Highland Terrace Convalescent Center

HIGHLAND TERRACE CONVALESCENT CENTER Highland Terrace Convalescent Center, A Wholly Owned Subsidiary of Centennial Villas, Inc. and Service Employees International Union, Local No. 92, AFL-CIO. Case 36-CA-3063 October 20, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY Upon a charge filed on February 17, 1977, by Service Employees International Union, Local No. 92, AFL-CIO, herein called the Union, and duly served on Highland Terrace Convalescent Center, A Wholly Owned Subidiary of Centennial Villas, Inc., herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 19, issued a complaint on April 1, 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 November 23, 1976, following a Board election in Case 36-RC- 3754, 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 February 1, 1977, and at all times thereafter, and particularly on March 7, 1977, 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 April 4, 1977, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On April 25, 1977, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. On May 9, 1977, Respondent filed an amended answer, with affirmative defenses, continuing to admit in part and deny in part the allegations of the complaint. Subsequently, on May 25, 1977, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the 'Official notice is taken of the record in the representation proceeding. Case 36-RC-3754, as the term "record" is defined in Secs. 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, 233 NLRB No. 20 General Counsel's Motion for Summary Judgment should not be granted. Respondent thereafter filed a brief in opposition to the General Counsel's Motion for Summary Judgment. 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 its opposition to General Counsel's Motion for Summary Judgment Respondent admits the refusal to bargain but contends that the certification of the Union in the underlying representation case is invalid since the Regional Director erroneously included certain supervisors, namely, charge nurses, in the unit. Furthermore, although Respondent concedes that its representative signed a waiver of the right to request review of the Regional Director's determination in Case 36-RC-37554, it contends the waiver was invalid since the form has never been filled out and the representative, a nonlawyer, did not understand the waiver due to the Hearing Officer's failure to adequately inform him of its ramifications. Respon- dent also contends that a new hearing is required to demonstrate the prejudice Respondent suffered as a result of the Regional Director's failure to serve a copy of his Decision and Direction of Election on Respondent's attorney prior to the election. Finally, Respondent contends that, even in the event the Board agrees with the original Decision, there has been a change since the issuance of that Decision in the supervisory authority of charge nurses requiring that the Board grant a new hearing on the matter. Based on this change in circumstances, Respondent filed on June 10, 1977, a petition for clarification of certification asking the Board to clarify the present status of the charge nurses in the unit. Respondent maintains that this UC petition should be consolidat- ed with the present refusal-to-bargain matter. Our review of the record herein, including the record in Case 36-RC-3754, reveals that, at the conclusion of the hearing the parties signed a waiver of their right to present review of the Regional Director's decision. Thereafter, the Regional Direc- tor issued a Decision and Direction of Election in which, inter alia, he found charge nurses, which Respondent contended were supervisors, to be employees included in the unit and directed that an 1968): Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26 (C.A. 5, 1%9); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va., 1967); Follet Corp.. 164 NLRB 378 (1967), enfd. 397 F.2d (CA. 7, 1%968); Sec. 9(d) of the NLRA, as amended. 87 DECISIONS OF NATIONAL LABOR RELATIONS BOARD election be conducted. An election was held on November 15, 1976, which resulted in an 8-to-0 vote in favor of the Union with no challenged ballots. No objections to the election were filed and, on November 23, 1976, the Union was certified as the exclusive representative of the employees. On December 6, 1976, Respondent requested the Regional Director to rescind the Certification of Representative and to reconsider the Decision and Direction of Election for the following reasons: (1) the unit description in the Certification of Represen- tative is ambiguous in that it excludes supervisors but includes charge nurses who are supervisors; (2) Respondent was denied the opportunity to request reconsideration of the Regional Director's decision within the prescribed time due to the Regional Director's failure to serve a copy of his decision on Respondent's attorney and, therefore, Respondent was denied an opportunity to seek reconsideration; (3) the Regional Director did not fully consider Respondent's October 26, 1976, brief before issuance of his October 29, 1976, decision; (4) although the Regional Director refers to a brief filed by Petitioner no such brief was served on Respondent; and (5) the Hearing Officer failed to adequately explain to Respondent's representative the ramifications of its waiver of the right of appeal. The Regional Director denied the request by letter dated December 17, 1976.2 By letter dated March 17, 1977, Respondent requested review of the matter. The Board, by order of March 30, 1977, denied the Respondent's request for review on the ground that the Employer waived the right to file a request for review with the Board and did not seek to withdraw its waiver prior to the Regional Director's decision. 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. 3 With the exception of Respondent's contention that we should consolidate this proceeding with the proceeding involving its UC petition, 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 2 Specifically, the Regional Director stated, inter alia, that he gave further consideration to his oriinal decision and he adhered to it. He declared that Respondent's October 26, 1976, brief was fully considered. He also enclosed a copy of Petitioner's brief, noting that there is no provision for reply briefs. Lastly, he cited in detail the portions of the transcript indicating Respondent's representative had been given a full explanation of the effect of the waiver he signed. 3 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). that any special circumstances exist herein which would require the Board to reexamine the decision made in the representation proceeding. As to Respondent's contention with respect to the UC petition, the complaint alleges that Respondent violated Section 8(a)(5) by refusing to bargain as of February 1, 1977. The unit clarification petition is based on an alleged change in the duties of charge nurses since the date of the certification and apparently, at least partially, since the date of the alleged refusal to bargain. By this tactic it appears that Respondent is seeking to relitigate the same issues which we litigated in the earlier proceeding. In effect Respondent is arguing that it has made such drastic changes in the duties of unit employees since the certification that it has eliminated the unit, all without bargaining. This assertion, if true, would simply constitute additional evidence of Respon- dent's refusal to bargain with the Union since it would be making unilateral changes without bargain- ing.4 We therefore find that Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding.5 We shall, accord- ingly, grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Respondent is, and has been at all times material herein, a State of Washington corporation with an office and place of business located at Camas, Washington. It is engaged in the operation of a proprietary nursing home facility. Respondent, dur- ing the past 12 months, which period is representa- tive of all times material herein, received gross revenue in excess of $100,000. Respondent, through its subsidiaries, during the past 12 months, which period is representative of all times material herein, in the course and conduct of its business operations, purchased and caused to be transferred and deliv- ered to its Camas facility, goods and materials valued in excess of $5,000 which were transported to said facility from States other than the State of Washing- ton. 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 4 Kendall College, 228 NLRB 1083 (1977). ! In its answer to the complaint, Respondent denies knowledge sufficient to form a belief that the Union is a labor organization within the meaning of the Act, which under Sec. 102.20 of the Board's Rulies and Regulations operates as a denial. This issue was or could have been litigated in the underlying representation case and may not be relitigated here. Teledyne, Landis Machine, 212 NLRB 73, 74, fn. 4(1974). 88 HIGHLAND TERRACE CONVALESCENT CENTER 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 No. 92, 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 constitute a unit appropriate for collective-bargain- ing purposes within the meaning of Section 9(b) of the Act: All registered nurses employed by the Employ- er at its facility located at 640 N.E. Everett, Camas, Washington, but excluding all other professional employees, office clerical employees, guards and supervisors as defined in the Act, and all other employees. 2. The certification On November 15, 1976, a majority of the employ- ees of Respondent in said unit, in a secret ballot election conducted under the supervision of the Regional Director for Region 19, 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 November 23, 1976, 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 January 19, 1977, 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 February 1, 1977, and continu- ing 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 February 1, 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, Respon- 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 1, 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 com- mences 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 (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. Highland Terrace Convalescent Center, A Wholly Owned Subsidiary of Centennial Villas, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Service Employees International Union, Local No. 92, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All registered nurses employed by the Employ- er at its facility located at 640 N.E. Everett, Camas, Washington, but excluding all other professional employees, office clerical employees, guards and 89 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 November 23, 1976, 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 February 1, 1977, 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)( ) 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, Highland Terrace Convalescent Center, A Wholly Owned Subsidiary of Centennial Villas, Inc., Camas, Washington, 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 No. 92, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All registered nurses employed by Employer at its facility located at 640 N.E. Everett, Camas, Washington, but excluding all other professional employees, 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 Camas, Washington, facility, copies of the attached notice marked "Appendix." 6 Copies of said notice, on forms provided by the Regional Director for Region 19, 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 thereaf- ter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able 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 19, 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 MEMBERS 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 No. 92, 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: 90 HIGHLAND TERRACE CONVALESCENT CENTER All registered nurses employed by the Employer at its facility located at 640 N.E. Everett, Camas, Washington, but excluding all other professional employees, office clerical employees, guards and supervisors, as defined in the Act. HIGHLAND TERRACE CONVALESCENT CENTER, A WHOLLY OWNED SUBSIDIARY OF CENTENNIAL VILLAS, INC. 91