 79, Service Employees International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRAC(TICES A. The Representation Proceeding 1. The unit The following employees of Respondent constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All full-time and regular part-time nurses aides, orderlies, dietary employees, housekeeping em- ployees, laundry employees, ward clerks, recep- tionist. maintenance employees and elevator op- 371 DECISIONS OF NATIONAL LABOR RELATIONS BOARD erators employed by the Employer at its nursing home and home for the aged located at 2643 Park Avenue, Detroit, Michigan; but excluding all office employees, full-in employees, depart- ments heads, assistant department head, assist- ant food service director, dietary supervisor, of- fice manager, assistant office manager, confidential employees, guards, and supervisors as defined in the Act. 2. The certification On September 7, 1978, a majority of the employees of Respondent in said unit, in a secret-ballot election conducted under the supervision of the Regional Di- rector for Region 7, designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the col- lective-bargaining representative of the employees in said unit on February 8, 1979, and the Union contin- ues to be such exclusive representative within the meaning of Section 9(a) of the Act. B. The Request To Bargain and Respondent's ReJiusal Commencing on or about February 22, 1979, and at all times thereafter, the Union has requested Re- spondent to bargain collectively with it as the exclu- sive collective-bargaining representative of all the em- ployees in the above-described unit. Commencing on or about April 2, 1979, and continuing at all times thereafter to date, Respondent has refused, and con- tinues to refuse, to recognize and bargain with the Union as the exclusive representative for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since April 2, 1979, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit, and that, by such refusal, Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR L.ABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section II, above, occurring in connection with its operations described in section 1, above, have a close, intimate, and substantial relationship to trade, traffic, and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. I HE REMEI)Y Having found that Respondent has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a)(5) and () of the Act, we shall order that it cease and desist therefrom and, upon request, bargain collectively with the Union as the exclusive representative of all employees in the ap- propriate unit and, if an understanding is reached. embody such understanding in a signed agreement. In order to insure that the employees in the appro- priate unit will be accorded the services of their se- lected bargaining agent for the period provided by law, we shall construe the initial period of certifica- tion as beginning on the date Respondent commences to bargain in good faith with the Union as the recog- nized bargaining representative in the appropriate unit. See Mar-Jac Poultro' Company, Inc., 136 NLRB 785 (1962); Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817; Burnett Con- struction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONC(.USIONS 01 LAW I. The Salvation Army Eventide Residence is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Nursing and Convalescent Home Employees' Division of Local 79, Service Employees Interna- tional Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time nurses aides, orderlies, dietary employees, housekeeping employ- ees, laundry employees, ward clerks, receptionist, maintenance employees and elevator operators em- ployed by the Employer at its nursing home and home for the aged located at 2643 Park Avenue, De- troit, Michigan; but excluding all office employees, full-in employees, department heads, assistant depart- ment head, assistant food service director, dietary su- pervisor, office manager, assistant office manager, confidential employees, guards, and supervisors as de- fined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since February 8, 1979. the above-named labor organization has been and now is the certified and exclusive representative of all employees in the afore- said appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 372 SALVATION ARMY EVENTIDE RESIDENCE 5. By refusing on or about April 2, 1979, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bar- gaining representative of all the employees of Re- spondent in the appropriate unit, Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain, Respondent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed them in Sec- tion 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(l) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that the Respondent, The Salvation Army Eventide Residence, Detroit, Michi- gan, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and con- ditions of employment with Nursing and Convales- cent Home Employees' Division of Local 79, Service Employees International Union, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All full-time and regular part-time nurses aides, orderlies, dietary employees, housekeeping em- ployees, laundry employees, ward clerks, recep- tionist, maintenance employees and elevator op- erators employed by the Employer at its nursing home and home for the aged located at 2643 Park Avenue, Detroit, Michigan; but excluding all office employees, full-in employees, depart- ment heads, assistant department head, assistant food service director, dietary supervisor, office manager, assistant office manager, confidential employees, guards, and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain with the above-named labor organization as the exclusive representative of all employees in the aforesaid appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understand- ing is reached, embody such understanding in a signed agreement. (b) Post at its place of business at 2643 Park Ave- nue, Detroit, Michigan copies of the attached notice marked "Appendix." 6 Copies of said notice, on forms provided by the Regional Director for Region 7. after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon re- ceipt thereof, and be maintained by it for 60 consecu- tive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, de- faced, or covered by any other material. (c) Notify the Regional Director for Region 7, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 6In the event that this Order is enforced by a judgment ofa United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Nurs- ing and Convalescent Home Employees Division of Local 79, Service Employees International Union, AFL-CIO, as the exclusive representa- tive of the employees in the bargaining unit de- scribed below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, upon request, bargain with the above-named Union, as the exclusive representa- tive of all employees in the bargaining unit de- scribed below, with respect to rates of pay, wages, hours, and other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agree- ment. The bargaining unit is: All full-time and regular part-time nurses aides, orderlies, dietary employees, housekeep- ing employees, laundry employees, ward clerks, receptionist, maintenance employees 373 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and elevator operators employed by the Em- ployer at its nursing home and home for the aged located at 2643 Park Avenue, Detroit, Michigan; but excluding all office employees, fill-in employees, department heads, assistant department head, assistant food service direc- tor, dietary supervisor, office manager, assist- ant office manager, confidential employees, guards, and supervisors as defined in the Act. THE SALVATION ARMY EVENTIDE RESI- DENCE 174