Mar Salle Convalescent Home

MAR SALLE CONVALESCENT HOME Mar Salle, Inc. d/b/a Mar Salle Convalescent Home and Service Employees International Union, Local 536, AFL-CIO. Case 5-CA-4134 October 29, 1968 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND JENKINS On August 20, 1968, Trial Examiner Charles W Schneider issued his Decision in the above-entitled case, finding that Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. The Charging Party filed exceptions to the Decision. 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 The Board has reviewed the rulings of the Trial Examiner, including his granting of the General Counsel's motion for judgment on the pleadings, and Respondent's response to the Trial Examiner's Show Cause Order, and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.' ORDER2 Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor I Respondent contends that the Board is precluded from asserting jurisdiction because of a lack of proof on the record that the necessary legal jurisdiction exists. Respondent 's answer to the complaint, how- ever , admits that its gross revenues for the preceding year exceeded $100,000 , and that it purchased goods and materials valued at in .. ess of $25,000 from suppliers located in the District of Columbia Moreover, Respondent's principal office and place of business is located in the District of Columbia where the Board asserts jurisdiction on a plenary basis . The Westchester Corporation, 124 NLRB 194, M. S. Ginn &Co, 114NLRB 112. 2 The Union excepts to the Trial Examiner 's Recommended Order, contending that the Board should order a monetary remedy to make the employees whole for losses they may have suffered as a result of Respondent 's unlawful refusal to bargain (including losses incurred as a result of the employees strike action). It also urges that the Board order Respondent to grant , upon request , a union shop provision , including a dues check-off provision . We deem it inappropriate in this case, however, to depart from our existing policy with respect to remedial orders in cases involving violations of Section 8(a)(5). 173 NLRB No. 69 429 Re:ations Board hereby adopts as its Order the Recommended Order of the Trial Examiner and Orders that Respondent, Mar Salle, Inc , d/b/a Mar Sa'.1e Convalescent Home, Washington, D. C., its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recom- mended Order. TRIAL EXAMINER'S DECISION THE REPRESENTATION PROCEEDING' Upon petition filed under Section 9(c) of the National Labor Relations Act (29 U.S.C A 159 (c)) on February 5, 1968, by Building Service Employees' International Union, Local 536, Building Service Employees' International Union, AFL-CIO,' herein called the Union,3 a hearing was held by the Regional Director for Region 5 of the Board who subsequently issued a Decision and Direction of Election in an appropriate bargaining unit, described hereinafter, of the employees of Mar Salle, Inc., d/b/a Mar Salle Convalescent Home, Washington, D C., herein called the Respondent On March 13, 1968, the Respondent filed a Request for Review of the Decision and Direction of Election in which it alleged that the Regional Director erred in excluding three admissions clerks, five switchboard operators, and a medical secretary, from the appropriate bargaining unit. This request for review was denied by the Board on March 27, 1968, on the ground that it raised no substantial issues except as to the unit placement of the three admission clerks, which the Board said could best be resolved through the customary challenge procedure. Pursuant to the Decision and Direction of Election, an election by secret ballot was conducted on April 2, 1968, under the supervision and direction of the Regional Director Immediately following the election the parties were served with copies of the tally of ballots which showed that of approximately 122 eligible voters, 114 cast ballots, of which 71 were for, and 38 were against the Union. There were 5 challenged ballots. On April 8, 1968, the Respondent filed timely objections to conduct affecting the results of the election alleging (1) that the Union had made wholesale proimses that the Union would obtain more money for the employees immediately if the employees would vote for the Union, (2) that the Union had established a picket line with ' Administrative or official notice is taken of the record in the representation proceeding , Case 5-RC-6293, as the term "record" is defined in Section 102.68 and 102 .69(f) of the Board's Rules (Rules and Regulations and Statements of Procedure, National Labor Relations Board , Series 8, as revised January 1, 1965). See LTV Electrosystenis, Inc., 166 NLRB No. 81 , enfd. 388 F 2d 683 (C.A 4, 1968), Golden Age Beverage Co, 167 NLRB No 24, Intertype Co v Penello, 269 F Supp 573 (D.C Va , 1967), Follett Corp, 164 NLRB 378, enfd 397 F.2d 91 (C.A. 7, 1968), Sec. 9(d) of the NLRA. 2 Since the certification of the Union, the international union has changed its name from Building Service Employees International Union, AFL-CIO, to Service Employees International Union, AFL-CIO. The local Union has apparently made similar changes in its designation, since the charge was filed by "Service Employees International Union, Local 536, AFL-CIO." In accordance with a request by the International Union to the Board, dated June 28, 1968 , requesting appropriate change in the Board's records , the name of the Union has been amended accordingly herein. 3 See fn. 1, supra 430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pickets carrying signs that the employer was unfair because he would not sign a consent election agreement, (3) that the Union had continued to pass out literature and attempted to sign up employees the day after the election, and (4) that the Union had distributed three kinds of leaflets during the campaign which were objectionable because two misrepre- sented the facts and the other confused the employees concern- ing the representation and checkoff authorization which they were requested to sign. On May 2, 1968, the Regional Director issued a Supplemen- tal Decision and Certification of Representative in which he stated that he had conducted an investigation of the challenges and objections, found that the objections raised no substantial or material issues with respect to the election, overruled the objections, and certified the Union as the representative of the employees of the appropriate unit As to the challenged ballots, the Regional Director stated that they were not sufficient in number to affect the results of the election Thereafter on May 27, 1968, Respondent filed a timely appeal with the Board from the Regional Director's Supplemental Decision and Certification of Representative overruling Re- spondent's objections to conduct allegedly affecting the results of the election No request for review was filed with respect to the Regional Director's ruling on the challenges On June 6, 1968, the Board issued an order denying the Respondent's request for review of the Regional Director's Supplemental Decision and Certification of Representative, on the ground that it raised no substantial issues warranting review. THE COMPLAINT CASE On June 20, 1968, the Union filed the unfair labor practice charge involved in the instant case, in which it alleged, interaha, that on or about June 19, 1968, the Respondent refused to bargain with the Union On June 27, 1968, the General Counsel, by the Regional Director of Region 5, issued a Complaint and Notice of Hearing alleging that the Respondent had committed unfair labor practices in violation of Section 8(a)(1) and (5) and Section 2(6) and (7) of the Act by refusing to bargain with the Union upon request. In due course the Respondent filed its answer to the complaint in which certain allegations of the complaint were admitted and others denied. In its answer the Respondent admits the following allega- tions of the complaint- (1) filing and service of the charge, (2) certain jurisdictional facts, (3) that the Union is a labor organization within the meaning of Section 2(5) of the Act, (4) that an election was held, (5) that the Union has re- quested the Respondent to bargain collectively, and (6) that the Respondent has refused and continues to refuse to bargain Respondent denies the allegations contained in the complaint to the effect that (1) the Respondent is engaged in commerce within the meaning of Section 2(6) of the Act, (2) the bargaining unit is appropriate, (3) the Union has been and is now the exclusive representative for purposes of collective bargaining of a majority of the employees in the unit, and (4) that by the refusal to bargain, in connection with the other allegations described, the Respondent did engage in, and is engaging in unfair labor practices affecting commerce within the meaning of the Act The Respondent affirmatively asserts in its Answer that the Union engaged in conduct violative of the Act and precluding a fair and impartial election, and, further, that the Board is without jurisdiction of the subject matter for the reason that the Board's jurisdictional standards for nursing homes are invalid and constitute an unconstitutional classification of nursing homes Under date of July 16, 1968, received July 17, counsel for the General Counsel filed a Motion for Summary Judgment in which he contends that the pleadings, considered together with the official Board record in the underlying representation proceeding, Case 5-RC-6293, raise no issues requiring a hearing, that Respondent's defense set forth in its answer raises no litigable questions of fact, and that, as a matter of law, Respondent has no valid defense to the complaint. On July 18, 1968, 1 issued an Order directing the parties to show cause as to whether or not General Counsel's Motion should be granted On July 29, 1968, counsel for the Respondent filed an Opposition to the Motion for Summary Judgment No other responses have been received. RULING ON MOTION FOR SUMMARY JUDGMENT In its Opposition to the Motion for Summary Judgment the Respondent urges that the General Counsel's motion should be denied for a number of reasons, which in summary are as follows (1) the unit is inappropriate and was improperly decided, (2) there are unresolved issues, (3) a full hearing and report by a trial examiner is required, (4) the jurisdictional standard adopted by the Board for nursing homes is arbitrary and invalid, and in any event the record on jurisdiction is inadequate, and (5) no proper investigation of the objections to the election was made Additionally, the Respondent demands production of the affidavits and statements taken by the field examiner in the investigation of the objections to the election. None of these propositions is found to be supported With respect to the unit issue the Respondent urges that the admissions clerks, telephone switchboard operators and the medical secretary were improperly excluded from the appro- priate unit. The Respondent further contends that no formal decision together with reasons or grounds or authorities for its ruling was ever issued by the Board in regard to the exclusion of the admissions clerks, telephone switchboard operators, and the medical secretary. In addition, the Respondent asserts that the unit issue was not finally resolved for the reason that though the Board directed that the unit placement of the admissions clerks be resolved through the challenge procedure, the Regional Director merely held that the challenged ballots were not sufficient in number to affect the results of the election. The questions raised by the Respondent relating to the appropriateness of the unit were either specifically adjudicated in the representation proceeding or opportunity was afforded for such adjudication. Those issues are therefore not litigable here. It is established Board policy, in the absence of newly discovered or previously unavailable evidence or special cir- cumstances, not to permit litigation before a trial examiner in an unfair labor practice case of issues which were or could have been litigated in a prior related representation proceeding 4 The record before me does not disclose the identity or 4 Howard Johnson Co, 164 NLRB 174, Metropolitan Life Insurance Co, 163 NLRB 579 See Pittsburgh Plate Glass Co v. N. L.R B., 313 U S 146, 162 ( 1941 ), Rules and Regulations of the Board , Sections 102.67(f) and 102.69(c) MAR SALLE CONVALESCENT HOME 431 classification of the challenged employees. However, if it be assumed that the admissions clerks were among them, the fact that their status has not been finally decided is not, in the presented circumstances, a basis for refusal to bargain as to the remainder of the appropriate unit in the absence of indication, of which there is none here, that bargaining cannot convenient- ly proceed in the interim. Houston Chronicle Publishing Company, 130 NLRB 1243, 1245-46. In any event, other considerations require rejection of the Respondent's contentions concerning unit placement of the admissions clerks. The first is that the Board refused to review the Regional Director's action in certifying the Union, and that action is binding on the trial examiner The second is that the Regional Director's action finding decision on the challenges unnecessary became final by reason of the Respondent's failure to except to or to request review of it. Section 102 67(f) of the Board Rules provides as follows: The parties may, at any time, waive their right to request review. Failure to request review shall preclude such parties from relitigating, in any related subsequent unfair labor practice proceeding, any issue which was, or could have been, raised in the representation proceeding. Denial of a request for review shall constitute an affirmance of the regional director's action which shall also preclude relitigat- ing any such issues in any related subsequent unfair labor practice proceeding. In its appeal from the Regional Director's Supplemental Decision and Certification of Representative the Respondent appealed only the Regional Director's action in overruling the Respondent's objections to the election based upon conduct by the Union. The Respondent thereby acquiesced to the Regional Director's decision on the challenges, at least for the purpose of this proceeding. The Respondent's contentions as to the unit determination are therefore not supported. With respect to the Respondent's assertion that no formal decision was issued by the Board, the Respondent cites Section 8(b) of the Administrative Procedure Act. (5 U.S.C. 557 (c)). However, no formal decision by the Board, in the Respon- dent's sense of the term, was required for two reasons- (1) section 8(b) of the Administrative Procedure Act is not applicable to cases involving the certification of employee representatives,' and (2) Section 3(b) of the National Labor Relations Act authorizes the Board to delegate to the Regional Director authority under Section 9 of the Act to decide questions of representation, the Board has delegated such authority in its rules (Subpart C, Section 102.60, et seq.), and the Regional Director has issued formal decisions. If formal decisions were required, these sufficed Concerning its contention that a hearing and report by a trial examiner are required, Respondent states that a hearing on objections is required by the Administrative Procedure Pct, and that the Morgan cases,6 require a full hearing and report by a trial examiner containing findings and conclusions and base; therefore. However, it is to be observed, first, that a hearing is not a matter of right in connection with the disposition of objections to an election, either under the Administrative Procedure Act or the Morgan cases, unless substantial and material issues are raised by the objections.7 The cases cited by the Respondent' do not negate this proposition; they merely hold that where there are substantial and material issues a hearing is required. In addition, neither in the Respondent's opposition to the Motion for Summary Judgment nor in its appeal from the Regional Director's Supplemental Decision and Certification of Representative is there a suggestion that the Respondent requested a hearing on its objections to the election. Concerning jurisdiction, the Respondent asserts that the Board's standards for nursing homes are arbitrary and invalid in that the dollar amounts of income required for the exertion of jurisdiction are too low when compared with those required for other enterprises. Additionally, the Respondent contends that where jurisdiction is questioned, evidence of other jurisdictional factors, such as direct and indirect inflow and outflow must be contained in the record, and there is none such here. Whether the Board has jurisdiction over the Respondent was necessarily decided in the representation proceeding 9 In addition, the record of the representation case does not disclose that the Respondent raised any such issue there. In the absence of a showing of cause, the Respondent is therefore precluded under Board rules 102.67(f) and 102.69(c), referred to supra, from raising the question here. Respondent cites no authority in support of its position that where jurisdiction is questioned the record must contain evidence of other jurisdic- tional factors, such as direct and indirect inflow and outflow. The contention is therefore rejected. With respect to the Respondent's assertion that there was not a full investigation of the objections to the election, I find that issue also waived by reason of the Respondent's failure to raise this matter in the representation proceeding. In addition, there is no indication as to what the Regional Director failed to do in this respect. In its Opposition to Motion for Summary Judgment, Respondent requests copies of the affidavits and statements taken by the field examiner in the ex parte investigation of the objections to the election under the provisions of the Public Information section of the Administrative Procedure Act. (5 U.S.C. 552, Public Law 89487(1966).) This request is denied. In the circumstances of this case such documents are consid- ered exempt from production by reason of section 3(b)(7) of the Public Information Act (5 U.S.C. 552(b)(7)) and not properly part of the record in the representation proceeding. See cases cited in footnote 2, supra. There being no unresolved issues requiring an evidential hearing the motion of the General Counsel for summary judgment is granted, and I hereby make the following further. 5 Sec. 5 of the Administrative Procedure Act (5 U.S.C. 554). 6 Morgan v United States, 304 U.S. 1, 58 S.Ct. 999, 82 L.Ed. 1129 (1938), Morgan v. United States, 298 U S 468, 56 S.Ct. 906, 80 L Ed. 1288 (1936). 7 O.K. Van & Storage Inc., 127 NLRB 1537, enfd 297 F.2d 74 (C.A. 5, 1961). See Air Control Window Products, Inc, 355 F 2d 245, 249 (C.A. 5, 1964) " If there is nothing to hear, then a hearing is a senseless and useless formality ." See also NL.R.B v. Bata Shoe Co., 377 F.2d 821 , 826 (C.A 4, 1967) ` ... there is no requirement, constitutional or otherwise , that there be a hearing in the absence of substantial and material issues crucial to determination of whether NLRB election results are to be accented for nurooses of certification." 8 N.L R B. v Lord Baltimore Press, 300 F.2d 671 (C.A.4., 1962), NL R B v Dallas City Packing Co., 230 F 2d 708 (C.A.5 , 1956), NL.R.B v. Poinsett Lumber Co, 221 F.2d 121 (C.A.9., 1955), NL.R B. v. West Texas Utility Co, 214 F 2d 732 (C.A.5., 1954); N.L.R.B. v Sidran Sportswear, 181 F.2d 671 (C.A.5., 1950) 9 See for example , the Regional Director's Decision and Direction of Election, fn . 2 thereof. 432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS AND CONCLUSIONS I THE BUSINESS OF THE RESPONDENT Mar Salle, Inc., d/b/a Mar Salle Convalescent Home, the Respondent, is, and has been at all times material herein, a corporation duly organized under and existing by virtue of the laws of Delaware. It maintains its principal office and place of business in the District of Columbia, where it is engaged in the operation of a nursing and convalescent home. Respondent, in the course and conduct of its business operations in the past year, a representative period, derived gross revenues valued at in excess of $100,000, and purchased goods and materials valued at in excess of $25,000 from suppliers located in the District of Columbia. Respondent is, and has been, at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) of the Act II. THE LABOR ORGANIZATION INVOLVED The Union is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The following employees of the Respondent constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act All hourly-paid employees, including licensed practical nurses, charge nurses, aids, orderlies, kitchen, housekeeping, and maintenance employees employed at the Employer's Washington, D C , nursing home, but excluding registered nurses, bookkeepers, dieticians, admissions clerks, switch- board operators, medical secretaries and supervisors as defined in the Act. On April 2, 1968, a majority of Respondent's employees in the said unit designated and selected the Union as their collective bargaining representative in a secret-ballot election conducted under the supervision of the Regional Director of Region 5 of the National Labor Relations Board. On May 2, 1968, the Regional Director certified the Union as the exclusive collective bargaining representative of the employees in the appropriate unit Respondent's request that the Board review the Regional Director's certification was denied on June 6, 1968. At all times since May 2, 1968, and continuously to the present, the Union has been the representative for the purpose of collective bargaining of the employees in the said unit, and by virtue of Section 9(a) of the Act has been, and is now, the exclusive representative of all the employees in said unit for the purpose of collective bargaining with respect to rates of pay, wages, hours of employment and other terms and conditions of employment. 10 The purpose of this provision is to ensure that the employees in the appropriate unit will be accorded the services of their selected bargaining agent for the period provided by law. See Mar-Jac Poultry Co., Inc., 136 NLRB 785, Commerce Co. d/b/a Lamar Hotel, 140 NLRB 226, 229, enfd. 328 F.2d 600 (C.A. 5), cert. denied 379 U.S. 817 (1964), Burnett Construction Co., 149 NLRB 1419, 1421, enfd. 350 F 2d 57 (C.A. 10, 1965). It is admitted and found that on or about May 10, 1968, the Union requested the Respondent to meet with it for the purpose of collective bargaining with respect to the employees in the appropriate unit, and that on or about June 13, 1968, Respondent refused and continues to refuse to do so By thus refusing to bargain collectively the Respondent has engaged in unfair labor practices in violation of Section 8(a)(5) of the Act and has interfered with, restrained and coerced its employees in violation of Section 8(a)(1) of the Act The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings and conclusions and the entire record in the case, I recommend that the Board issue the following ORDER A. For the purpose of determining the duration of the certification the initial year of certification shall be deemed to begin on the date the Respondent commences to bargain in good faith with the Union as the recognized exclusive bargaining representative in the appropriate unit i 0 B Mar Salle, Inc , d/b/a Mar Salle Convalescent Home, its officers, agents, successors, and assigns, shall: 1. Cease and desist from. (a) Refusing to bargain collectively with Service Employees International Union, Local 536, AFL-CIO, as the exclusive collective bargaining representative of the employees in the following appropriate bargaining unit* All hourly-paid employees, including licensed practical nurses, charge nurses, aids, orderlies, kitchen, housekeeping, and maintenance employees employed at the Employer's Washington, D.C., nursing home, but excluding registered nurses, bookkeepers, dieticians, admissions clerks, switch- board operators, medical secretaries and supervisors as defined in the Act. (b) Interfering with the efforts of said union to negotiate for or represent employees as such exclusive collective bargain- ing representative, or in any like or related manner interfering with employee efforts at self-organization 2. Take the following affirmative action which is necessary to effectuate the policies of the Act. (a) Upon request bargain collectively with Service Employ- ees International Union, Local 536, AFL-CIO, as the exclusive representative of the employees in the appropriate unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and embody in a signed agreement any understanding reached. (b) Post at its office and place of business in the District of Columbia copies of the notice attached hereto marked "Appendix."' i Copies of said notice, on forms to be furnished by the Regional Director for Region 5, shall, after being duly signed by an authorized representative of the Respondent, be posted by the Respondent immediately upon receipt thereof and be maintained by it for a period of 60 consecutive days 1 r In the event this recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "Recommended Order of a Trial Examiner" in the notice . In the further event that the Board 's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order." MAR SALLE CONVALESCENT HOME 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 the Regional Director for Region 5, in writing, within 20 days from receipt of this Recommended Order, what steps the Respondent has taken to comply herewith.' 2 12 In the event this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify the Regional Director for Region 5, in writing, within 10 days from receipt of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that* WE WILL NOT refuse to bargain collectively with Service Employees International Union, Local 536, AFL-CIO, as the exclusive collective bargaining representative of all our following employees- All hourly paid employees, including licensed practical nurses, charge nurses, aids, orderlies, kitchen, housekeep- ing, and maintenance employees, employed at our 433 Washington, D C , nursing home, but excluding regis- tered nurses, bookkeepers, dieticians, admissions clerks, switchboard operators, medical secretaries and super- visors as defined in the Act. WE WILL NOT interfere with the efforts of the Union to negotiate for or represent employees as exclusive collective bargaining representative, or in any like or related manner interfere with employee efforts at self-organization or bargaining WE WILL bargain collectively with the Union as ex- clusive collective bargaining representative of the employees in the appropriate unit and if an understanding is reached we will sign a contract with the Union MARSALLE,INC d/b/a MAR SALLE CONVALESCENT HOME (Employer) Dated . ................. By . ............. (Representative) (Title) 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 If employees have any question concerning this Notice or compliance with its provisions, they may communicate direct- ly with the Board's Regional Office, 1091 Fed. Bldg., Charles Center, Baltimore, Maryland 21201 (Tel. No. 301-962-2822)