Riverside Hospital for Extended Care

RIVERSIDE HOSPITAL FOR EXTENDED CARE 767 Sierra Pacific Hospitals, Inc., d/b/a Riverside Hospi- tal for Extended Care and Retail Clerks Union, Lo- cal 1434, Retail Clerks International Association, AFL-CIO. Case 20-CA-11426 November 3, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND WALTHER Upon a charge filed on May 7, 1976, by Retail Clerks Union, Local 1434, Retail Clerks Internation- al Association, AFL-CIO, herein called the Union, and duly served on Sierra Pacific Hospitals, Inc., d/b/a Riverside Hospital for Extended Care, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 20, issued a complaint and no- tice of hearing on June 7, 1976, 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 January 14, 1976, following a Board election in Case 20-RC-12678, 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 April 21, 1976, 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 June 18, 1976, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On July 8, 1976, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on July 14, 1976, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General 'Official notice is taken of the record in the representation proceeding, Case 20-RC-12678, 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 Company, 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 Counsel's Motion for Summary Judgment should not be granted. Respondent thereafter filed a response to Notice To Show Cause and the Union filed a brief in support of the Motion for Summary Judgment. 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 and response to the Notice to Show Cause, Respondent contends, in sub- stance, that the certification is invalid (1) because its objection to the campaign activities of two charge nurses, whom Respondent alleged to be supervisors, was improperly overruled and (2) because the Board failed to follow the procedure set forth in its Rules and Regulations and departed from its statutory obligation to determine the appropriate unit by si- multaneously denying and granting a request for re- view of the supervisory status of the charge nurses who were permitted to vote subject to challenge, with the ultimate result that their unit placement was not resolved. In his Motion for Summary Judgment, counsel for the General Counsel argues, in effect, that Respondent seeks herein to relitigate issues raised and resolved in the representation case and this it may not do. We agree with the General Coun- sel. Review of the record, including that in the under- lying representation proceeding, Case 20-RC- 12678,2 establishes that, with respect to unit place- ment issues, Respondent at the hearing contended, inter alsa, that licensed practical nurses and licensed vocational nurses, collectively designated as charge nurses, were supervisors. In her Decision and Direc- tion of Election, issued May 13, 1975, the Acting Re- gional Director concluded, inter alia, that the eight charge nurses were supervisors and excluded them from the unit. The Union filed with the Board a re- quest for review of the Acting Regional Director's exclusion of the charge nurses and a motion that the 2 We do not view as substantial Respondent's contention that the Motion for Summary Judgment is defective because of the failure to attach thereto two documents (I) the Board's telegraphic order denying the Union's re- quest for review of the Acting Regional Director's Decision and Direction of Election and (2) Respondent's brief in support of its exceptions to the Hearing Officer's report filed with the Regional Director The telegraphic order is part of the representation case record of which we have taken official note (see fn I ) As to the brief, we note that it was specifically considered by the Regional Director in making her Second Supplemental Decision and that Respondent 's request to the Board for review of the Regional Director's Second Supplemental Decision adopting the Hearing Officer's report extensively briefed for the Board the issues raised in the brief 226 NLRB No. 126 768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD election be conducted as scheduled on June 12 and that the charge nurses be allowed to cast challenged ballots. Respondent filed a statement opposing the Union's request on the ground that the finding that the charge nurses were supervisors was in accordance with established precedent. On June 6, 1975, the Board (1) denied the Union's request for review on the ground that it raised no substantial issues war- ranting review except as to the supervisory status of the charge nurses and (2) amended the decision to permit the charge nurses to vote subject to challenge, since the issue of their supervisory status could best be determined through the challenge procedure. The Union won the election held on June 12, 1975, the tally showing that the eight challenged ballots were insufficient to affect the results. Respondent filed timely objections to the election alleging, inter alia, (1) that the Board's earlier action in refusing to review directly the issue of the supervi- sory status of the charge nurses and deferring it to the challenge procedure was improper and prevented the definition of an appropriate unit and (2) that the campaign activities of supervisors warranted setting aside the election. After investigation, the Regional Director, on September 8, 1975, issued her supple- mental decision and notice of hearing, overruling (1) above on the grounds that she was bound by the Board's decision thereon and, as to (2) above, or- dering a hearing on the supervisory campaign partici- pation allegation. All remaining objections were overruled. On September 18, 1975, Respondent filed a request for review of the overruling of its objec- tions, arguing, inter alia, that the Board's simulta- neous denial and grant of review on the issue of su- pervisory status of the charge nurses was improper, self-contradictory, and confusing. By telegram dated October 8, 1975, the Board denied Respondent's re- quest for review as raising no substantial issues war- ranting review. After a hearing on the supervisory participation objection, the Hearing Officer, on November 24, 1975, issued his Report on Objections, recom- mending that this objection be overruled based on his findings that the two charge nurses involved therein were not supervisors within the meaning of the Act and that, in any event, their campaign con- duct was not of the type which would warrant setting the election aside. On December 10, 1975, Respon- dent filed with the Regional Director exceptions to the Hearing Officer's report and a brief in support, reiterating its contentions with respect to the supervi- sory status of the two charge nurses and their cam- paign conduct. After considering the report and ex- ceptions and the briefs of the parties, the Regional Director, on January 14, 1976, issued her Second Supplemental Decision and Certification of Repre- sentative, adopting the findings, conclusions, and recommendations of the Hearing Officer, overruling the objection, and certifying the Union. On January 23, 1976, Respondent filed a request for review of the Regional Director's Second Supplemental Decision, basically reiterating its exceptions to the Hearing Officer's report. By telegram dated April 2, 1976, the Board denied the request for review for lack of sub- stantial issues warranting review. It thus appears that the Respondent is attempting to relitigate issues raised and decided in the underly- ing representation proceeding. It is well settled that in the absence of newly discovered or previously un- available evidence or special circumstances a respon- dent 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.' 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: 3 See Pittsburgh Plate Glass Co v NLRB , 313 U S 146, 162 (1941), Rules and Regulations of the Board , Secs 102 67(f) and 102 69(c) Respondent's contention that the unit placement of all the charge nurses has not been resolved is not a valid defense to the complaint It is clear that, however the question of the supervisory status of the charge nurses as a class might ultimately be resolved, its resolution cannot affect the basic appropriateness of the certified unit , the Union's majority therein, or the ability of the parties to bargain in the certified unit There is nothing to preclude the parties from agreeing on the status and unit placement of the charge nurses as a group or from filing a petition seeking to resolve that issue, pursuant to Sec 102 60(b) of the Board's Rules and Regulations, Series 8, as amended See Landis Tool Company, Division of Litton Industries, 203 NLRB 1025 (1973), Glen Manor-Home for the Jewish Aged, 196 NLRB 1166 (1972), Alterman Transport Lines, Inc, 187 NLRB 1037 (1971), The May Department Stores Company, 186 NLRB 86 (1970) We find no merit in the denials of Respondent's answer with respect to the allegations of the complaint concerning the unit , the election results, and the certification of the Union These matters were litigated and resolved in the underlying representation case and may not be relitigated here Respondent's denials of a request and refusal to bargain are likewise with- out merit In its answer, Respondent admits receipt of the Union 's letter dated April 8, 1976 , requesting a bargaining meeting and a letter from it to the Union dated April 21, 1976, refusing to meet As Respondent does not controvert the contents of these letters , which are attached to Respondent's answer and to the Motion for Summary Judgment, we shall deem the allega- tions of the complaint regarding a request and refusal to bargain to be admitted and so find The Boston Store, 224 NLRB 505 (1976), and cases cited therein RIVERSIDE HOSPITAL FOR EXTENDED CARE 769 FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent, a corporation, is engaged in the pro- vision of health care services at a convalescent hospi- tal in Reno, Nevada. During the past calendar year, Respondent, in the course and conduct of its busi- ness operations described above, received gross reve- nues in excess of $250,000 and purchased goods val- ued in excess of $2,000 directly from suppliers located outside the State of Nevada. We find, on the basis of the foregoing, that Re- spondent 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 assertj uris- diction herein. II. THE LABOR ORGANIZATION INVOLVED B. The Request To Bargain and Respondent's Refusal Commencing on or about April 8, 1976, and at all times thereafter the Union has requested the 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 April 21, 1976, 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 April 21, 1976, 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. Retail Clerks Union, Local 1434, Retail Clerks In- ternational Association, AFL-CIO, is a labor organi- zation 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 con- stitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All nursing assistants, ward clerks, laundry, housekeeping, maintenance, kitchen and clerical employees employed by Respondent at its Reno, Nevada, facility, excluding all registered nurses, in-service instructors, guards and supervisors as defined in the Act. 2. The certification On June 12, 1975, 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 20, 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 14, 1976, and the Union continues to be such exclusive representative within the meaning of Section 9(a) 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, 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). 770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Sierra Pacific Hospitals, Inc., d/b/a Riverside Hospital for Extended Care, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Retail Clerks Union, Local 1434, Retail Clerks International Association, AFL-CIO, is a labor orga- nization within the meaning of Section 2(5) of the Act. 3. All nursing assistants, ward clerks, laundry, housekeeping, maintenance, kitchen and clerical em- ployees employed by Respondent at its Reno, Ne- vada, facility, excluding all registered nurses, in-ser- vice instructors, guards and supervisors as defined in the Act, constitute a unit appropriate for the pur- poses of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since January 14, 1976, 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 21, 1976, 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, Sierra Pacific Hospitals, Inc., d/b/a Riverside Hospital for Extended Care, Reno, Nevada, 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 Retail Clerks Union, Lo- cal 1434, Retail Clerks International Association, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All nursing assistants, ward clerks, laundry, housekeeping, maintenance, kitchen and clerical employees employed by Respondent at its Reno, Nevada, facility, excluding all registered nurses, in-service instructors, 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 Reno, Nevada, facility, copies of the attached notice marked "Appendix." I Copies of said notice, on forms provided by the Regional Director for Region 20, 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 no- tices to employees are customarily posted. Reason- able 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 20, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 5In 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 Retail RIVERSIDE HOSPITAL FOR EXTENDED CARE 771 Clerks Union, Local 1434, Retail Clerks Interna- tional Association , 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 em- ployment, and, if an understanding is reached, embody such understanding in a signed agree- ment . The bargaining unit is: All nursing assistants, ward clerks, laundry, housekeeping, maintenance , kitchen and cleri- cal employees employed by Respondent at its Reno, Nevada, facility, excluding all regis- tered nurses, in-service instructors, guards and supervisors as defined in the Act. SIERRA PACIFIC HOSPITALS , INC., d/b/a RIVERSIDE HOSPITAL FOR EXTENDED CARE