Sunshine Convalescent Hospital, Inc.,

688 DECISIONS OF NATIONAL Sunshine Convalescent Hospital, Inc., and Service and Hospital Employees Union, Local 399, Service Employees International Union, AFL-CIO. Case 21-CA-9479 January 5, 1971 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS Upon a charge filed on August 20, 1970, by Service and Hospital Employees Union, Local 399, Service Employees International Union, AFL-CIO, herein called the Union, and duly served on Sunshine Convalescent Hospital, Inc., herein called the Res- pondent, the General Counsel of the National Labor Relations Board, by the Acting Regional Director for Region 21, issued a complaint on September 11, 1970, 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 before a Trial Examiner were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that on or about July 1, 1970, following a Board election in Case 21-RC-11646, the Union was duly certified as the exclusive collective-bargaining representative of Res- pondent's employees in the unit found appropriate;' and that, commencing on or about August 6, 1970, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining represent- ative, although the Union has requested and is requesting it to do so. On September 24, 1970, Respondent filed its answer to the complaint admit- ting in part, and denying in part, the allegations in the complaint, and requesting that the complaint be dismissed. On October 5, 1970, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment, with documents attached there- to and made a part thereof. The General Counsel submits that the Respondent, by its answer, seeks to relitigate matters previously litigated and decided in the representation proceeding and that no issues have been raised by the answer which warrant a hearing in the instant case. Subsequently, on October 8, 1970, I Official notice is taken of the record in the representation proceeding, Case 2I- RC-I 1646 as the term "record" is defined in Secs 102 68 and 102 69(f) of the Board's Rules and Regulations , Series 8 , as amended See LTV Elecirosystems, Inc, 166 NLRB 938, enfd 388 F 2d 683 (C A 4, 1968), Golden Age Beverage Co, 167 N LR B 151, IntertypeCo v Penello, LABOR RELATIONS BOARD 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, entitled Employ- er's Opposition to General Counsel's Motion for Summary Judgment. 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 connection with this case to a three-member panel. 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 in Case 21-RC-11646, the Regional Director for the Board's Region 21 on April 1, 1970, conducted an election by secret ballot in which a majority of the employees of the Respondent in the stipulated unit selected and designated the Union as their representative for the purposes of collective bargaining with the Union. The Respondent filed timely objections to the conduct of the election, contending that the Union unlawfully interfered with the election by giving unlawful speeches to assembled employees on company time on the day of the election and by the Union's campaign techniques involving trespass and work disruptions. After investigating the objections, the Regional Director on April 24, 1970, issued his Report on Objections and Challenged Ballots in which he recommended that the objections be overruled and that the six challenged ballots be counted since they were sufficient to affect the results of the election.2 In its unpublished Decision and Direction of June 19, 1970, the Board found that the Respondent's timely exceptions to the Regional Director's Report raised no material or substantial issues of fact warranting reversal of the Regional Director's findings and recommendations which the Board adopted. The Board also directed that after the six challenged ballots were opened and counted, the Regional Director prepare and serve upon the parties a revised tally of ballots and an appropriate certifi- cate. As the revised tally of ballots showed that, of the 50 valid votes counted, 28 were for and 22 against the Union, the Regional Director on July 1, 1970, issued his Certification of Representative, certifying the Union as the exclusive representative of the Respon- dent's employees in the stipulated unit. 269 F Supp 573 (D C V a , 1967), Follett Corp, 164 NLRB 378, enfd 397 F 2d 91 (C A 7, 1968), Sec 9(d) of the NLRA 2 The parties had stipulated that the six employees , whose ballots were challenged , were eligible to vote and that their ballots be opened and counted 187 NLRB No. 98 SUNSHINE CONVALESCENT HOSPITAL 689 In its answer to the complaint, the Respondent denies that the Union had been selected on April 1, 1970, and since that time has been the bargaining representative of the majority of the employees in the stipulated unit, and that on July 1, 1970, was certified as such.3 This denial, as well as the Respondent's response to the Notice To Show Cause, presents the same representation issues which had been consid- ered and determined by the Board in its Decision and Direction where the Board, after reviewing the representation record, overruled the Respondent's objections to the conduct of the election because they raised no material or substantial issues of fact or law.4 It is well established that, in the absence of newly discovered or previously unavailable evidence or special circumstances, a respondent in an 8(a)(5) proceeding is not entitled to relitigate issues which were or could have been raised in the prior representa- tion proceeding.5 The Respondent makes no claim to any newly discovered or previously unavailable evidence bearing on the issues raised in the represent- ation proceeding. In adopting the Regional Director's findings and recommendations, the Board considered the Regional Director's Report, and the Employer's exceptions, which it found raised no substantial or material issues of fact.6 As all substantive contentions now made were raised in the representation case, and were there considered and rejected by the Board, and as all other factual allegations of the complaint stand admitted by the Respondent's answer thereto, there are no matters in issue requiring a hearing before a Trial Examiner. All issues raised by the Respondent in this proceed- ing were or could have been litigated in the prior representation proceeding, and the Respondent does not offer to adduce at a hearing any newly discovered or previously unavailable evidence, nor does it allege that any special circumstances exist herein which would require the Board to reexamine the decision made in the representation proceeding. We therefore find that the Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. We shall, accordingly, grant the Motion for Summary Judgment. I We find no merit in the Respondent's contention raised in its response that the pleadings establish a conflict with respect to when the Union was selected and when it was certified and that this contention warranted denial of the Motion for Summary Judgment As appears from the representation case record, the Union was selected by a majority of the employees in the April I, 1970, election, the final results of which were not definitively determined until the revised tally of ballots was issued on June 25, 1970 Thereafter, on July 1, 1970, the Union was certified Accordingly, we find no conflict in the pleadings warranting denial of the Motion for Summary Judgment 4 We find no merit in the Respondent's procedural contention which relies on the case of Pepsi-Cola Buffalo Bottling Company v N L R B, 409 F 2d 676 (C A 2), cert denied 396 U S 904 That case concerned the validity of the Board's review procedures with respect to cases decided by a Regional Director under the authority delegated to him pursuant to Section On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent, a corporation, is engaged in the operation of a convalescent hospital in Paramount, California. During the 12-month period ending January, 1970, Respondent, in the course and conduct of its business operations, had a gross volume of business in excess of $100,000, and purchased and received products which originated outside the State of California valued in excess of $2,500. We find, on the basis of the foregoing, that Respondent 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. THE LABOR ORGANIZATION INVOLVED Service and Hospital Employees Union, Local 399, Service Employees International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of the Respondent consti- tute a unit appropriate for collective -bargaining purposes within the meaning of Section 9(b) of the Act: All employees of the Employer, including dietary employees, maids, janitors, storekeepers, maintenance employees, grounds keepers, order- lies, nurses' aides, licensed vocational nurses, laboratory helpers, and laundry employees em- ployed by the Employer at its facility located at 8835 Vans Street, Paramount, California, exclud- ing all office clerical employees, physicians, 3(b) of the Act The instant case, on the other hand, rests on a decision made by the Board after a review of the entire record, as provided in the stipulation executed by the Respondent in Case 21-RC-11646 The Respondent's reliance on the above-cited case is, for that reason and apart from any other considerations, misplaced 5 See Pittsburgh Plate Glass Company v N LR B, 313 U S 146, 162 (1941), Rules and Regulations of the Board, Secs. 102.67 (f) and 102 69(c). 6 In its exceptions to the Regional Director's Report and in its response to the Notice To Show Cause, the Respondent noted that the Regional Director had not discussed the affidavit of Sam Menlo who allegedly saw the union organizer speaking to an assembled group of employees in the hall shortly before voting time However, neither in its exceptions nor in its response did the Respondent submit the affidavit to the Board Accordingly, the Board found, and now reaffirms the finding , that the unsupported exception is without merit 690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD registered nurses, professional employees, guards, watchmen, and supervisors as defined in the Act. 2. The certification On April 1, 1970, a majority of the employees of Respondent in the stipulated unit, in a secret ballot election conducted pursuant to a Stipulation for Certification Upon Consent Election under the supervision of the Regional Director for Region 21 designated the Union as their representative for the purpose of collective bargaining with the Respondent. The Union was certified as the collective-bargaining representative of the employees in said unit on July 1, 1970, and the Union continues to be such exclusive representative within the meaning of Section 9(a) of the Act. 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 employees in the appropriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certification as beginning on the date Respondent commences to bargain in good faith with the Union as the recogniz- ed bargaining representative in the appropriate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785; Commerce Company d/b/a 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). The Board, upon the basis of the foregoing facts and the entire record, makes the following: B. The Request To Bargain and Respondent's Refusal Commencing on or about July 14, 1970, and at all times thereafter, the Union has requested the Respon- dent to bargain collectively with it as the exclusive collective-bargaining representative of all the employ- ees in the above-described unit. Commencing on or about August 6, 1970, and continuing at all times thereafter to date, the Respondent has refused, and continues 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 the Respondent has, since August 6, 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 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 Respondent set forth in section III, above, occurring in connection with its operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in and is engaging 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 collectively with the Union as the CONCLUSIONS OF LAW 1. Sunshine Convalescent Hospital, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Service and Hospital Employees Union, Local 399, Service Employees International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All employees of the Employer , including dietary employees, maids, janitors, storekeepers, maintenance employees , grounds keepers, orderlies, nurses' aides , licensed vocational nurses, laboratory helpers, and laundry employees employed by the Employer at its facility located at 8835 Vans Street, Paramount, California, excluding all office clerical employees, physicians, registered nurses, professional employees, guards, watchmen, and supervisors as defined 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 July 1, 1970, the above -named labor organization has been and now is the certified and exclusive representative of all employees in the aforesaid appropriate unit for the purpose of collec- tive bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about August 6 , 1970, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employees of Respondent in the appropriate unit, 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, employees in the exercise of the rights guaranteed to them in SUNSHINE CONVALESCENT HOSPITAL Section 7 of the Act, and thereby has 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 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 Relations Board hereby orders that Respondent, Sunshine Convalescent Hospital, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment, with Service and Hospital Employees Union, Local 399, Service Employees International Union, AFL-CIO, as the exclusive bargaining repre- sentative of its employees in the following appropriate unit: All employees of the Employer, including dietary employees, maids, janitors, storekeepers, maintenance employees, grounds keepers, order- lies, nurses' aides, licensed vocational nurses, laboratory helpers, and laundry employees em- ployed by the Employer at its facility located at 8835 Vans Street, Paramount, California, exclud- ing all office clerical employees, physicians, registered nurses, professional employees, guards, watchmen, and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in 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 Paramount, California, facility copies of the attached notice marked "Appendix." 7 Copies of said notice, on forms provided by the Regional Director for Region 21 after being duly signed by Respondent's representative, shall be posted by 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 Respondent to insure that said notices are not altered, defaced, or covered by any other material. 691 (c) Notify the Regional Director for Region 21, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 7 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 be changed to 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 Service and Hospital Employees Union , Local 399, Serv- ice Employees International Union , 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. WE WILL, upon request, bargain with the above- named Union, as the exclusive representative of all employees in the bargaining unit described below, with respect to rates of pay , wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such under- standing in a signed agreement . The bargaining unit is: All employees of the Employer, including dietary employees, maids, janitors , storek- eepers, maintenance employees, grounds keepers, orderlies, nurses' aides, licensed vocational nurses, laboratory helpers, and laundry employees employed by the Employ- er at its facility located at 8835 Vans Street, Paramount , California, excluding all office clerical employees, physicians, registered nurses, professional employees, guards, watchmen, and supervisors as defined in the Act. SUNSHINE CONVALESCENT HOSPITAL, INC. (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. 692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This notice must remain posted for 60 consecutive with its provisions may be directed to the Board's days from the date of posting and must not be altered , Office, Eastern Columbia Building, 849 South Broad- defaced, or covered by any other material . way, Los Angeles, California 90014, Telephone Any questions concerning this notice or compliance 213-688-5200.