Good Samaritan Nursing Home, Inc.

DECI)(SIONS 01: NATIONAL. I.ABOR RELA'IONS BOARI) Good Samaritan Nursing Home. Inc. and Retail Clerks Union Local 536, Chartered by United Food and Commercial Workers International Union AFL-CIO. C('se 33 ('A 3974 July 20, 1979 DECISION AND ORDER BY CIIAIRMAN FANNIN(; ANI) MIMBRS JI!NKINS ANI) PIN llOl() Upon a charge filed on November 8 1978, by Re- tail Clerks Union Local 536, chartered by United Food and Commercial Workers International Union. AFL-CIO herein called the Union, and duly served on Good Samaritan Nursing Home, herein called the Respondent, the General Counsel of the National La- bor Relations Board, by the Regional Director for Region 33, issued a complaint on November 14, 1978. 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 (I) and Section 2(6) and (7) of the Na- tional abor Relations Act, as amended. Copies of the charge and the complaint were duly served on the parties to this proceeding. With respect to the unfair labor practices, the com- plaint alleges in substance that on August 15. 1978. following a Board election in Case 33 RC 2298, the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate;2 and that, commencing on or about November 3, 1978, and at all times there- after, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining representative. although the Union has requested and is requesting it to do so. On November 21, 1978, Respondent filed its answer to the complaint admitting in part, and denying in part. the allegations in the complaint. On December 18, 1978, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on December 27. 1978, the Board issued an order transferring the pro- 'The name of' the Charging Part). lirmerlk Retail Clerks I nion Local 536. chartered by Retail Clerks International nion. AFL. C10. i amended to reflect the change resulting from the merging o, Retail Clerks Interna- tional Association and Amalgamated Meatcutters and Butcher Workmen of North America on June 7, 1979. 1 Official notice is taken ,o' the record in the representation proceeding. Case 33 RC 2298 as the term "record" is defined in Secs I1O2.68 and 102 6 9(g) of the Board's Rules and Regulatios Series 8. as amntended. See LV7' Elcitrrosirtems. Irn., 166 NLRB 938 (1967), enfi. 1X88 F.2d hX83 4h (r 1968): Golden Age everage Co). 167 NI RB 151 (1967). enid. 415 F.2d 26 (5th Cir. 1969) Interrtpe Co. v. Penello. 269 L.Supp 573 (D.( Va. 1967): Follett Corp., 164 NlRB 378 (1967), enid. 397 F.2d 91 (7th ('ir 1968X): Sec 9(d) o the NL RA. as amended. ceeding to the Board and a Notice o Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respondent there- after filed an opposition to the Motion for Summary Judgment. Pursuant to the provisions ot Section 3(h) of the National abor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-menmber panel. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment In its answers to the complaint and to the Notice To Show Cause. Respondent admits that it refused to bargain with the Union, but denies that it thereby violated Section 8(a)(5) and ( I ) of the Act. Respon- dent attacks the Ulnion's certification contending that the unit of all licensed practical nurses (LPNs) is in- appropriate because the LPNs are supervisors within the meaning of Section 2(l ) of the Act. Our review of the record, including that in Case 33- RC 2298, reveals that a Board-conducted election was held in a unit of I.PNs pursuant to the Regional Director's June 23. 1978, I)ecision and Direction of Election. On July 5. 1978. Respondent requested re- view of that Decision and Direction, contending that the l.PNs were supervisors. On July 19. 1978. the Board denied the request for review. Following the July 20, 1978, election, in which a majority of the valid votes cast were for the Union, Respondent timely filed objections alleging that the Board agent conducting the election improperly refused challenges to the ballots of all voting LPNs. In an August 15, 1978, Supplemental Decision, the Regional Director recommended that all objections be overruled and is- sued a Certification of Representative. Respondent's August 28. 1978, request for review of the Supple- mental Decision and C(ertification. on the ground that the LPNs were supervisors was denied by the Board on October 10. 1978. 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 reliti- gate issues which were or could have been litigated in a prior representation proceeding.3 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 newl\ discovered or previ- ously unavailable evidence, nor does it allege that any 'See Prrhnr-h Plwi (;lho ( s, '. LR 313 1 46, 162 (1941). Rules aind Regulaltios f' the Board. Sec, 102.671 ) and 102 691c. 243 NLRB No. 107 600 C(OOt) SANlARIIAN Nt RSING(i OME. INC . special circumstances exist herein which would re- quire the Board to reexamine the decision made in the representation proceeding. We theretfore find that Respondent has not raised any issue which is prop- erly litigable in this unfair labor practice proceeding. Accordingly, we grant the Motion or Summar, Judgment. On the basis of the entire record, the Board makes the following: FINDIN(is )l- FA( I 1. 1IIF BIUSINESS () 11lilt RSIP()NI)IN I The Respondent. Good Samaritan Nursing Home. is a Delaware corporation operating an intermediate nursing care home at its East Peoria. Illinois, facilit 5. During a representative 12-month period. Respon- dent had gross revenues exceeding $100,000. 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. II. 'ril I.ABO()R OR(;ANIZAI'I(ON INVOI.VI!I) Retail Clerks Union Local 536. Chartered United Food and Commercial Workers International Union, AFL-CIO, is a labor organization within the mean- ing of Section 2(5) of the Act. 111. tilE tINIAIR L.ABO)R PRA("('IES A,. The Representation Proceeding I. 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 licensed prac- tical nurses employed by the Employer at its East Peoria. Illinois. ficility: but excluding all registered nurses, office clerical employees, all other employees. guards and supervisors as de- fined in the Act. 2. The certification On July 20, 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 33 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 August 15, 1978. and the inion contin- ues to be such exclusive representatise within the meaning of Section 9(a) of the Act. B. h1 Rques. 7IO Brgain and Res.vondecnl' Rcftisti ('ominencig on or about October 27. 1978. and at all times thereafter. the LInion has requested Respon- dent to bargain collectively with it as the exclusive collective-bargaining representatie of all the emploN- ees in the above-described unit. Commencing on or about November 3. 1978. 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 November 3. 1978. and at all times thereafter, refused to bargain collectively with the Union as the exclu- sive representative of the employees in the appropri- ate unit, and that, by such relusal, Respondent has engaged in and is engaging in untfair labor practices within the meaning of Section 8(a)(5) and (I) of the Act. IV. 1t 11I 11('1 11 tll M UNFAIR AiBOR P'RA('I('S l'l)N ('OMNIMIER('t The activities of Respondent. set forth in section III. above. occurring in connection with the pera- tions described in section I. above, have a close, inti- mate, and substantial relationship to trade. traffic. and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. IF11 RIMH-I)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 he accorded the services of their se- lected bargaining agent f'or the period prov ided hb law. we shill construe the initial period of certifica- tion as beginning on the date Respondent commences to bargain in good faith with the Ulnion as the recog- nized bargaining representative in the appropriate 601 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unit. See Mar-Jac Poultry Company y, In., 136 NLRB 785 (1962); Commerce Compan d/h/a Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Company.v, 149 NLRB 1419. 1421 (1964), enfd. 350 F.2d 57 (lOth Cir. 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CON(LUSIONS 01 LAW 1. Good Samaritan Nursing Home, Inc., is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Retail Clerks Union Local 536, chartered by United Food and Commercial Workers International 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 licensed practical nurses employed by the Employer at its East Peoria, Illinois, facility; but excluding all registered nurses, office clerical employees, all other employees, guards, and supervisors as defined in the Act consti- tute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since August 15, 1978, 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. 5. By refusing on or about November 3, 1978, 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 to them in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a)( ) 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, Good Samaritan Nursing Home, Inc., East Peoria. Illinois. its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, and other terms and conditions of employment with Retail Clerks Union Local 536. chartered by United Food and Commercial Workers International Union, AFL-CIO. as the exclusive bar- gaining representative of its employees in the follow- ing appropriate unit: All full-time and regular part-time licensed prac- tical nurses employed by the Employer at its East Peoria. Illinois, facility: but excluding all registered nurses, office clerical employees, all other employees, guards and supervisors as de- fined 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 East Peoria. Illinois, facility copies of the attached notice marked "Appendix."4 Copies of said notice, on forms provided by the Regional Direc- tor for Region 33. after being duly signed by Respon- dent's representative, shall be posted by Respondent immediately upon receipt thereof; and be maintained by it for 60 consecutive days thereafter, in conspicu- ous places. including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said no- tices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 33, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. MEMBER JENKINS, dissenting: Inasmuch as I would have accepted the challenges to the ballots of the LPNs and would have resolved the challenges on the merits. I would not grant the Motion for Summary Judgment. 4 In the event that this Order is enforced b) a Judgment olf a United States Court of Appeals, the words in the notice reading "Posted b Order of the National Labor Relations Board" shall read "Posted Pursuant Io a Judgment of the United States Court of Appeals Enfbrcing an Order ot the National l.abor Relations Board" 602 GO()()I) SAMARIAN NRSING H()OME. INC. No I(1 To IM)iL oiI yis P(OSI D IY ORI)IR OF I i NAII()NAI L.AB()R R I AIIONS BARI) An Agency of the United States Government WI WIL. N refuse to bargain collectively concerning rates of' pay. wages, hours, and other terms and conditions of employment with Retail Clerks Union Local 536, chartered b United Food Commercial Workers International Ulnion. AFL CIO, as the exclusive representative of the employevs -in the bargaining unit described be- low. Wti Wll.. NOI in any like or related manner interfere with, restrain. or coerce our employees in the exercise of the rights guaranteed them h\ Section 7 of the Act. Wi W\i.l, upon request, bargain with the abo ve-named ULnion. as the exclusive representa- tive of' all employees in the bargaining unit de- scribed below. with respect to rates of' pa'. wages, hours. and other terms and conditions of employment. and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All full-time and regular part-time licensed practical nurses emplo.ed bh the Emplo\er at its East Peoria. Illinois, facililty: but excluding all registered nurses. office clerical emplo\ees. all other employees. guards and supervisors as defined in the Act. Good SAMARIIAN NI:RSIN( IO()MI . I . 60)3