Golden Hours Convalescent Hospitals

GOLDEN HOURS CONVALESCENT HOSPITALS 279 Herb A. Cook and Joan D. Cook d/b/a Golden Hours Convalescent Hospitals and Service and Hospital Employees Union, Local 399, Service Employees International Union, SEIU, AFL-CIO. Case 31-CA-3039 November 14, 1972 DECISION AND ORDER By MEMBERS FANNING, JENKINS, AND KENNEDY Upon a charge filed on April 14, 1972, by Service and Hospital Employees Union, Local 399, Service Employees International Union, SEIU, AFL-CIO, herein called the Union, and duly served on Herb A. Cook and Joan D. Cook d/b/a Golden Hours Convalescent Hospitals, herein called the Respon- dent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 31, issued a complaint on May 17, 1972, 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 an Administrative Law Judge' were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that on March 14, 1972, following a Board election in Case 31-RC-746 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 March 17, 1972, and at all times thereafter, Respondent has refused, and con- tinues 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 May 24, 1972, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On July 6, 1972, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on July 20, 1972, 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 r The title of 'Trial Examiner" was changed to "Administrative Law Judge" effective August 19, 1972 a Official notice is taken of the record in the representation proceeding, Case 31-RC-746, 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 be granted. Respondent thereafter filed a response to 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 authority in this proceeding to a three-member panel. Ruling on the Motion for Summary Judgment In its answer to the complaint, in its response to the Motion for Summary Judgment and in numerous letters to the Regional Office and the Associate Executive Secretary of the Board, Respondent takes the position that it is not required to bargain with the Union because the election which resulted in the Union's certification was invalid. We do not agree. The record in Case 31-RC-746 indicates that an election was conducted on April 17, 1968, pursuant to a Stipulation for Certification Upon Consent Election. Challenges were determinative of that election and both parties filed objections to conduct affecting the results of the election. After the Regional Director's report and a hearing on the challenged ballots and objections, that election was set aside by the Board and a second election was directed.3 The second election was conducted on October 21, 1971. The tally of ballots showed that of approxi- mately 100 eligible voters, 65 cast ballots, of which 64 were for, and none against, the Union and one ballot was void. Thereafter, Respondent filed objections to conduct affecting the results of the election. Despite two requests from the Regional Director for evidence to support its objections, Respondent failed to submit any evidence. Notwithstanding Respondent's failure to cooperate, the Regional Director investi- gated the objections and issued a detail Report on Objections to Second Election, in which he consid- ered each of Respondent's 35 objections and recom- mended that the objections be overruled in their entirety and the Union certified. Respondent, thereafter, filed timely exceptions to the Report on Objections to Second Election. The Board, on March 14, 1972, issued a Decision and Certification of Representative in which it adopted the Regional Director's findings and recommenda- tions and certified the Union as the collective- bargaining representative of Respondent's employees in the unit stipulated and found to be appropriate. 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. 3 182 NLRB 796. 200 NLRB No. 3 280 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD It is well settled that in the absence of newly discovered or previously unavailable evidence or special circumstances 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.4 All 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 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.5 We shall, accordingly, grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: III. UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of the Respondent constitute a unit appropriate for collective-bargain- ing purposes within the meaning of Section 9(b) of the Act: All employees of the Respondent including dietary employees, maids, janitors, storekeepers, maintenance employees, grounds keepers, order- lies, nurses' aides, licensed vocational nurses, and laboratory helpers employed by Respondent at 22617 South Vermont, Torrance, California; excluding all professional employees, including physicians and registered nurses and all office clerical employees, guards, and supervisors as defined in the Act. 2. The certification FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent is a partnership which operates four convalescent hospitals at three locations in Califor- nia; two in Long Beach, one in Riverside, and one in Torrance, California. Respondent's annual gross revenues exceed $100,000. During the past year, Respondent purchased goods valued in excess of $2,000 from firms located in the State of California which obtained said goods directly from points located outside the State of California. During the same period, Respondent purchased goods and services valued in excess of $3,000 directly from points outside the State of California. 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, SEIU, AFL-CIO, is a labor organization within the mean- ing of Section 2(5) of the Act. 4 See Pittsburgh Plate G l a s s Co v. NLRB, 313 U S 146,162 (1941), Rules and Regulations of the Board, Secs 102 67(f) and 102.69(c) 5 We find no ment in Respondent's contention that the service of 'process herein was defective since Respondent does not contend there was lack of service but merely contests the location of service. As to Respondent's request for representation by counsel from the Regional On October 21, 1971, a majority of the employees of Respondent in said unit, in a secret ballot election conducted under the supervision of the Regional Director for Region 31 designated the Union as their representative for the purpose of collective bargain- ing with the Respondent. The Union was certified as the collective-bargaining representative of the em- ployees in said unit on March 14, 1972, and the Union continues to be 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 March 16, 1972, and at all times thereafter, the Union has requested the Respondent to bargain collectively with it as the exclusive collective-bargaining representative of all the employees in the above-described unit. Com- mencing on or about March 17, 1972, 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 representa- tive for collective bargaining of all employees in said unit. Accordingly, we find that the Respondent has, since March 17, 1972, 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, Respon- Office, there is no authority to provide counsel for litigants before the Board With respect to the Respondent's commerce data and its status as an employer engaged in commerce and in a business affecting commerce, those questions were determined in the representation case where the Respondent executed a Stipulation for Certification Upon Consent Election which established its data and involvement in commerce GOLDEN HOURS CONVALESCENT HOSPITALS 281 dent 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 opera- tions 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 com- merce. 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 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 certifica- tion as beginning on the date Respondent commenc- es to bargain in good faith with the Union as the recognized bargaining representative in the appropri- ate 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: CONCLUSIONS OF LAW 1. Herb A. Cook and Joan D. Cook d/b/a Golden Hours Convalescent Hospitals is an employ- er 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, SEIU, AFL-CIO, is a labor organization within the mean- ing of Section 2(5) of the Act. 3. All employees of the Respondent including dietary employees, maids, janitors, storekeepers, maintenance employees, grounds keepers, orderlies, nurses' aides, licensed vocational nurses, and labora- tory helpers employed by Respondent at 22617 South Vermont, Torrance, California; excluding all profes- sional employees, including physicians and registered nurses and all office clerical employees, guards, 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 March 14, 1972, 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 March 17, 1972, 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, Respon- dent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employ- ees in the exercise of the rights guaranteed to them in 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, Herb A. Cook and Joan D. Cook d/b/a Golden Hours Convalescent Hospitals, its 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, SEIU, AFL-CIO, as the exclu- sive bargaining representative of its employees in the following appropriate unit: All employees of the Respondent including dietary employees, maids, janitors, storekeepers, maintenance employees, grounds keepers, order- lies, nurses' aides, licensed vocational nurses, and laboratory helpers employed by Respondent at 22617 South Vermont, Torrance, California; excluding all professional employees, including physicians and registered nurses and all office clerical employees, guards, and supervisors as defined in the Act. 282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (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 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 under- standing is reached, embody such understanding in a signed agreement. (b) Post at its facility at Torrance, California, copies of the attached notice marked "Appendix." 6 Copies of said notice, on forms provided by the Regional Director for Region 31 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 Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 31 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 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 representa- tive 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 understanding in a signed agree- ment. The bargaining unit is: All employees of the Respondent including dietary employees, maids, janitors, store- keepers, maintenance employees, grounds keepers, orderlies, nurses' aides, licensed vocational nurses, and laboratory helpers employed by Respondent at 22617 South Vermont, Torrance, California; excluding all professional employees, including physicians and registered nurses and all office clerical employees, guards, and supervisors as de- fined in the Act. HERB A. COOK AND JEAN D. COOK D/B/A GOLDEN HOURS CONVALESCENT HOSPITALS (Employer) 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, Service Employees International Union, SEIU, 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 compli- ance with its provisions may be directed to the Board's Office, Federal Building, Room 12100, 11000 Wilshire Boulevard, Los Angeles, California 90024, Telephone 213-824-7351.