The New Orleans Home for Incurables

THE NEW ORLEANS HOME FOR INCURABLES 189 The New Orleans Home for Incurables and Service Employees' International Union, AFL-CIO. Case 15-CA-5163 June 28, 1974 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO Upon a charge filed on February 20, 1974, by Ser- vice Employees' International Union, AFL-CIO, herein called the Union, and duly served on The New Orleans Home for Incurables, herein called Respon- dent, the General Counsel of the National Labor Re- lations Board, by the Regional Director for Region 15, issued a complaint on March 14, 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 Adminis- trative 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 25, 1974, following a Board election in Case 15-RC-5302, 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 15, 1974, and at all times there- after, 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 27, 1974, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On April 15, 1974, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on April 27, 1974, 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 be granted. Respondent thereafter filed a Cross-Mo- tion for Summary Judgment. Pursuant to the provisions of Section 3(b) of the 1 Official notice is taken of the record in the representation proceedings, Cases 15-RC-5302 and 15-RC-4992, 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. 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 The basic issue raised by the Respondent in its answer to the complaint and its Cross-Motion for Summary Judgment is that it is an institution entitled to the statutory exemption afforded nonprofit hospi- tals in Section 2(2) of the Act and thus the Board erred in asserting jurisdiction over it in the representation proceeding. Review of the record herein reveals two representa- tion cases, 15-RC-4992 and 15-RC-5302, involving the Respondent and Union. In Case 15-RC-4992, the Respondent contended at the hearing that it should be exempt from the Board's jurisdiction because it was a nonprofit hospital similar to that found by the Board to be outside its jurisdiction in Sierra Hospital Foundation, 181 NLRB 869. After full litigation and consideration, the Regional Director issued his Deci- sion and Direction of Election in which he found that the Respondent was a nonprofit extended care fAcility of a type over which the Board had asserted jurisdic- tion in Drexel Home, Inc., 182 NLRB 1045, and relat- ed cases. Accordingly, he directed an election. The Respondent filed a timely request for review, reassert- ing its jurisdictional contention before the Board. The Board, on November 13, 1972, denied the Respondent's request for review as not raising sub- stantial issues 'warranting review. The election was held on November 16, 1972, and resulted in a vote against union representation. Thereafter in Case 15-RC-5302, upon a new peti- tion filed by the Union, a hearing was held at which the Respondent again raised and litigated the issue of its status as a nonprofit hospital rather than an ex- tended care facility. The Regional Director, in his Decision and Direction of Election issued December 27, 1973, found that the Respondent's operations had not significantly changed since the previous Decision and Direction of Election, and no additional evidence was introduced warranting reversal of that decision. Finding that it would effectuate the policies of the Act to assert jurisdiction, he directed an election. The election was held on January 25, 1974, and resulted in a 53-to-30 vote in favor of the Union, with 2 void ballots. The Respondent did not file objections thereto, and, accordingly, the Regional Director certi- fied the Union on February 4, 1974. It thus appears that Respondent, in its answer to the complaint and Cross-Motion for Summary Judgment, 212 NLRB No. 43 190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD is attempting to relitigate the jurisdictional issue. Hav- ing had, and taken advantage of, the opportunity to do so in the underlying representation cases, Respon- dent may not-rdlitigate this issue in the present unfair labor practice proceeding. It is well settled that in the absence of newly discov- erpd 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.2 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.3 We therefore find that the Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding.4 We shall, accordingly, grant the General Counsel's Motion for Summary Judgment and deny the Respondent's Cross-Motion for Summary Judg- ment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT Respondent, a Louisiana corporation with its prin- cipal office and place of business in New Orleans, Louisiana, is now, and has been at all times material herein, a nonprofit nursing home 5 with related facili- ties providing skilled and intermediate nursing care services to incurable patients. During the past 12 2 See Pittsburgh Plate Glass Co v NLRB , 313 U S 146, 162 ( 1941). Rules and Regulations of the Board , Sees 102 67(f) and 102 69(c) 3 Because questions have recently been raised concerning the Board's pro- cedures for deciding requests for review which were in effect at the time the request for review in Case I5-RC-4992 was denied , the panel has considered de novo in the instant proceeding the issues sought to be raised by said request for review, and has determined that the request was properly denied for lack of merit in that it raised no issues which would have warranted granting review of the Regional Director's Decision and Direction of Election The Respondent denies the appropriateness of the unit and the Union's status as a labor organization in its answer to the complaint These issues, having been litigated and determined in the underlying representation cases, may not be relitigated herein Cherokee Nitrogen Company, 200 NLRB No 89 5 In its answer to the complaint, Respondent "rejects" the characterization of its operation as a nonprofit "nursing home," and further states that it is within the functional definition of a nonprofit "hospital" within the meaning of Sec 2(2) of the Act How the Respondent chooses to characterize its operation does not preclude the Board's asserting jurisdiction over the Re- spondent if in fact its operation is within the general classification of nursing home and related facility Drexel Home, Inc, 182 NLRB 1045, 1046 months, which period is representative of all times material herein, Respondent received revenues in ex- cess of 5250,000 and, during the same period, pur- chased and received goods valued in excess of $50,000, which goods were shipped directly to its sup- pliers from points outside the State of Louisiana. 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. 11 THE LABOR ORGANIZATION INVOLVED Service Employees' International Union, 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 urtit appropriate for collective-bargaining pur- poses within the meaning of Section 9(b) of the Act: All maids and janitors, maintenance men, di- etary workers, the licensed engineer, nurses aides, orderlies, waivered licensed practical nurs- es, nonsupervisory licensed practical nurses, and therapy aide; excluding office clerical employees, professional employees, the consulting dietician, guards, and supervisors as defined in the Act. 2. The certification On January 25, 1974, 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 15 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 February 4, 1974, 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 February 11, 1974, and at all times thereafter , the Union has requested the Respondent to bargain collectively with it as the ex- THE NEW ORLEANS HOME FOR INCURABLES clusive collective-bargaining representative of all the employees in the above-described unit. Commencing on or about February 15, 1974, 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 representative for collec- tive bargaining of all employees in said unit. Accordingly, we find that the Respondent has, since February 15, 1974, 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., 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 Con- struction Company, 149 NLRB 1419, 1421 (1964), enfd . 350 F.2d 57 (C.A. 10, 1965). 191 The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. The New Orleans Home for Incurables is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Service Employees' International Union, AFL- CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All maids and janitors, maintenance men, di- etary workers, the licensed engineer, nurses aides, or- derlies, waivered licensed practical nurses, nonsupervisory licensed practical nurses, and therapy aide; excluding office clerical employees, professional employees, the consulting dietician, guards, and su- pervisors as defined in the Act constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since February 4, 1974, 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 February 15, 1974, 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, The New 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Orleans Home for Incurables , New Orleans, Louisi- ana, 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 condi- tions of employment , with Service Employees ' Inter- national Union, AFL-CIO, as the exclusive bargaining representative of its employees in the fol- lowing appropriate unit: All maids and janitors, maintenance men, di- etary workers, the licensed engineer, nurses aides, orderlies, waivered licensed practical nurs- es, nonsupervisory licensed practical nurses, and therapy aide; excluding office clerical employees, professional employees, the consulting dietician, 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 New Orleans, Louisiana, facility cop- ies of the attached notice marked "Appendix." 6 Cop- ies of said notice, on forms provided by the Regional Director for Region 15, after being duly signed by Respondent's representative, shall be posted by Re- spondent 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 Respondent to insure that said notices are not altered, defaced, or covered by any other material. . (c) Notify the Regional Director for Region 15, 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 Ser- vice Employees' International Union, AFL- CIO, as the exclusive representative of the em- ployees in the bargaining unit described below. WE WILL NOT in any like or related manner in- terfere 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 maids and janitors, maintenance men, di- etary workers, the licensed engineer, nurses aides, orderlies, waivered licensed practical nurses, nonsupervisory licensed practical nurs- es, and therapy aide; excluding office clerical employees, professional employees, the con- sulting dietician, guards, and supervisors as de- fined in the Act. THE NEW ORLEANS HOME FOR INCURABLES (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, Plaza Tower, Suite 2700, 1001 How- ard Avenue, New Orleans, Louisiana 70113, Tele- phone 504-527-6361.