Willowcrest-Bamberger for Convalescents

WILLOWCREST-BAMBERGER 31 Willowcrest-Bamberger for Convalescents and Na- tional Union of Hospital and Health Care Employ- ees, RWDSU, AFL-CIO, District 1199C. Case 4- CA-7270 August 28, 1975 DECISION AND ORDER should not be granted. Respondent thereafter filed 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: BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND PENELLO Upon a charge filed on February 26, 1975, by Na- tional Union of Hospital and Health Care Employ- ees, RWDSU, AFL-CIO, District 1199C, herein called the Union, and duly served on Willowcrest- Bamberger for Convalescents, herein called the Re- spondent, the General Counsel of the National La- bor Relations Board, by the Acting Regional Direc- tor for Region 4, issued a complaint on March 28, 1975, 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 be- fore 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 20, 1975, following a Board election in Case 4-RC- 11134 the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate;' and that, commenc- ing on or about February 24, 1975, and at all times thereafter, 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, 1975, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On June 2, 1975, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on June 10, 1975, 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 'Official notice is taken of the record in the representation proceeding, Case 4-RC-11134, 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, 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), Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (CA. 7, 1968); Sec 9(d) of the NLRA. Ruling on the Motion for Summary Judgment In its answer to the complaint and in its response to the Notice To Show Cause, Respondent disputes the Union's majority status and the validity of the certification on the ground that the Regional Direc- tor erred in overruling its challenges to the ballots of three employees cast in the election in the underlying representation proceeding. Our review of the record in the representation pro- ceeding, Case 4-RC-11134, indicates that in an elec- tion conducted pursuant to an agreement for consent election the vote was 22 for the Union, 22 against the Union, with 3 ballots challenged. Challenges were thus sufficient in number to affect the results of the election. After an investigation, the Acting Regional Director issued a Report on Challenged Ballots and Notice of Hearing in which he ordered that a hearing be held to resolve substantial and material factual issues. A hearing was held on October 7, 1974, before a duly designated Hearing Officer. On December 20, 1974, the Hearing Officer issued his Report on Chal- lenged Ballots in which he recommended that the challenges to the three ballots be overruled and that the challenged ballots be opened and counted. No exceptions to the Hearing Officer's report were filed by either party within the time provided therefor, whereupon the Regional Director adopted the find- ings, conclusions, and recommendations of the Hear- ing Officer pro forma in an Order Directing the Opening and Counting of Challenged Ballots. A re- vised tally of ballots indicated that a majority of the valid votes had been cast in favor of the Union and the Regional Director, accordingly, certified the Union as the collective-bargaining representative of the employees in the unit found appropriate herein. Clearly, in its answer to the complaint and in its response to the Notice To Show Cause, the Respon- dent is attempting to relitigate the same issues which it raised and which were determined in the represen- tation proceeding, Case 4-RC-11134. It is well settled that in the absence of newly dis- covered or previously unavailable evidence or special circumstances a respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to reliti- gate issues which were or could have been litigated in 220 NLRB No. 13 32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a prior representation proceeding.2 All issues raised by the Respondent in this pro- ceeding were or could have been litigated in the prior representation proceeding, and the Respondent does not offer to adduce at a hearing any newly discov- ered or previously unavailable evidence, nor does it allege that any special circumstances exist herein which would require the Board to reexamine the de- cision 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: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent, a Pennsylvania corporation, is a non- profit concern providing skilled nursing and conva- lescent services at its facility in Philadelphia, Penn- sylvania. During the past year Respondent 's gross receipts from services performed for patients exceed- ed $100,000. During the same period Respondent purchased and received goods valued in excess of $50,000 indirectly from firms located outside the Commonwealth of Pennsylvania. We find, on the basis of the foregoing, that Re- spondent is, and has been at all times material here- in, 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 juris- diction herein. H. THE LABOR ORGANIZATION INVOLVED National Union of Hospital and Health Care Em- ployees, RWDSU, AFL-CIO, District 1199C, is a la- bor organization within the meaning of Section 2(5) of the Act. purposes within the meaning of Section 9 (b) of the Act: All licensed practical nurses, nursing assis- tants, food service, housekeeping and mainte- nance personnel of Willowcrest-Bamberger for Convalescents, Philadelphia, Pennsylvania; but excluding all other employees, clericals, guards and supervisors as defined in the Act. 2. The certification On September 10, 1974, a majority of the employ- ees of Respondent in said unit, in a secret ballot elec- tion conducted under the supervision of the Regional Director for Region 4, 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 20, 1975, 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 February 13, 1975, and at all times thereafter, the Union has requested the Respondent to bargain collectively with it as the ex- clusive collective-bargaining representative of all the employees in the above-described unit. Commencing on or about February 24, 1975, 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 collective bargaining of all employees in said unit. Accordingly, we find that the Respondent has, since February 24, 1975, 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 prac- tices within the meaning of Section 8(a)(5) and (1) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of the Respondent con- stitute a unit appropriate for collective-bargaining 2 See Pittsburgh Plate Glass C o . 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). 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, inti- mate, 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 commerce. WILLOWCREST-BAMBERGER 33 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 ap- propriate 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 se- lected bargaining agent for the period provided by law, we shall construe the initial period of certifica- tion as beginning on the date Respondent commenc- es 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 (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); Bur- nett 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. Willowcrest-Bamberger for Convalescents is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. National Union of Hospital and Health Care Employees, RWDSU, AFL-CIO, District 1199C, is a labor organization within the meaning of Section 2(5) of the Act. 3. All licensed practical nurses, nursing assistants, food service, housekeeping and maintenance person- nel of Willowcrest-Bamberger for Convalescents, Philadelphia, Pennsylvania ; but excluding all other employees, clericals, guards and supervisors as de- fined 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 20, 1975, 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 purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 5. By refusing on or about February 24, 1975, 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 Re- spondent in the appropriate unit, Respondent has en- gaged 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 Re- lations Board hereby orders that Respondent, Wil- lowcrest-Bamberger for Convalescents, Philadelphia, Pennsylvania, 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 con- ditions of employment with National Union of Hos- pital and Health Care Employees, RWDSU, AFL- CIO, District 1199C, as the exclusive bargaining rep- resentative of its employees in the following appropriate unit: All licensed practical nurses, nursing assis- tants, food service, housekeeping and mainte- nance personnel of Willowcrest-Bamberger for Convalescents, Philadelphia, Pennsylvania; but excluding all other employees, clericals, 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 facility in Philadelphia, Pennsylva- nia, copies of the attached notice marked "Appen- dix." 3 Copies of said notice, on forms provided by 3In 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 " 34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Regional Director for Region 4, 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 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 4, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 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 Na- tional Union of Hospital and Health Care Em- ployees, RWDSU, AFL-CIO, District 1199C, 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 represen- tative of all employees in the bargaining unit de- scribed 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 licensed practical nurses, nursing assis- tants, food service, housekeeping and mainte- nance personnel of Willowcrest-Bamberger for Convalescents, Philadelphia, Pennsylva- nia; but excluding all other employees, cleri- cals, guards and supervisors as defined in the Act. W ILLOWCREST- BAMBERGER FOR CONVALESCENTS