Shalom Nursing Home

DECISIONS OF NATIONAL LABOR RELATIONS BOARD National Council of Young Israel d/b/a Shalom Nurs- ing Home and Local 144, Hotel, Hospital, Nursing Home and Allied Health Services Union, SEIU, AFL-CIO. Cases 2-CA-15130 and 2 RC-17205' March 15, 1979 DECISION, ORDER, AND DIRECTION Upon a charge filed on September 6, 1977, by Lo- cal 144, Hotel, Hospital, Nursing Home and Allied Health Services Union SEIU, AFL-CIO, herein called the Union, and duly served on the National Council of Young Israel d/b/a Shalom Nursing Home, herein called Respondent. the General Coun- sel of the National Labor Relations Board, by the Regional Director for Region 2, issued a complaint on October 12, 1977, 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 National Labor Relations Act, as amended. Copies of the charge, complaint, and notice of hearing befbre 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 July 19, 1977, following a Board election in Case 2 RC-17205, 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 September 1, 1977, 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 October 24, 1977, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On November 18, 1977, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on November 25, 1977, the Board issued an order transferring the pro- ceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary I he representation proceeding has been joined with the instant unfair labor practice proceeding in order to determine the issues that have been raised in both proceedings. Royv N li.otspeih Pubhlishing Co., 204 NI.RB 517 I1973). Of()ficial notice is taken of the record in the representation proceeding, Case 2 RC 17205, as the term "record" is defined in Secs. 102.68 and 102h9(g) of the Board's Rules and Regulations Series 8, as amended. See .7'1 El( trvririnm., Inc., 166 N.RB 938 (1967). enfd. 388 F.2d 683 (4th Cirt. 1968): (iicn Agie Beverage C(o., 167 NLRB 151 (1967). enfd. 415 F.2d 26 (5th Cir. 1969) Inrterrvpci (C . Penello, 269 I Supp. 573 (DC.Va.. 1967); Filtt (Corp. 164 NI.RB 378 (1967). enfd. 397 F.2d 91 (7th Cir. 1968); Sec. 9(d) of the NLRA. as amended. Judgment should not be granted. Respondent there- after filed a response to Notice To Show Cause. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment Pursuant to a Stipulation for Certification Upon Consent Election, executed by the parties and ap- proved by the Regional Director for Region 2, on February 19, 1976, an election by secret ballot was conducted on April 7, 1976, under the direction and supervision of the Regional Director. The tally was: 76 for and 43 against the Petitioner; there were 5 challenged ballots, a number insufficient to affect the results. On April 12, 1976, the Employer filed timely objections to the election. On May 14, 1976, the Re- gional Director issued her Report on Objections and Recommendations in which she recommended that four of the Employer's six objections be overruled, and that the Board hold a hearing on the first two objections in order to resolve issues of fact and credi- bility raised therein. The Board, on July 27, 1976, issued its Decision and Order adopting the Regional Director's recommendations. Thereafter, a hearing was held in Region 2 before Hearing Officer John J. Dellaverson on August 24 and 25; September 20; De- cember 7, 10, 15, and 22, 1976; and January 5, 1977. Subsequently, the Hearing Officer issued his Report on Objections on March 24, 1977, and the Employer, on April 5, 1977, filed an exception to Objection 1. The Petitioner filed no exceptions. On July 19, 1977, the Board issued a Supplemental Decision' in which the Board certified the Petitioner. The Board reversed the Hearing Officer's recommendation that Objection 2, which alleged a violation of the Hollywood Ceram- ics4 rule, be sustained and the election be set aside. The Board held that despite the validity of Hollywood Ceramics at the time the Hearing Officer issued his report, Shopping Kart Food Market, Inc.,' had become the applicable precedent when it issued April 8, 1977. Chairman Fanning dissented on the basis that the Pe- titioner had not filed any exceptions to the Hearing Officer's recommendation that Objection 2 be sus- tained, and because the alleged misrepresentations were violative of Hollywood Ceramics. Members Jen- kins and Truesdale agree that a review of the record was unwarranted in light of Petitioner's failure to ex- cept, and agree with the Chairman that, in any event, the Hearing Officer correctly applied the standards of Hollywood Ceramics to the misrepresentation allega- 1230 NL.RB 980 (Chairman Fanning dissenting). 4 Holh wood Ceramics C'ompany, Inc.. 140 NLRB 221 (1962). 5228 NLRB 1311 (Chairman Fanning and Member Jenkins dissenting). 241 NLRB No. 9 62 SHALOM NURSING HOME tions. See General Knit of California, Inc., 239 NLRB 619 (1978). ORDER It is hereby ordered that the Supplemental Deci- sion and Order issued on July 19, 1977 be. and it hereby is, vacated. IT IS FURTHER ORDERED that the General Counsel's Motion for Summary Judgment be, and it hereby is, denied. IT IS FURTHER ORDERED that the complaint herein be, and it hereby is, dismissed in its entirety. IT IS FURTHER ORDERED that the certification issued to the Petitioner in Case 2-RC-17205 be, and it hereby is, revoked, and that Case 2-RC-17205 be, and it hereby is, remanded to the Regional Director for Region 2 to conduct a new election. [Direction of Second Election omitted from publi- cation.]6 6 Excelsior footnote omitted from publication.] MEMBERS PENELLO and MURPHY dissenting: For the reasons set forth in our respective dissent- ing opinions in General Knit.,' we believe that the Shopping Kart decision' was properly applied in the underlying representation proceeding so as to over- rule the Employer's misrepresentation objection and certify the Petitioner.9 Todlay, the General Knit major- ity vacates that certification and thus confirms our deep conviction that the Holly'wood Ccranic. rule op- erates to delay and frustrate collective bargaining. The employees voted for union representation al- most 3 years ago. The time for directing an election is past. We would order the Employer to bargain. Now. 'General Knit of California, Inc. 239 NI.RB 619(1978) Member Penello also relies on his dissenting opinion in Blackman- hler Chemical Dision Snaillo Corporation, 239 NLRB 637 (1978). I Shopping Kart Food Market, Inc. 228 NLRB 1311 (1977) 9 230 NLRB 980 1977). The fact that the Petitioner had not excepted ito the Hearing Officer's recommendation that the misrepresentation objection be sustained under Hollywood Ceramics Company. Inc, 140 NLRB 221 (1962), was not fatal. The Board's authontN to act in the absence of an exception is well established and has been repeatedly exercised in the past See, e.g.. N. LR.B. v. WTVJ. Inc., 268 F.2d 346, 348 (5th ('ir 1959); N.L.R.B. v. M L Townrend, 185 F.2d 378, 384 (9th Cir. 1950. cert. denied 341 U.S. 909; Otis Hospital, Inc.,. 219 NLRB 164(1975). Further,. the Board's sua sponre action did not prejudice the Emplo)er's substantive rights. as it had an opportunity to present its arguments in a motion for reconsideratlon and did, in fact. do so. 63