Corydon Nursing Home

SOUTHERN HEALTH CORP Southern Health Corp. d/b/a Corydon Nursing Home and District Union Local 227, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO. Case 25-CA-5412 August 1, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY 151 Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respon- dent did not file a response to Notice To Show Cause. 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 Upon a charge filed on February 14, 1973, by Dis- trict Union Local 227, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, herein called the Union, and duly served on Southern Health Corp. d/b/a Corydon Nursing Home herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Acting Re- gional Director for Region 25, issued a complaint on March 16, 1973, against Respondent, alleging that Respondent had engaged in and was engaging in un- fair 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 com- plaint alleges in substance that on January 29, 1973, following a Board election in Case 25-RC-4968 the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate:' and that, commencing on or about January 29, 1973, and at all times thereaf- ter, 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 to do so. On March 28, 1973, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On April 4, 1973, counsel for the General Counsel filed directly with the Board a Motion to Strike Por- tions of Respondent's Answer and Motion for Sum- mary Judgment. Thereafter, on April 10, 1973, Respondent filed opposition thereto. Subsequently, on April 12, 1973, the Board issued an order transfer- ring the proceeding to the Board and a Notice To 'Official notice is taken of the record in the representation proceeding, Case 25-RC-4968, 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 Electrosystems, Inc, 166 NLRB 938, enfd 388 F 2d 683 (C A 4, 1968), Golden Age Beverage Co, 167 NLRB 151, enfd 415 F 2d 26 (C.A 5, 1969), 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 The record herein indicates that after the election conducted pursuant to a Stipulation for Certification Upon Consent Election in the underlying representa- tion case, the tally of ballots served on the parties indicated that a majority of the eligible voters had cast their ballots for the Union. Thereafter, the Respon- dent filed a series of three objections to the Union's conduct, the first of which related to certain alleged union misrepresentations concerning both the fines the Union could assess and the wages and other con- ditions of employment which the Union was able to obtain for its members from other local employers. The Respondent contended that the alleged misrepre- sentations had an impact sufficient to affect the re- sults of the election. Thereafter, the Regional Director conducted an investigation and issued his report in which he concluded that the alleged misrepresenta- tions did not constitute substantial departures from the truth and/or were insufficient in impact to war- rant setting aside the election and recommended that the three objections be overruled and the Union certi- fied. The Respondent then filed exceptions to the Re- gional Director's report in which it disputed the Regional Director's conclusions only with respect to Objection 1. In its Decision and Certification of Representative,' the Board, however, adopted the Regional Director's findings and recommendations because the excep- tions relating to the misrepresentation allegations of Objection 1 raised no material or substantial issues of fact or law warranting reversal of the Regional Direc- tor and because no exceptions were filed with respect to the Regional Director's recommendations to over- rule Objections 2 and 3. By its denials in its answer to the complaint, the Respondent contends that the above alleged misre- presentations vitiate both the Union's certification and majority status and thus appears to be reiterating issues previously raised and determined in the under- lying representation proceeding. Similarly, the Respondent's request for a hearing on the substantial- ity and materiality of the Union's alleged misrepre- 2 201 NLRB No 63 205 NLRB No. 13 152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sentations, made for the first time in its Opposition to the General Counsel's Motion for Summary Judg- ment, raises a previously determined representation case issue . By our determination that the Respondent's exceptions to the Regional Director recommending that Objection 1 be overruled raised no substantial and material issue of fact or law war- ranting reversal of the Regional Director, we neces- sarily decided that an evidentiary hearing is not required.' 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.4 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.' On the basis of the entire record, the Board makes the following: the State of Indiana. We find, on the basis of the foregoing, that Respon- dent 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. II THE LABOR ORGANIZATION INVOLVED District Union Local 227, Amalgamated Meat Cut- ters and Butcher Workmen of North America, 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 full-time and regular part-time employees of the Respondent at its Corydon, Indiana, nurs- ing home facility, but excluding all office clerical employees, all professional employees, all guards, and all supervisors as defined in the Act. 2. The certification FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT Southern Health Corp., d/b/a Corydon Nursing Home, which is, and has been at all times material herein, a corporation duly organizaed under, and ex- isting by virtue of, the laws of the State of Indiana, maintains a principal office and place of business at Corydon, Indiana, where it is, and has been at all times material herein, continuously engaged in the business of operating a proprietary nursing home and providing related services. During the past year, a representative period, Re- spondent, in the course and conduct of its business operations, received gross revenues in excess of $100,000 and purchased and received goods valued in excess of $5,000, which were transported to its facility in interstate commerce directly from States other than 3 See also Modine Manufacturing Company, 203 NLRB No 77 4 See Pittsburgh Plate Glass Co v NLRB , 313 U S 146, 162 (1941), Rules and Regulations of the Board, Secs 102 67(f) and 102 69(c) ' In view of our determination herein, we find it unnecessary to rule upon the General Counsel's Motion to Strike Portions of the Answer On May 19, 1972, a majority of the employees of Respondent in said unit, in a secret ballot election conducted under the supervision of the Regional Di- rector for Region 25, 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 January 29, 1973, and the Union con- tinues 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 January 29 and February 2, 1973, 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. Commencing on or about January 29, 1973, and con- tinuing 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. SOUTHERN HEALTH CORP. Accordingly, we find that the Respondent has, since January 29, 1973, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of the employees in the ap- propriate unit, and that, by such refusal, Respondent has engaged in and is engaging in unfair labor practic- es 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 com- merce 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 mean- ing 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 appro- priate unit will be accorded the services of their select- ed bargaining agent for the period provided by law, we shall construe the initial period of certification as beginning on the date Respondent commences to bar- gain in good faith with the Union as the recognized bargaining representative in the appropriate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785; Com- merce Company d/b/a Lamar Hotel, 140 NLRB 226, 229, enfd. 328 F.2d 600 (C.A. 5, 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Company, 149 NLRB 1419, 1421, 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. Southern Health Corp. d/b/a Corydon Nursing Home is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. District Union Local 227, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time employees of 153 the Respondent at its Corydon, Indiana, nursing home facility, but excluding all office clerical employ- ees, all professional employees, all guards, and all 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 January 29, 1973, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the afore- said appropriate unit for the purpose of collective- bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about January 29, 1973, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bar- gaining representative of all the employees of Respon- dent 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 Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the mean- ing 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 Rela- tions Board hereby orders that Respondent, Southern Health Corp. d/b/a Corydon Nursing Home, Cory- don, Indiana, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and condi- tions of employment with District Union Local 227, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, as the exclusive bar- gaining representative of its employees in the follow- ing appropriate unit: All full-time and regular part-time employees of the Respondent at its Corydon, Indiana, nurs- ing home facility, but excluding all office clerical employees, all professional employees, all guards, and all 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 154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 Corydon, Indiana, nursing home fa- cility copies of the attached notice marked "Appen- dix." 6 Copies of said notice, on forms provided by the Regional Director for Region 25, after being duly signed by Respondent's representative, shall be post- ed by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days there- after, 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. (c) Notify the Regional Director for Region 25, 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 " 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 con- cerning rates of pay, wages, hours , and other terms and conditions of employment with Dis- trict Union Local 227, Amalgamated Meat Cut- ters and Butcher Workmen of North America, AFL-CIO, as the exclusive representative of the employees in the bargaining unit described be- low. WE WILL NOT in any like or related manner in- terfer 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 understanding in a signed agreement. The bargaining unit is: All full-time and regular part-time employ- ees employed at our Corydon, Indiana, nurs- ing home facility, but excluding all office clerical employees, all professional employees, all guards, and all supervisors as defined in the Act. SOUTHERN HEALTH CORP D/B/A CORYDON NURSING HOME (Employer) 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, 614 ISTA Center, 150 West Market Street, Indianapolis, Indiana 46204, Telephone 317- 633-8921.