Hy-Load Convalescent Hospital

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hy-Lond Enterprises, Inc. d/b/a Hy-Lond Convales- cent Hospital and Hospital and Institutional Workers Union, Local 250, AFL-CIO. Case 20- CA-12964 September 28, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO Upon a charge filed on June 7, 1977, by Hospital and Institutional Workers Union, Local 250, AFL- CIO, herein called the Union, and duly served on Hy-Lond Enterprises, Inc., d/b/a Hy-Lond Conva- lescent Hospital, herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 20, issued a complaint on June 24, 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 March 1, 1977, following a Board election in Case 20-RC- 13662, the Union was duly certified as the exclusive collective-bargaining representative of Respondent's employees in the unit found appropriate; 1 and that, commencing on or about March 23, 1977, and at all times thereafter, Respondent, contrary to the Union's request, has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining representative and to pro- vide it with information relating to the wages, hours, and terms of employment of the employees in the appropriate unit. On July 7, 1977, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On July 14, 1977, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on August 3, 1977, 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 an answer to Notice To Show Cause, and the i Official notice is taken of the record in the representation proceeding, Case 20-RC-13662, 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 Electrosysteems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (C.A. 4, 232 NLRB No. 68 General Counsel filed a response to Respondent's answer. 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 answers to the complaint and the Notice To Show Cause, Respondent contends that the certifica- tion of the Union in the underlying representation case is invalid on the basis of its objections therein and that the Regional Director denied it due process by not directing an evidentiary hearing thereon. A review of the record herein, including the record in Case 20-RC-13662, reveals that, pursuant to a Stipulation of Certification Upon Consent Election, an election was held on September 23, 1976, and resulted in a 36-to- 11 vote in favor of the Union, with 3 challenged ballots. Respondent filed timely objections to conduct affecting the results of the election containing the following allegations: The Union engaged in election- eering among employees waiting in line to vote and made false and misleading statements, promises of benefits, and threats to induce employees to vote for it; the Board agent interfered with the fair operation of the election by not following procedures as to challenges and instructions to observers, permitting electioneering, and failing to exclude children from the voting area. On November 8, 1976, the Regional Director issued her Report on Objections in which she found that Respondent's objections raised no substantial or material issues of fact or law with respect to the election and were consequently without merit. Accordingly, she recommended that the objections be overruled and a certification of representative be issued to the Union. Respondent filed timely exceptions to the Regional Director's Report on Objections reiterating its objections and request for a hearing. On March 11, 1977, the Board issued its Decision and Certification of Representative adopting the Regional Director's findings and recommendations. 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 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, as amended. 450 HY-LOND CONVALESCENT HOSPITAL to relitigate issues which were or could have been litigated in a prior representation proceedings All issues raised by Respondent in this proceeding were or could have been litigated in the prior representation proceeding, and Respondent does not offer to adduce at a hearing any newly discovered or previously unavailable evidence,3 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 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 I. THE BUSINESS OF RESPONDENT Respondent, a California corporation with its principal place of business in Modesto, California, is engaged in the operation of a convalescent hospital. During the past calendar year, Respondent received gross revenues in excess of $100,000, and received payments from Medicare and Medic-Aid in excess of $5,000. 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 Hospital and Institutional Workers Union, Local 250, 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 i. The unit The following employees of Respondent constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All housekeeping aides, orderlies, maintenance, kitchen employees, and licensed vocational nurses employed by Respondent; excluding all registered nurses, office clerical employees, guards, watch- 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). men and engineers, and supervisors as defined in the Act. 2. The certification On September 23, 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 20, designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the collective-bargaining representa- tive of the employees in said unit on March 11, 1977, 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 March 23, 1977, and at all times thereafter, the Union has requested Respon- dent to bargain collectively with it as the exclusive collective-bargaining representative of all the em- ployees in the above-described unit. Commencing on or about May 23, 1977, and continuing at all times thereafter to date, 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 Respondent has, since March 23, 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, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. C. The Request for Information and Respondent's Refusal Commencing on or about March 23, 1977, and at all times thereafter, the Union has requested Respon- dent to provide it with information relating to the wages, hours, and terms of employment of all the employees in the above-described unit. Commencing on or about March 23, 1977, and continuing at all times thereafter to date, Respondent has refused, and continues to refuse, to provide the Union with said information. Accordingly, we find that Respondent has, since March 23, 1977, and at all times thereafter, refused to provide the Union with information relevant to its function as the exclusive representative of the 3 See CSC Oil Company, 220 NLRB 19 (1975). 451 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees in the above-described unit, and that, by such refusal, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (I) 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. We shall also order it to provide the requested information. 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 I. Hy-Lond Enterprises, Inc., d/b/a/ Hy-Lond Convalescent Hospital, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Hospital and Institutional Workers Union, Local 250, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All housekeeping aides, orderlies, mainte- nance, kitchen employees, and licensed vocational nurses employed by Respondent; excluding all registered nurses, office clerical employees, guards, watchmen and engineers, 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 March 11, 1977, 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 purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about March 23, 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 refusing on or about March 23, 1977, and at all times thereafter, to furnish the Union with information relating to wages, hours, and terms of employment of the employees 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. 7. By the aforesaid refusal to bargain with the Union and to provide it with the requested informa- tion, 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 meaning of Section 8(a)(l) of the Act. 8. 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, Hy-Lond Enterprises, Inc., d/b/a Hy-Lond Conva- lescent Hospital, Modesto, California, 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 Hospital and Institu- tional Workers Union, Local 250, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All housekeeping aides, orderlies, maintenance, kitchen employees, and licensed vocational nurses employed by Respondent; excluding all registered 452 HY-LOND CONVALESCENT HOSPITAL nurses, office clerical employees, guards, watch- men and engineers, and supervisors as defined in the Act. (b) Refusing to furnish the above-named labor organization with information relevant to its function as the exclusive representative of the employees in the appropriate unit. (c) 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) Upon request, provide the Union with informa- tion relevant to its function as the exclusive represen- tative of the employees in the appropriate unit. (c) Post at its Modesto, California, place of business copies of the attached notice marked "Appendix." 4 Copies of said notice, on forms provided by the Regional Director for Region 20, after being duly signed by Respondent's representa- tive, 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 Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. I 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 Hospi- tal and Institutional Workers Union. Local 250, AFL-CIO, as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT refuse to provide the above- named Union with information relevant to its function as the exclusive representative of the employees in the bargaining unit. 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 housekeeping aides, orderlies, mainte- nance, kitchen employees, and licensed vocational nurses employed by Respondent; excluding all registered nurses, office clerical employees, guards, watchmen and engineers, and supervisors as defined in the Act. WE WILL, upon request, provide the above- named Union with information relevant to its function as the exclusive representative of the employees in the bargaining unit. HY-LOND ENTERPRISES, INC. D/B/A HY-LOND CONVALESCENT HOSPITAL 453