Provincial House, Inc.

310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Provincial House , Inc. and Nursing and Convalescent Home Employees Division , Service Employees Interna- tional Union, Local No. 79, AFL-CIO. Case 7-CA-7705 May 4, 1970 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN Upon a charge filed by Nursing and Convalescent Home Employees Division , Service Employees Interna- tional Union , Local No. 79, AFL-CIO (hereinafter called the Union), the Regional Director for the National Labor Relations Board for Region 7, issued a complaint dated January 16, 1970, alleging that Provincial House, Inc., hereinafter called Respondent , had engaged in and was engaging in unfair labor practices within the meaning of Sections 8(a)(5) and ( 1) and 2(6) and (7) of the National Labor Relations Act, as amended . Copies of the charge , complaint, and notice of hearing before a Trial Examiner were duly served upon Respondent. With respect to the unfair labor practices , the com- plaint alleges, in substance , that on or about October 24, 1969 , pursuant to an election in which a majority of unit employees cast ballots for the Union , the said Union was certified by the Board ' as exclusive bargaining representative of Respondent 's employees in the unit found appropriate ; that since on or about December, 22, 1969 , the Union has requested , and is requesting Respondent to bargain collectively with it with respect" to wages, hours, and other terms and conditions of employment of the employees in the unit found appropriate , that since on or about January 6, 1970, Respondent has refused and is refusing to recognize or bargain with the Union as such exclusive bargaining representative . On January 26, 1970 , Respondent filed its answer , denying the commission of the unfair labor practices alleged. On February 3, 1970, the General Counsel filed with the National Labor Relations Board in Washington, D.C., a motion to transfer case to and continue proceeding before the Board and for judgment on the pleadings. The General Counsel contends in effect, that in view of Respondent ' s answer , the facts affirmatively pleaded, and the facts established and issues resolved in the representation proceeding , there are no issues of fact or law requiring a hearing or Trial Examiner ' s decision and recommendation ,, and requests the issuance of a Decision and Order finding the violations as alleged in the complaint . On February 9, 1970 , the Board issued an order transferring proceeding to the Board and on the same date a notice to show cause on or before February 20, 1970 , why the General Counsel ' s motion for'judgment on the pleadings should not be granted. On February 9, 1970, Respondent filed its answer in opposition to motion for transfer of case and judgment ' Decision and Certification of Representative , Case 7-RC-9475 of the pleadings. Respondent has failed to respond to the notice to show cause. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in con- nection with this case to a three-member panel. Upon the entire record in this case, the Board makes the following: Ruling on the Motion for Judgment on the Pleadings The record establishes that pursuant to a Decision and Direction of Election of July 8, 1969, and a Supple- mental Decision and Direction of Election issued by the Regional Director for Region 7 on July 31, 1969, an election was conducted on August 27, 1969, among employees in a unit found appropriate and consisting of: All full-time and regular part-time nurses aides, orderlies, housekeeping employees, dietary employ- ees, laundry employees, and grounds and mainte- nance employees employed by the Employer at its Hastings, Michigan, facility, but excluding all office clerical employees, registered nurses, licensed practical nurses, guards and supervisors as defined in the Act, and all other employees, The Union received a majority of the valid ballots cast. Thereafter, Respondent filed timely "Employer's Objection to Conduct Affecting the Results of the Elec- tion." In a supplemental decision on objections and certification of representative, the Regional Director on" October 24, 1969, overruled all of Respondent's objec- tions and certified the Union as exclusive collective-„ bargaining representative for the employees in the unit. On November 14, 1969, Respondent filed with the Board a request for review of the Regional' Director's supple- mental decision on objections and certification of repre- sentative. Thereafter, on December 4, 1969, the Board denied Respondent's request for review on the ground that Respondent's request raised no substantial issue warranting review. On December 22, 1969, the Union requested that the Respondent bargain with it collectively. This request was refused and on January 12, 1970, the Union filed the charges upon which these proceedings are predicated. In its answer in opposition'to the motion, Respondent contests the Board's assertion of jurisdiction over it and argues, alternatively, that even if there be jurisdic- tion under the Act, the certification in the underlying representation proceeding is invalid. By way of further answer, Respondent contends basically that a hearing is a matter of right in an unfair labor practice proceeding and therefore must be held on the unfair labor practice charge. It is clear that Respondent through both its answer to the complaint and answer in opposition to the motion is seeking to test the validity of the supplemental decision of the Regional Director in overruling its objections and the denial by the Board of its request for review of the Regional, Director's supplemental decision and certification of representative in Case 7-RC-9475. In 182 NLRB No. 45 PROVINCIAL HOUSE, INC addition, Respondent contends that the Board lacks jurisdiction , and, in so claiming , seeks to attack collater ally the stipulation of the parties on which the Regional Director relied in his Supplemental Decision and Direction of Election , in asserting jurisdiction over the Respondent Concerning this issue, the facts set forth in said stipulation satisfy the Board ' s jurisdictional stand- ards applicable to proprietary nursing homes, Respond ent did not seek review of the Supplemental Decision and Direction of Election, and the Regional Director's jurisdictional finding is supported by substantial evi dence Accordingly, Respondent's contention with respect to jurisdiction raises no material issue warranting a hearing The remaining issues relate to Respondent's claim that the Regional Director erred in concluding that its objections to the election failed to raise any substantial and material issues of fact warranting a hear ing In this connection Respondent has made no offer of newly discovered or previously unavailable evidence It is well settled that the Board has authority to consider and determine motions for summary judgment and that in such proceedings there is no absolute right to a hearing where there are no factual issues to be resolved Having made an independent review of the record in Case 7-RC-9475, we find that Respondent's contention that the Regional Director erred in overruling its objec- tions without a hearing raises no material issue affecting the validity of the certification As all material issues have been decided by the Board or are admitted by Respondent, there are no matters requiring a hearing before a Trial Examiner Accordingly, the General Counsel's motion for judgment on the plead- ings is granted On the basis of the record before it the Board makes the following FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT Respondent, a Delaware Corporation, is engaged in the operation of four proprietary nursing homes through out the State of Michigan The place of business located at Hastings, Michigan, is the only facility involved in this proceeding During the year ending December 31, 1968, Respondent, in the course and conduct of its business operations , received gross revenue in excess of $250,000 from the rendering of convalescent services During a 12-month period ending June 30, 1969, Respond ent purchased natural gas in excess of $4,000 from Consumers Power Co , a Michigan public utility Ninety (90) percent of the gas supplied by said utility to Respond ent was piped directly from outside the State of Michi gan On the basis of the foregoing, we find that the Employer's operations satisfy the Board's jurisdictional standards for proprietary nursing homes2 and that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act Y See e g University Nursing Homes Inc 168 NLRB 263 II THE LABOR ORGANIZATION INVOLVED 311 Respondent admits, and we find that , Nursing and Convalescent Home Employees Division , Service Employees International Union, Local No 79, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act III THE UNFAIR LABOR PRACTICES A The Representation Proceeding I The unit The following employees of Respondent constitute a unit appropriate for the purposes of collective bargain mg within the meaning of Section 9(b) of the Act All full time and regular part-time nurses aides, orderlies, housekeeping employees, dietary employ ees, laundry employees, and grounds and mainte- nance employees employed by the Respondent at its Hastings, Michigan, facility, but excluding all office clerical employees , registered nurses, licensed practical nurses, guards and supervisors as defined in the Act and all other employees 2 The certification On August 27, 1969, a majority of the employees of the Respondent in said unit , in a secret election conducted under the supervision of the Regional Director for Region 7, designated the Union as their representative for the purpose of collective bargaining with the Respondent On October 24, 1969, the Regional Director for Region 7 certified the Union as the collective bargain- ing representative of the employees in the said unit and the Union continues to be such representative B The Request To Bargain and the Respondent's Refusal Commencing on or about December 22, 1969, and continuing to date, the Union has requested and is requesting the Respondent to bargain collectively with it as the exclusive collective-bargaining representative of all the employees in the above described unit Since on or about January 6, 1970, and continuing to date, the Respondent has refused , and continues to refuse, to bargain collectively with the Union as the exclusive collective-bargaining representative of all the employees in said unit We find that the Union was duly certified by the Board as collective bargaining representative of the employees of the Employer in the appropriate unit and that the Union at all times since October 24, 1969, has been the exclusive collective-bargaining representa- tive of all the employees in the above described unit, within the meaning of Section 9(a) of the Act We further find that the Respondent has, since on or about January 6, 1970, refused to bargain collectively with the Union as the exclusive bargaining representative of its employees in the appropriate unit and that by 312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD such refusal , the *Respondent has engaged' 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 LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above , occurring in connection with its operations as described in section I, above , have a close , intimate, and substantial relation 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. I V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, we shall order that it cease and desist therefrom and, upon request , bargain collec- tively with the Union as the exclusive representative of all employees in the appropriate unit , and, if an understanding is reached, embody such understanding in a signed agreement . In order to insure that the employ- ees in the appropriate unit will be accorded the services of their elected bargaining agent for the period provided by law, we shall construe the initial year of certification as beginning on the date the Respondent commences to bargain in good faith with the Union as the recognized bargaining representative in the appropriate unit. See: Mar-Jac Poultry Company, Inc., 136 NLRB 785; Com- merce Company dlbla Lamar Hotel, 140 NLRB 226, 229, enfd. 328 F.2d 600 (C A 5), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1419, 1421, enfd. 350 F. 2d 57 (C. A. 10) CONCLUSIONS OF LAW 1. Provincial House , Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Nursing and Convalescent Homes Employees Divi- sion , Service Employees International Union , Local No. 79, 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, housekeeping employees , dietary employees, laundry employees , and grounds and maintenance employees employed by Respondent at its Hastings, Michigan , facility, but excluding all office clerical employees , registered nurses, licensed practical nurses, guards and supervisors as defined in the Act, and all other employees , constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since October 24, 1969 , the above-named labor organization has been and now is the certified and exclu- sive representative of all employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 5. By refusing on or'about January 6, 1970, and at all times thereafter,.to bargain collectively with the above-named labor organization as the exclusive bargain- ing representative of all the employees of the Respondent in the aforesaid appropriate unit , the Respondent has engaged 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 , its employees in the exercise of the rights guaranteed them in Section 7 of the Act, and has thereby engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair prac- tices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(d) of the National Labor Rela- tions Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Provincial House, Inc , Hastings , Michigan, its officers , agents, successors , and assigns , shall: i 1. Cease and desist from: ' (a) Refusing to bargain collectively concerning the rates of pay, wages, hours, and other terms and condi- tions of employment with Nursing and Convalescent Home Employees Division , Service Employees Interna- tional Union, Local No. 79, AFL-CIO, as the exclusive bargaining representative of its employees in the follow- ing appropriate unit- , , All full-time and regular part -time nurses aides, orderlies, housekeeping employees, dietary employ- ees, laundry employees , and grounds and mainte- nance employees employed by Respondent at its Hastings, Michigan, facility, but excluding all office clerical employees , registered nurses, licensed prac- tical nurses, guards and supervisors as defined in the Act, and all other employees (b) In any like or related manner interfering with, restraining , or coercing employees in the exercise of the rights guaranteed them by 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 understanding is reached , embody such understanding in a signed agree- ment. (b) Post at its Hastings, Michigan , place of business, copies of the attached notice marked "Appendix."3 ' In the event that this Order is enforced by a judgment of a 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 •• PROVINCIAI Copies of said notice, on forms provided by the Regional Director for Region 7, shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material (c) Notify said Regional Director for Region 7, in writing, within 10 days from the date of this Decision and Order, what steps the Respondent has taken to comply herewith 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 with nursing and convalescent home employees division, service employees international union , local no 79, AFL-CIO , as the exclusive representative of the employees in the bargaining unit described 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 HOUSE, INC 313 WE WILL, upon request , bargain with the above- named Union as the exclusive representative of all our employees in the bargaining unit described below with respect to rates of pay, wages, hours, and other terms and conditions off 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 nurses aides, orderlies, housekeeping employees dietary employees, laundry employees, and grounds and maintenance employees employed by Respondent at its Hastings, Michigan , facility, but excluding all office clerical employees, reg- istered nurses, licensed practical nurses, guards and supervisors as defined in the Act, and all other employees PROVINCIAL HOUSE, INC (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material Any questions concerning this notice or compliance with its provisions , may be directed to the Board s Office 500 Book Building, 1249 Washington Boulevard Detroit Michigan 48226 Telephone 313-226-3200