Sunshine-50 Care Centers, Inc.

256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sunshine-50 Care Centers, Inc., Hilton Convalescent Home Division and Nursing and Convalescent Home Employees Division of Local 79, Service Em- ployees International Union, AFL-CIO. Case 7-CA-11947 September 12, 1975 DECISION AND ORDER By CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO Upon a charge filed on April 22, 1975, by Nursing and Convalescent Home Employees Division of Lo- cal 79, Service Employees International Union, AFL-CIO, herein called the Union, and duly served on Sunshine-50 Care Centers, Inc., Hilton Convales- cent Home Division, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 7, issued a complaint on May 16, 1975, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting com- merce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Rela- tions Act, as amended. Copies of the charge, com- plaint, and notice of hearing before an Administra- tive 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 March 25, 1975, following a Board election in Case 7-RC-12548, the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate; l and that, commenc- ipg on or about April 17, 1975, 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 May 28, 1975, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On June 26, 1975, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on July 2, 1975, the Board issued an order transferring the proceeding to the Official notice is taken of the record in the representation proceeding, Case 7-RC-12548, 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 (C.A. 7, 1968), Sec. 9(d) of the NLRA. Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respondent thereafter failed to file a re- sponse 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 In its answer to the complaint, Respondent admits the operative facts set forth in the complaint and de- nies only the conclusionary averments while affirma- tively contending simply that the Union was not properly certified and thus did not represent a major- ity of the employees. Review of the record herein, including the record in Case 7-RC-12548, reveals that an election con- ducted pursuant to a Stipulation for Certification Upon Consent Election resulted in a vote of 24 to 13 in favor of the Union with 1 ballot challenged. Re- spondent filed timely objections to conduct affecting the results of the election alleging, in substance, that shortly before the election, the Union distributed false and misleading circulars regarding Respondent's financial condition and an officer of the Respondent; threatened an employee with loss of her job if she did not vote for the Union; threatened another employee with loss of her job unless she signed a union card; and promised specific fringe benefits to an employee if she signed a union card and voted for the Union. The objections further al- leged that the Board agent conducting the election failed to appear at a preelection conference, arrived late at a postponed conference, and left the voting area several times during the polling period leaving the ballot box and unmarked ballots beyond his con- trol. After investigation, the Regional Director issued a Report and Recommendation on Objections on De- cember 12, 1974, in which he concluded that Respondent's objections did not raise material and substantial matters affecting the election results and, accordingly, he recommended that they be overruled in their entirety and that the Union be certified. Re- spondent thereupon filed exceptions to the Regional Director's Report and Recommendation on Objec- tions, substantially reiterating the contentions ad- vanced in the objections. On March 25, 1975, a Board panel majority, with Member Kennedy dis- senting, issued a Decision and Certification of Rep- resentative (217 NLRB No. 14), in which it adopted the Regional Director's report and certified the 220 NLRB No. 53 SUNSHINE-50 CARE CENTERS Union as exclusive bargaining agent of employees in the unit stipulated to be appropriate. It thus appears that Respondent is attempting in this proceeding to relitigate matters fully litigated and finally de- termined in the representation proceeding. 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 a prior representation proceeding.' 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 Michigan corporation, maintains its only office and place of business in Ferndale, Michi- gan, where it is engaged in providing nursing care services to the ill and infirm. During its past fiscal year Respondent's gross revenues were in excess of $250,000. During the same period Respondent pur- chased goods valued in excess of $5,000 from points outside the State of Michigan, which goods were shipped directly to its Michigan facility. 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. 11. THE LABOR ORGANIZATION INVOLVED Nursing and Convalescent Home Employees Divi- sion of Local 79, Service Employees International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2 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) III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit 257 The following employees of the Respondent con- stitute a unit appropriate for collective -bargaining purposes within the meaning of Section 9(b) of the Act: All full-time and regular part-time employees employed by Employer at its facility located at 3161 Hilton, Ferndale, Michigan, including nurses aides, orderlies, housekeeping aides, maintenance employees, laundry aides and kitchen employees; but excluding office clerical employees, registered nurses, professional em- ployees, licensed practical nurses, guards and supervisors as defined in the Act. 2. The certification On August 22, 1974, a majority of the employees of Respondent in said unit, in a secret ballot election conducted wider the supervision of the Regional Di- rector for Region 7, 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 March 25, 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 April 10, 1975, and at all times thereafter, the Union has requested the Re- spondent to bargain collectively with it as the exclu- sive collective-bargaining representative of all the employees in the above-described unit. Commencing on or about April 17, 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 April 17, 1975, and at all times thereafter, re- fused 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. 258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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. 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. Sunshine-50 Care Centers, Inc., Hilton Conva- lescent Home Division, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Nursing and Convalescent Home Employees Division of Local 79, Service Employees Internation- al Union, 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 employed by Employer at its facility located at 3161 Hilton, Ferndale, Michigan, including nurses aides, orderlies, housekeeping aides, maintenance employ- ees, laundry aides and kitchen employees; but ex- cluding office clerical employees, registered nurses, professional employees, licensed practical nurses, guards and supervisors as defined in the Act, consti- tute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since March 25, 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 purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about April 17, 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 Sun- shine-50 Care Centers, Inc., Hilton Convalescent Home Division, Ferndale, Michigan, 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 con- ditions of employment with Nursing and Convales- cent Home Employees Division of Local 79, Service Employees International Union, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All full-time and regular part-time employees employed by Employer at its facility located at 3161 Hilton, Ferndale, Michigan, including nurses aides, orderlies, housekeeping aides, maintenance employees, laundry aides and kitchen employees; but excluding office clerical employees, registered nurses, professional em- ployees, licensed practical nurses, 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 SUNSHINE-50 CARE CENTERS 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 at 3161 Hilton, Ferndale, Michigan, copies of the attached notice marked "Ap- pendix." 3 Copies of said notice, on forms provided by the Regional Director for Region 7, 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, de- faced, or covered by any other material. (c) Notify the Regional Director for Region 7, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 3 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 259 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 Nurs- ing and Convalescent Home Employees Divi- sion of Local 79, Service Employees Internation- al Union, AFL-CIO, as the exclusive representative of the employees in the bargain- ing 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, wag- es, 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 by Employer at its facility locat- ed at 3161 Hilton, Ferndale, Michigan, in- cluding nurses aides, orderlies, housekeeping aides, maintenance employees, laundry aides and kitchen employees; but excluding office clerical employees, registered nurses, profes- sional employees, licensed practical nurses, guards and supervisors as defined in the Act. SUNSHINE-50 CARE CENTERS, INC., HILTON CONVALESCENT HOME DIVISION