Convalescent West

736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Louisiana Corporation, Inc. d/b/a Convalescent West and Hospital and Institutional Workers Local 250, Service Employees International Union, AFL- CIO. Case 20-CA-11949 March 16, 1977 DECISION AND ORDER By CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS Upon a charge filed on September 22, 1976, by Hospital and Institutional Workers Local 250, Service Employees International Union, AFL-CIO, herein called the Union, and duly served on Louisiana Corporation, Inc. d/b/a Convalescent West, herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 20, issued a complaint and notice of hearing on October 28, 1976, 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 pasties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that on July 22, 1976, following a Board election in Case 20-RC-12272, 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 August 19, 1976, 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 November 9, 1976, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On November 26, 1976, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on December 9, 1976, 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. Respon- i Official notice is taken of the record in the representation proceeding Case 20-RC-12272, 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 Eleclrosyslems, 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), Iniertype Co v. Penello, 269 F. Supp. 573 (D.C Va, 1967); Follett Corp, 164 NLRB 378 (1967), enfd. 397 F2d 91 (C.A. 7, 1968), Sec. 9(d) of the NLRA, as amended. dent thereafter filed a response to Notice To Show Cause entitled `Respondent's Answer to Notice To Show Cause and Request for Oral Argument." 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,2 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, in substance, denies the validity of the Union's majority status and certification and asserts that it was denied due process in that it was not afforded a hearing on certain of its objections to the election in the underlying representation case. The General Counsel contends that there are no disputed issues of fact requiring a hearing in this proceeding. We agree. Review of the entire record, including that in Case 20-RC-12272, discloses that pursuant to a Stipula- tion for Certification Upon Consent Election, an election was held on November 7, 1974, among Respondent's employees in a bargaining unit of health care employees referred to as "Unit B."3 The Union prevailed 14 to 8. Respondent filed timely objections to conduct affecting the results of the election alleging, in substance, (1) that the Union (a) made material misrepresentations of fact and law to the employees; (b) made threats of personal injury against the employees if they did not vote for the Union; (c) made promises of benefits to employees; (d) offered to waive union initiation fees; (e) permitted overt acts of violence, intimidation, and property damage which interfered with the fair conduct of the election; (f) interrogated employees regarding their election preferences; and (g) cam- paigned and electioneered through supervisors and/or management personnel; and (2) that the Board failed to insure that employees voted only once and failed to safeguard the integrity of the election and the balloting process. Upon investigation, the Acting Regional Director issued on April 28, 1975, a report on challenged ballots and objections, order consolidating cases, and notice of hearing which, inter alia, recommended overruling all Respondent's objections except with regard to the waiver of initiation fees and ordered a 2 Respondent's request for oral argument is hereby denied as the submissions of the General Counsel and Respondent adequately present the positions of the parties. 3 Similar elections were held among health care employees of the Spring Road Corporation, Inc. d/b/a Convalescent East and the Heartwood Avenue Corporation d/b/a The Heartwood located m Vallejo, California. These bargaining units were referred to as "Unit A" and "Unit C," respectively. 228 NLRB No. 81 CONVALESCENT WEST 737 hearing, consolidated with the hearing in Case 20- CA-9799, to be held thereon before an Administra- tive Law Judge. Respondent subsequently filed timely exceptions with the Board alleging that 11 of its objections were erroneously overruled without a hearing on the substantial and material issues raised thereby. On November 12, 1975, the Board issued a Decision and Order (221 NLRB 608) adopting the Acting Regional Director's report and directing, inter alia, that a hearing be held only on Respondent's objection concerning the waiver of union initiation fees. After the hearing, the Administrative Law Judge issued a Decision on April 9, 1976, recom- mending to the Board that the Respondent's objec- tions be overruled and that the Union be certified in Unit B. Respondent filed exceptions, with a brief, to the Administrative Law Judge's Decision, reiterating its waiver of initiation fees objection. The Board issued a Decision, Order, Certification, and Direc- tion of Second Election on July 22, 1976, which, inter alia, overruled Respondent's exceptions and certified the Union in Unit B (225 NLRB 719). It thus appears that Respondent is raising issues which have been considered and resolved in the underlying representation case. Respondent con- tends in its response to Notice To Show Cause that the failure to hold a hearing on its other objections constitutes a denial of due process. We find no merit in his contention. In footnote 2 of its Decision and Order of November 12, 1975, the Board, in adopting the Acting Regional Director's recommendation for a hearing only as to Respondent's objection concern- ing the waiver of union initiation fees, specifically found that "the Employer's exceptions in our opinion raise no issue which would warrant reversal of the Acting Regional Director's findings, conclusions, and recommendations." In so doing, the Board necessarily found that there were no substantial and material issues warranting a hearing. To be entitled to a hearing Respondent must raise substantial or material issues which would warrant setting aside the election.4 This qualified right to a hearing satisfies all statutory and constitutional requirements of due process.5 As Respondent here did not satisfy the qualifications for a hearing in that it failed to raise substantial or material issues in the representation case below, it has not been denied due process by the Board's failure to grant a hearing on those issues.6 4 N L.R B v Modme Manufacturing Co, 500 F 2d 914, 916 (C A. 8, 1974), enfg 203 NLRB 527 (1973) Allied Meat Company, 220 NLRB 27 (1975); Amalgamated Clothing Workers of America [Winfield Manufacturing Company] v N L.R B, 424 F 2d 818, 828 (C A D C., 1970) " CSC Oil Company, 220 NLRB 19 ( 1975), Big Three Industries, Inc, Formerly, Big Three Industrial Gas & Equipment Co, 214 NLRB 580 (1974), Raub Supply Company, 215 NLRB 830 (1974) 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 to relitigate issues which were or could have been litigated in a prior representation proceeding.? 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, 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.8 On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent is now, and has been at all times material herein, a corporation doing business in the State of California, with an office and place of business at Vallejo, California, where it is engaged in the operation of a skilled nursing facility in the health care industry. Respondent, in the normal course and conduct of its business operations, had gross revenues in excess of $100,000 during the calendar year 1974 and received in excess of $5,000 from the State of California Medi-Cal program during that time. 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 Local 250, Service Employees International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 7 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). 9 The granting of the General Counsel's Motion for Summary Judgment is appropriate in those cases where , as here, the issues raised have been previously considered and there are no other substantial and material issues of fact warranting a hearing Madisonville Concrete Co a Division of Corum & Edwards, Inc, 220 NLRB 668 (1975), Wells Fargo Alarm Services, A Division of Baker Industries, Inc, 218 NLRB 68 (1975). 738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. 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 full-time and regular part-time nursing department, housekeeping department and di- etary department employees employed by Louisi- ana Corporation, Inc. d/b/a Convalescent West, at its facility located in Vallejo, California, including licensed vocational nurses, nurses aides, house- keepers, janitors, cooks, dietary aides, laundry workers and maintenance employees; excluding registered nurses, office clerical employees, guards 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. 2. The certification On November 7, 1974, a majority of the employees 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 bargain- ing with Respondent. The Union was certified as the collective-bargaining representative of the employees in said unit on July 22, 1976, 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 August 10, 1976, 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 August 19, 1976, 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 August 19, 1976, 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, Respon- dent has engaged in and is engaging in unfair labor practices 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 opera- tions described in section I, 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. 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 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); 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 1. Louisiana Corporation, Inc. d/b/a Convales- cent West is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Hospital and Institutional Workers Local 250, Service Employees International 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 nursing department, housekeeping department and dietary department employees employed by Louisiana Cor- poration, Inc. d/b/a Convalescent West, at its facility located in Vallejo, California, including licensed vocational nurses, nurses aides, housekeepers, jani- tors, cooks, dietary aides, laundry workers and maintenance employees; excluding registered nurses, office clerical employees, guards and supervisors as defined in the Act, constitute a unit appropriate for CONVALESCENT WEST 739 the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since July 22, 1976, 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 purpose of collec- tive bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about August 19, 1976, 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 the aforesaid refusal to bargain, Respon- dent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employ- ees 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. 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 (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 Vallejo, California, skilled nursing facility copies of the attached notice marked "Ap- pendix."9 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 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, 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. Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Louisiana Corporation , Inc. d/b/a Convalescent West, Vallejo, California, its officers, agents, succes- sors, 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 Local 250, Service Employees Inter- national Union , AFL-CIO, as the exclusive bargain- ing representative of its employees in the following appropriate unit: All full-time and regular part -time nursing department , housekeeping department and di- etary department employees employed by Louisi- ana Corporation, Inc. d/b/a Convalescent West, at its facility located in Vallejo , California, including licensed vocational nurses, nurses aides, house- keepers, janitors, cooks , dietary aides, laundry workers and maintenance employees ; excluding registered nurses, office clerical employees, guards 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. 9 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 Local 250, Service Employees International Union, AFL-CIO, 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 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, 740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD embody such understanding in a signed agree- ment. The bargaining unit is: All full-time and regular part-time nurs- ing department, housekeeping department and dietary department employees em- ployed by Louisiana Corporation, Inc. d/b/a Convalescent West, at its facility located in Vallejo, California, including licensed voca- tional nurses, nurses aides, housekeepers, janitors, cooks, dietary aides, laundry work- ers and maintenance employees ; excluding registered nurses, office clerical employees, guards and supervisors as defined in the Act, constitute a unit appropriate for the purpos- es of collective bargaining within the mean- ing of Section 9(b) of the Act. LOUISIANA CORPORATION, INC. D/B/A CONVALESCENT WEST