Methodist Home

THE METHODIST HOME The Methodist Home and Service Employees Interna- tional Union, Local 579, AFL-CIO, CLC. Case 11-CA-7134 January 27, 1978 DECISION AND ORDER BY MEMBERS JENKINS, MURPHY, AND TRUESDALE Upon a charge filed on August 2, 1977, by Service Employees International Union, Local 579, AFL- CIO, CLC, herein called the Union, and duly served on The Methodist Home, herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 11, issued a complaint on September 20, 1977, 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 June 9, 1977, following a Board election in Case I l-RC-4251 the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate; 1 and that, commenc- ing on or about July 15, 1977, and continuing to date, and more particularly on September 7, 1977, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining represen- tative, although the Union has requested and is requesting it to do so. On September 30, 1977, Respondent filed its answer to the complaint admit- ting in part, and denying in part, the allegations in the complaint. On October 17, 1977, counsel for the General Counsel filed directly with the Board a motion to strike portions of Respondent's answer to complaint and Motion for Summary Judgment. Subsequently, on October 21, 1977, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's motion to strike portions of Respondent's answer to complaint and Motion for Summary Judgment should not be granted. Respondent thereafter filed a response to Notice To Show Cause and notice to take I Official notice is taken of the record in the representation proceeding, Case II-RC-4251, as the term "record" is defined in Sees. 102.68 and 102.69(g) of the Board's Rules and Regulations, Series 8, as amended. See LTV Electrosystems. Inc.. 166 NLRB 938 (1967), enfd. 388 F.2d 683 (C.A. 4, 234 NLRB No. 84 deposition and request for consent of Board officials to testify, produce Board records, and answer inter- rogatories. 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. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment In its answer to the complaint and response to the Notice To Show Cause, Respondent admits that it has refused to bargain as alleged but attacks the Union's certification on the basis that (1) a unit including charge nurses is inappropriate, and (2) its objections in the underlying representation case were improperly overruled without a hearing. Counsel for General Counsel argues that there are no matters warranting a hearing because the issues concerning the Union's certification were litigated and deter- mined in the representation case. We agree with the General Counsel. A review of the record herein, including the record in Case 1l-RC-4251, indicates that on October 12, 1976, an Acting Regional Director approved a Stipulation for Certification Upon Consent Election in the unit found appropriate, which excluded charge nurses. On October 18, 1976, Respondent filed a motion for collateral investigation into the showing of interest alleging that charge nurses had actively supported the Union's organizing effort. The Region conducted the investigation and, by letter dated November 1, 1976, informed Respondent that the investigation revealed the Union's showing of inter- est had not been tainted by supervisory participation and the petition would continue to be processed. On November 1, 1976, Respondent moved for reconsid- eration of that decision. The following day, the Regional Director issued an order withdrawing approval of Stipulation for Certification Upon Con- sent Election and canceling election and notice of hearing, in which, inter alia, he denied Respondent's motion for reconsideration. A hearing was conducted on the petition on November 9, 1976. On December 23, 1976, the Regional Director issued a Decision and Direction of Election in the unit found appropriate which includ- ed, inter alia, charge nurses. Respondent filed a timely request for review of the Regional Director's Decision and Direction of Election, asserting, inter alia, that the decision with respect to the supervisory 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26 (C.A. 5, 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va., 1967): Follerr Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA, as amended. 535 DECISIONS OF NATIONAL LABOR RELATIONS BOARD status of the charge nurses warranted review and further that the Region's handling of the case had been improper since the Regional Director refused to set forth the reasons which formed the bases for his conclusions regarding the supervisory status of charge nurses. On January 19, 1977, the Board, by telegraphic order (Member Murphy dissenting), granted the request for review with regard to the supervisory status of the charge nurses but denying the request in all other respects. On April 1, 1977, the Board (Member Walther dissenting) by telegraphic order affirmed the Regional Director's Decision and Direction of Election. The election was conducted on April 28, 1977.2 Thereafter, Respondent filed timely objections to the election alleging that (1) an active union supporter threatened an employee, who was against the union, with a knife approximately 2 hours prior to the election; (2) the Union distributed a misleading handbill; (3) the Union campaigned near the outside entrance to the voting area during the voting period; (4) the Union coerced and harassed employees; and (5) a union supporter ridiculed and intimidated one of Respondent's supervisor. On June 9, 1977, after investigation of Respondent's objec- tions, the Regional Director issued a Supplemental Decision and Certification of Representative sustain- ing the challenges to three ballots, finding it unneces- sary to pass on one challenge, and overruling the objections and certifying the Union. Respondent filed a timely request for review of the Regional Director's Supplemental Decision and Certification of Representative, contending, inter alia, that the Regional Director had improperly overruled the objections without a hearing and had improperly withdrawn his approval of the Stipulation for Certifi- cation Upon Consent Election upon learning of a charge nurse involvement in the Petitioner's cam- paign. The Board (with Member Murphy dissenting as to Objection I) by telegraphic order dated July 1, 1977, denied the request as it raised no substantial issue warranting review. By that denial, the Board necessarily found that Respondent had not raised issues warranting a hearing.3 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 2 The complaint erroneously alleges that the election occurred June 9, 1977. The tally was 77 for, and 74 against, the Union, with 4 challenged ballots. 3 Williams Energy Company, 218 NLRB 1080, 1081 (1975). 4 See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c). s We hereby deny General Counsel's motion to strike portions of Respondent's answer to complaint as lacking in merit. With respect to Respondent's request for consent of Board officials to to relitigate issues which were or could have been litigated in a prior representation proceeding. 4 All issues raised by Respondent in this proceeding were or could have been litigated in the prior representation proceeding, and 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 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. 5 On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent is a private nonprofit resident health care facility located in Orangeburg, South Carolina. During the preceding 12 months, Respondent had gross revenues in excess of $500,000 and received goods valued in excess of $50,000 from outside the State of South Carolina. 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 Employees International Union, Local 579, AFL-CIO, CLC, 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 Respondent constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: testify, produce Board records and answer interrogatories, we note that, it relates to Regional Office files and personnel and their actions. Under Sec. 102.118(aXI) of the Board's Rules and Regulations, Series 8, as amended, this request should ha,,e been addressed to the General Counsel since the requested documents and involved agency employees are under his control. We have been administratively advised that the General Counsel received the request and has denied it. Accordingly, we find that the request is not properly before us and is denied on that basis. 536 THE METHODIST HOME All licensed practical nurses, charge nurses, nurses aides, orderlies, hostesses, activities aide, housekeeping, dietary, laundry, and maintenance employees at the Employer's Orangeburg, South Carolina, facility; but excluding all office clerical employees, guards and supervisors as defined in the Act. 2. The certification On April 28, 1977, 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 I 11, designated the Union as their representative for the purpose of collective bargain- ing with Respondent. The Union was certified as the collective-bargaining representative of the employees in said unit on June 9, 1977, and the Union continues to be such exclusive representative within the mean- ing of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about July 5, 1977, and continuing to date, and more particularly on August 25, 1977, the Union has requested Respondent to bargain collectively with it as the exclusive collective- bargaining representative of all the employees in the above-described unit. Commencing on or about July 15, 1977, and continuing to date, and more particu- larly on September 7, 1977, 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 Respondent has, since July 15, 1977, 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 opera- tions described in section I, above, have a close, intimate, and substantial relationship to trade, traff- ic, 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 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 com- mences to bargain in good faith with the Union as the recognized bargaining representative in the ap- propriate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785 (1962); Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (C.A. 5, 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (C.A. 10, 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. The Methodist Home is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Service Employees International Union, Local 579, AFL-CIO, CLC, is a labor organization within the meaning of Section 2(5) of the Act. 3. All licensed practical nurses, charge nurses, nurses aides, orderlies, hostesses, activities aide, housekeeping, dietary, laundry and maintenance employees at the Employer's Orangeburg, South Carolina, facility; but excluding 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 June 9, 1977, 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 July 15, 1977, and continuing to date, and more particularly on Septem- ber 7, 1977, 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. 537 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 the Respondent, The Methodist Home, Orangeburg, South Carolina, 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 Employees International Union, Local 579, AFL-CIO, CLC, as the exclusive bargaining representative of its employ- ees in the following appropriate unit: All licensed practical nurses, charge nurses, nurses aides, orderlies, hostesses, activities aide, housekeeping, dietary, laundry and maintenance employees at the Employer's Orangeburg, South Carolina, facility; but excluding all office clerical 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 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 Orangeburg, South Carolina, facility copies of the attached notice marked "Appendix." 6 Copies of said notice, on forms provided by the Regional Director for Region II11, 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 11, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. MEMBER MURPHY, dissenting: In the underlying representation case, I would have granted Respondent's request for review of Regional Director's Supplemental Decision and Certification of Representative with respect to Respondent's Ob- jection 1. Therefore, contrary to my colleagues, I would deny the General Counsel's Motion for Summary Judgment. 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." 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 Employees International Union, Local 579, AFL- CIO, CLC, 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 licensed practical nurses, charge nurses, nurses aides, orderlies, hostesses, activities aides, housekeeping, dietary, laundry, and maintenance employees at the Employer's Orangeburg, South Carolina, facility; but excluding all office clerical employees, guards and supervisors as defined in the Act. THE METHODIST HOME 538