Hospice of Alverne

HOSPICE OF ALVERNE 313 Hospice of Alverne and St. Louis Joint Executive Board of the Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO. Case 14-CA-6349 February 3, 1972 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY Upon a charge filed on July 15, 1971, and an amended charge filed on August 11, 1971, by St. Louis Joint Executive Board of the Hotel and Restaurant Employees International Union, AFL-CIO, herein called the Union, and duly served on Hospice of Al- verne, herein called the Respondent, the Acting Gen- eral Counsel of the National Labor Relations Board, by the Regional Director for Region 14, issued a com- plaint on August 20, 1971, against Respondent, alleg- ing 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 com- plaint alleges in substance that on September 18, 1970, following a Board election in Case 14-RC-6514 the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate described essentially as all employees engaged in food handling or food prepara- tion;' and that commencing on or about December 10, 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 representative although the Union has requested and is requesting it do do so. The complaint further alleges that on or about August 1, 1971, Respondent subcon- tracted management of its food service operation to Food Management Systems, Inc. (herein Food Man- agement) without notice to or bargaining with the Un- ion, and that on and at all times since that date, Re- spondent has failed and refused and continues to fail and refuse to bargain with the Union concerning the subcontracting to Food Management. On September 20, 1971, Respondent filed its answer to the complaint Official notice is taken of the record in the representation proceeding, Case 14-RC-6514, as the term "record" is defined in Secs 102 68 and 102.69(t) of the Board's Rules and Regulations, Series 8, as amended See LTV Electrosystems, Inc., 166 NLRB 938, enfd 388 F 2d 683 (C A 4, 1968), Golden Age Beverage Co, 167 NLRB 151, 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 admitting in part, and denying in part, the allegations in the complaint. On October 15, 1971, counsel for the General Coun- sel filed directly with the Board a Motion for Judgment on the Pleadings and a brief in support of the motion. Subsequently , on October 27, 1971 , the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the General Counsel's Mo- tion for Judgment on the Pleadings should not be granted. Respondent thereafter filed a response to No- tice To Show Cause, styled as a reply to the brief sub- mitted by the General Counsel. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended , the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three -member panel. Upon the entire record in this proceeding , the Board makes the following: RULING ON THE MOTION FOR SUMMARY JUDGMENT' In its answer, Respondent denies that it is an em- ployer engaged in commerce within the meaning of the Act. The record of the representation proceeding, Case 14-RC-6514, shows that in its objections to the elec- tion held on August 19, 1970, pursuant to an agreement for consent election, in which the Union received a majority of the votes cast, Respondent contended that the Board did not have jurisdiction over its operation of a not for profit, religiously oriented residence for elderly people, and that it had entered into the consent agreement because of a mistake of law or fact as to jurisdiction. In his decision, the Regional Director overruled the objection, finding that Respondent was an employer engaged in commerce within the meaning of the Act whose operations satisfied the jurisdictional standard of Drexel Home, Inc., 182 NLRB 1045, and that Respondent had the opportunity to litigate the jurisdictional issue before entering into the consent agreement. Respondent filed a request for review rais- ing these issues before the Board. Although the consent agreement provided that decisions of the Regional Di- rector would be final and binding, the Board treated the request as one for special permission to appeal from the Regional Director's decision and granted permission. On November 10, 1970, the Board denied the appeal finding that the Regional Director's action had not been arbitrary or capricious, that the Respondent had consented to the election procedure, that the election had been held, and that the jurisdictional standards were merely discretionary and, in any event, the Board had legal jurisdiction. Thus, the question of Respond- ent's status as an employer and the Board's jurisdiction ' We treat the General Counsel's motion as one for Summary Judgment 195 NLRB No. 60 314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD over Respondent's operations was fully litigated in the representation proceeding. Respondent also asserts that it is without knowledge of, and thus it denies, the Union's status as a labor organization, the scope and composition of the bargain- ing unit, and the Union's status as the exclusive bar- gaining representative for the unit employees. These issues, too, were or could have been raised in the course of the representation proceeding. It is well settled that in the absence of newly discov- ered or previously unavailable evidence or special cir- cumstances a respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to relitigate issues which were or could have been litigated in a prior representation proceeding.' All of the above issues raised by the Respondent in this proceeding were or could have been litigated in the prior representation proceeding, and the Respondent does not offer to adduce at a hearing any newly discov- ered 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 re- specting that proceeding which is properly litigable in this unfair labor practice proceeding. In its answer and also in its response to the Notice To Show Cause, Respondent admitted that it had sub- contracted management of its food service operation to Food Management without prior notice to, or bargain- ing with, the Union, but it asserts that this was for economic reasons, and that at most there may be only a technical violation of the Act. The law is well settled that when an employer unilaterally subcontracts unit work as was done here-even for wholly economic reasons-he breaches his duty to bargain about the decision to subcontract and the consequent effect of that decision on the unit employees.' Respondent's as- sertions here thus cannot serve as a defense to the allegations in the complaint. While in its answer to the complaint, Respondent admits the refusals to bargain, in its response to the Notice To Show Cause Respond- ent attempts to controvert this admission by asserting that its counsel had met and "spoken at length over the telephone with Union representatives," and further that its counsel had met with Union and Food Manage- ment representatives to help negotiate a contract be- tween these two parties. Clearly, assisting the Union and Food Management to negotiate a contract is not a defense to its own refusal to bargain with the Union. Nor do the broad assertions of meeting and conversa- ' S e e Pittsburgh P l a t e G l a s s C o . v N . L . R B, 313 U S 146, 162 (1941), Rules and Regulations of the Board , Secs 102 67(1) and 102 69(c). 4 Shurtenda Steaks, Inc., 161 NLRB 970-971, enfd NL.R.B v Shur- tenda Steaks, Inc, 379 F 2d 939 (C A 10), Shell Oil Co, 149 NLRB 305, 307, citing Fibreboard Paper Products Corp. v NL.R B., 379 U S 203. tions by its counsel with the Union serve as a defense in light of the admissions contained in the answer to the complaint. Accordingly, we shall grant the Motion for Sum- mary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent is a nonprofit corporation, organ- ized under the laws of the State of Missouri, which operates a residence for elderly people located at 1014 Locust Street, St. Louis, Missouri. During 1969, a rep- resentative period, the Respondent received gross reve- nues in excess of $440,000 in the course and conduct of its operation, and purchased food and supplies valued in excess of $40,000, of which a significant por- tion originated outside the State of Missouri. We find, on the basis of the foregoing, that Respond- ent 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 effectu- ate the policies of the Act to assert jurisdiction herein. IT. THE LABOR ORGANIZATION INVOLVED St. Louis Joint Executive Board of the Hotel and Restaurant Employees and Bartenders International Union, 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 1. The unit The following employees of the Respondent consti- tute a unit appropriate for collective-bargaining pur- poses within the meaning of Section 9(b) of the Act: All employees engaged in food handling or food preparation at 1014 Locust Street in the city of St. Louis, Missouri, excluding office clerical em- ployees, professional employees, guards and supervisors as defined in the Act. 2. The certification On August 19, 1970, a majority of the employees of Respondent in said unit, in a secret ballot election con- ducted under the supervision of the Regional Director for Region 14, designated the Union as their represent- ative 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 September 18, 1970, and the Union continues to be HOSPICE OF ALVERNE 315 such exclusive representative within the meaning of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about January 20, 1971,5 the Union has requested the Respondent to bargain collec- tively with it as the exclusive collective-bargaining rep- resentative of all the employees in the above-described unit. Commencing on or about January 20, 1971, and continuing at all times thereafter to date, the Respond- ent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive representa- tive for collective bargaining of all employees in said unit. Since on or about August 1, 1971, and continuing at all times thereafter to date, Respondent has failed and refused, and continues to fail and refuse, to bargain with the Union concerning the subcontracting of the management of its food service operation to Food Man- agement. Accordingly, we find that the Respondent has, since January 20, 1971, 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, and by unilaterally subcon- tracting management of its food service operation on August 1, 1971, 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 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 commerce and the free flow of commerce. V. THE REMEDY became the employer of the unit employees, these em- ployees suffered no loss of jobs or pay but continued to perform the same work as before. In our view, the change in the employing entity itself is a significant change that could have a substantial impact on the entire employment relationship, as well as the terms and conditions of employment. Where, as here, an em- ployer has denied recognition of its employees' prop- erly certified bargaining representative for a substantial period of time and, further, unilaterally subcontracts unit work which has the effect of delivering its em- ployees into the employment of another, a remedial order is necessary. We shall therefore direct that Re- spondent cease and desist from the unlawful conduct found, and that upon request it bargain collectively with the Union as the exclusive representative of all employees in the appropriate unit. In his brief in support of his motion, the General Counsel asserts that he is not seeking a remedy which would require Respondent to resume active manage- ment of the food service operation or return the em- ployees to its payroll. For this reason, with respect to the subcontracting option we shall only direct that Re- spondent bargain in good faith concerning the effects upon the employees of Respondent's subcontracting action. We shall further order that if an understanding is reached, Respondent shall embody such understand- ing in a signed agreement. In order to insure that the employees in the appropri- ate 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 begin- ning on the date 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; 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: As indicated above, in its response to the Notice To Show Cause Respondent contends that there may be only a technical violation of the Act, and it asserts that a remedial order is not warranted. We do not agree. The Respondent argues that as the net effect of its subcontracting action was that Food Management ' The complaint alleges, and Respondent 's answer admits , that the initial request and refusal to bargain, which continues to date, began on December 10, 1970, a date that does not come within the 6-month Section 10(b) period following the filing of the charge on July 15, 1971 However , since both the original charge and the amended charge allege the refusal to bargain as of January 20, 1971, which is within the statutory period, we have found the refusal to bargain from that date. CONCLUSIONS OF LAW 1. Hospice of Alverne is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. St. Louis Joint Executive Board of the Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All employees engaged in food handling or food preparation at 1014 Locust Street in the city of St. Louis, Missouri, excluding office clerical employees, professional employees, guards and supervisors as 316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 September 18, 1970, the above-named labor organization has been and now is the certified and ex- clusive representative of all employees in the aforesaid appropriate unit for the purpose of collective bargain- ing within the meaning of Section 9(a) of the Act. 5. By refusing on or about January 20, 1971, and again on August 1, 1971, and at all times thereafter, to bargain collectively with the above-named labor organ- ization 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 in- terfering 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 engag- ing 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 meaning of Section 2(6) and (7) of the Act. spect to rates of pay, wages, hours, and other terms and conditions of employment, and as to the effects on unit employees of subcontracting the management of its food service operation and, if an understanding is reached, embody such understanding in a signed agree- ment. (b) Post at its facility, 1014 Locust Street, St. Louis, Missouri, copies of the attached notice marked "Ap- pendix.", Copies of said notice, on forms provided by the Regional Director for Region 14, 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 no- tices 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. (c) Notify the Regional Director for Region 14, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 6 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." ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Hospice of Al- verne, 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 and concerning the effects of subcon- tracting the management of its food service operation on the unit employees with St. Louis Joint Executive Board of the Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, as the ex- clusive bargaining representative of its employees in the following appropriate unit: All employees engaged in food handling or food preparation at 1014 Locust Street in the city of St. Louis, Missouri, excluding office clerical em- ployees, professional employees, guards, and supervisors as defined 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 la- bor organization as the exclusive representative of all employees in the aforesaid appropriate unit with re- 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 or concern- ing the effects of subcontracting of the manage- ment of our food service operation on unit em- ployees with St. Louis Joint Executive Board of the Hotel and Restaurant Employees and Bar- tenders International Union, AFL-CIO, as the ex- clusive representative of the employees in the bar- gaining 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 Sec- tion 7 of the Act. WE WILL, upon request, bargain with the above-named Union, as the exclusive representa- tive of all employees in the bargaining unit de- scribed below, with respect to rates of pay, wages, hours, and other terms and conditions of employ- ment, and as to the effects on unit employees of the subcontracting of the management of our food service operation, and, if an understanding is HOSPICE OF ALVERNE 317 reached, embody such understanding in a signed agreement . The bargaining unit is: All employees engaged in food handling or food preparation at 1014 Locust Street in the city of St. Louis, Missouri, excluding office clerical employees, professional employees, guards, and supervisors as defined in the Act. HOSPICE OF ALVERNE (Employer) 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, 210 North 12th Boulevard, Room 448, St. Louis, Missouri 63101, Telephone 314-622-4142. Dated By (Representative) (Title)