LaCrescent Constant Care Center, Inc.

LaCRESCENT CONSTANT CARE CENTER 671 LaCrescent Constant Care Center, Inc. and Minnesota Council #65, American Federation of State, County and Municipal Employees, AFL-CIO. Case 18-CA-4099 June 18, 1974 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY Upon a charge filed on January 30, 1974, by Minnesota Council #65, American Federation of State, County and Municipal Employees, AFL-CIO, herein called the Union, and duly served on LaCrescent Constant Care Center, Inc., herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Acting Regional Director for Region 18, issued a complaint on February 4, 1974, 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 January 4, 1974, following a Board election in Case 18-RC-9536 the Union was duly certified as the exclusive collective-bargaining representative of Re- spondent's employees inthe unit found appropriate;' and that, commencing on or about January 22, 1974, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collective- ly with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On February 15, 1974, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On March 15 and 18, 1974, the Respondent and the Union entered into a stipulation in which the parties, inter alia, stipulated that there were no factual issues warranting a hearing and waived the right to a hearing, the filing of briefs before the Board, or the right to receive and respond to an Order To Show Cause why the Board should not grant counsel for the General Counsel's Motion for Summary Judgment. On March 22, 1974, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on April 4, 1974, the Board issued an order transferring the proceeding to the Board, and approving and making a part of the record the stipulation of the Respondent and the Union. 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, the Respondent basically contends that the Board erred in refusing to set aside the election in the underlying representation case on the basis of its objections thereto, and that therefore the Union's certification is invalid. As indicated by the stipulation entered herein, there are no issues of fact in dispute. Our review of the record, including Case 18-RC-9536, reveals an election conducted pursuant to a Stipulation for Certification Upon Consent Election on June 5, 1973, which resulted in a 26-to- 12 vote in favor of the Union. Respondent filed timely objections to the election, alleging in substance that the Union had misrepresented (1) the Respondent's ability to secure increased reimbursement from state welfare agencies which would enable it to give employee wage increases; (2) the basis of a court judgment adverse to Respondent in an action by it seeking to obtain additional reimbursement from state welfare agencies; and (3) Respondent's finan- cial standing in order to induce employees to believe that the Respondent was "profiteering" at their expense. After investigation, the Acting Regional Director, on July 25, 1973, issued his Report on Objections and Recommendation, finding that although the Union had made misrepresentations as alleged in the objections, Respondent had submitted sufficient information to the employees to allow them to make an independent evaluation thereof. The Acting Regional Director also found no merit in Respon- dent's subsequent objection based on the Union's accusation that the Respondent's agent made a false statement concerning the local Union's president employed by another employer, and on a false allegation that the agent had subsequently apolo- gized to the president. Accordingly, the Acting Regional Director recommended overruling the I Official notice is taken of the record in the representation proceeding , Golden Age Beverage Co., 167 NLRB 151, enfd 415 F.2d 26 (C.A 5, 1969), Case 18-RC-9536, as the term "record" is defined in Secs. 102 68 and Intertype Co. v. Penello, 269 F.Supp. 573 (D.C. Va., 1967); Follett Corp., 164 102.69(f) of the Board's Rules and Regulations, Series 8, as amended. See NLRB 378, enfd. 397 F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA. LTV Electrosystems, Inc., 166 NLRB 938, enfd. 388 F.2d 683 (C.A. 4, 1968), 211 NLRB No. 72 672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD objections in their entirety and certifying the Union. Respondent filed timely exceptions to the report, reasserting its objections and requesting a hearing thereon. The Board panel, with Member Kennedy dissent- ing, issued a Decision and Certification of Repre- sentative (208 NLRB No. 9) on January 4, 1974, in which it found that the exceptions raised no material issues of fact or law which would warrant a hearing or the reversal of the Acting Regional Director's findings, conclusions, or recommendations . Accord- ingly, it certified the Union. On January 9, 1974, the Respondent filed a Motion for Reconsideration, reasserting its arguments made on the objections. On January 18, 1974, the Board panel, with Member Kennedy dissenting, denied this motion as lacking in merit as it presented no new evidence or matters not previously considered. In the instant proceeding, as noted above, Respon- dent has stipulated to stand on the record in the representation proceeding and thus is attempting to relitigate issues adversely determined to it in the representation case in this unfair labor practice proceeding.2 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 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. We shall, accordingly, grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: dent, in the course and conduct of its business operation, derived gross revenue in excess of $300,000, and purchased and caused to be transport- ed to its Minnesota place of business , goods and materials valued in excess of $50,000, of which goods and materials valued in excess of $50,000 were transported and delivered to said place of business in the State of Minnesota, directly from points located outside the State of Minnesota. 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 Minnesota Council #65, American Federation of State, County and Municipal Employees, 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 full-time and regular part-time nurses aides, housekeeping employees, laundry employees, dietary employees, social activities aide, orderlies, and maintenance employees employed by Re- spondent at its LaCrescent, Minnesota, facility; excluding casual employees, temporary employ- ees, confidential employees, LPN's, RN's, guards, and supervisors as defined in the National Labor Relations Act, as amended. 2. The certification FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent is a Minnesota corporation engaged in the business of a proprietary nursing home in the city of LaCrescent, State of Minnesota. During the calendar year past, which period is representative of its operations at all times material hereto, Respon- On June 5, 1973, 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 18, 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 January 4, 1974, and the 7 By its denials in its answer of the Union's status as a labor organization Board in the representation case. and the appropriateness of the bargaining unit , the Respondent is also 3 See Pittsburgh Plate Glass Co. v. N.LRB., 313 U.S. 146,162 (1941); seeking to relitigate issues which were considered and deternuned by the Rules and Regulations of the Board , Secs. 102.67(f) and 102.69(c). La CRESCENT CONSTANT CARE CENTER 673 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 17, 1974, 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 January 22, 1974, 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 January 22, 1974, 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 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 onthe,date Respondent commences 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. LaCrescent Constant Care Center, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Minnesota Council #65, American Federation of State, County and Municipal Employees, AFL-CIO, is a labor organization within the mean- ing of Section 2(5) of the Act. 3. All full-time and regular part-time nurses aides, housekeeping employees, laundry employees, dietary employees, social activities aide, orderlies, and maintenance employees employed by Respondent at its LaCrescent, Minnesota, facility; excluding casual employees, temporary employees, confidential em- ployees, LPN's, RN's, 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 January 4, 1974, 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 January 22, 1974, 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, LaCrescent Constant Care Center, Inc., LaCrescent, 674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Minnesota, its officers, agents, successors, and of the Act by refusing to bargain with the Union. assigns, shall: Accordingly, I would deny the General Counsel's 1. Cease and desist from : Motion for Summary Judgment and dismiss the (a) Refusing to bargain collectively concerning complaint in its entirety. rates of pay, wages, hours, and other terms and conditions of employment, with Minnesota Council #65, American Federation of State, County and Municipal Employees, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All full-time and regular part-time nurses aides, housekeeping employees, laundry employees, dietary employees, social activities aide, orderlies, and maintenance employees employed by Re- spondent at its LaCrescent, Minnesota, facility; excluding casual employees, temporary employ- ees, confidential employees , LPN's, RN's, 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 LaCrescent, Minnesota, location copies of the attached notice marked "Appendix." 4 Copies of said notice, on forms provided by the Regional Director for Region 18 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 18, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. MEMBER KENNEDY, dissenting: In my earlier dissent in the representation case, I found that a substantial misrepresentation by the Union of Respondent's financial condition warrant- ed setting aside the election and directing that a new election be held. LaCrescent Constant Care Nursing Center, Inc., 208 NLRB No. 9. In these circum- stances, contrary to my colleagues, I would not find that the Respondent violated Section 8(a)(5) and (1) 4 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 Minne- sota Council #65, American Federation of State, County and Municipal Employees, 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 full-time and regular part-time nurses aides, housekeeping employees, laundry employees, dietary employees, social activi- ties aide, orderlies, and maintenance em- ployees employed by the Employer at its LaCrescent, Minnesota, facility; excluding casual employees, temporary employees, confidential employees, LPN's, RN's, guards, and supervisors as defined in the Act. LACRESCENT CONSTANT CARE CENTER, INC. (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 LaCRESCENT CONSTANT CARE CENTER 675 days from the date of posting and must not be Board's Office, 316 Federal Building, 110 South altered, defaced, or covered by any other material. Fourth Street, Minneapolis, Minnesota 55401, Tele- Any questions concerning this notice or compli- phone 612-725-2611. ance with its provisions may be directed to the