Franciscan Convalescent Hospital

510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Belcor, Inc., d/b/a Franciscan Convalescent Hospi- tal and Hospital & Institutional Workers Union, Local No. 250, Service Employees Inter- national Union, AFL-CIO. Case 32-CA-3153 June 12, 1981 DECISION AND ORDER Upon a charge filed on October 22, 1980, by Hospital & Institutional Workers Union, Local No. 250, Service Employees International Union, AFL- CIO, herein called the Union, and duly served on Belcor, Inc., d/b/a Franciscan Convalescent Hos- pital, herein called Respondent, the General Coun- sel of the National Labor Relations Board, by the Regional Director for Region 32, issued a com- plaint on October 27, 1980, against Respondent, al- leging that Respondent had engaged in and was en- gaging 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 Rela- tions Act, as amended. Copies of the charge and complaint and notice of hearing before an adminis- trative 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 September 22, 1980, following a Board election in Case 23- RC-795, the Union was duly certified as the exclu- sive collective-bargaining representative of Re- spondent's employees in the unit found appropri- ate;' and that, commencing on or about September 30, 1980, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bar- gain collectively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. Further, since on or about September 30, 1980, Respondent has failed and refused to supply information re- quested by the Union regarding, inter alia, names, rates of pay, and job classifications of unit employ- ees. On November 7, 1980, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. In essence, Respondent denies the appropriateness of the unit, that the Union is the exclusive representa- tive of the employees in the unit, that the specific information requested by the Union (e.g., names, rates of pay, and job classifications of the employ- ees in the unit) is necessary or relevant to the l Official notice is taken of the record in the representation proceed- ing, Case 32-RC-795, as the term "record" is defined in Sees 102.68 and 102.6 9 (g) of the Board's Rules and Regulations, Series . as amended See LTV Electrosystems, Inc., 166 NLRB 938 (1967). enfd. 388 F.2d 683 (4th Cir. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd 415 F.2d 26 (5th Cir. 1969); Interype Co. IPenello, 269 F Supp 573 (DC Va. 1967): Follerr Corp., 164 NLRB 378 (1967), cnfd 397 F 2d 91 (7th Cir. 1968); Sec. 9(d) of the NI.RA, as amended 256 NLRB No. 75 Union's performance of its function as the exclusive collective-bargaining representative of the employ- ees in the unit, and that it has failed and refused to bargain with the Union or that it has violated Sec- tion 8(a)(5) and (1) of the Act. Affirmatively, Re- spondent alleges that the certification issued by the Board was "faulty, void, invalid and contrary to law." On December 4, 1980, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on December 15, 1980, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Sum- mary Judgment should not be granted. Thereafter, on December 23, 1980, the Charging Party filed a joinder in Motion for Summary Judgment and re- quest for litigation expenses. On December 29, 1980, Respondent filed a response to the Notice To Show Cause, entitled "Opposition to General Counsel's Motion for Summary Judgment and Charging Party's Request for Litigation Expenses." Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment In its response to the Notice To Show Cause, Respondent alleges that the General Counsel's Motion for Summary Judgment is inappropriate in- asmuch as there are a number of substantial and factual issues which remain unresolved. 2 Specifical- ly, Respondent asserts that the underlying repre- sentation election did not constitute an accurate in- dication of employee preference as the employees were unlawfully influenced by alleged preelection conduct of union representatives and Board agents, and by certain allegedly improper acts committed by Board agents and union representatives during the election. Respondent also asserts that the Board Respondent states that the General Counsel failed to include with his Motion for Summary Judgment Respondent's request for review of the Regional Director's Supplemental Decision and Certification of Repre- sentative, as well as exhibits attached thereto. Respondent has requested that the Board order the Region to Furnish these documents so that the Board may make a proper resolution of the General Counsel's Motion for Summary Judgment As reference was made to Respondent's request for review in the Motion for Summary Judgment. the General Counsel should have included a copy of the request for review and attached ex- hibits. However, inasmuch as Respondent's request for review with at- tached exhibits previously had been filed with and considered by the Board as part of the record in Case 32 RC 795, and is presently availa- ble, we take administrative notice of it and make it part of the record in the instant case Further, Respondent states that, contrary to the General Counsel's assertions in his Motion for Summary Judgment, Respondent's answer to the complaint admitted that John Spittler was the administra- tor of the Hospital and a supervisor within the meaning of the Act only for the period ending Noember 29., 1979, and affirmatively alleged that John Sears was the administrator and a supervisor for the period begin- ning August tS, 1980, and continuing to date We have examined Re- spondenl's answer and note the accuracy of Respondent's statement above. FRANCISCAN CONVALESCENT HOSPITAL 511 has erroneously failed and refused to afford Re- spondent an evidentiary hearing in that the hearing held on its objections to the election was improper- ly limited in scope, and its objections were improp- erly overruled. Additionally, Respondent states that the election was not held in a unit appropriate for the purposes of collective bargaining. Finally, Respondent states that the Charging Party's request for litigation expenses should be denied as such an award would be erroneous under present Board law. Review of the record herein, including the record in Case 32-RC-795, reveals that, upon a pe- tition duly filed under Section 9(c) of the Act, a hearing was held before a hearing officer of the National Labor Relations Board. Thereafter, the Acting Regional Director issued a Decision and Direction of Election, wherein he found that the petitioned-for unit of all housekeeping department employees including housekeepers, maintenance, janitors, laundry workers; dietary department, in- cluding cooks, kitchen helpers; nursing department, including licensed vocational nurses, nurses aides/assistants, orderlies, certified nursing assis- tants, activities director and director of staff devel- opment, employed by the Employer at its Merced, California, facility; excluding registered nurses, office clerical employees, engineers, guards and su- pervisors as defined in the Act, constitute an ap- propriate unit for the purposes of collective bar- gaining. On October 30, 1979, the Respondent filed a request for review of the Acting Regional Direc- tor's Decision and Direction of Election in which Respondent alleged, inter alia, that its licensed practical nurses, activities director, and staff direc- tor of development should not be included in the unit because they are either supervisors, profession- al employees, managerial employees, or they lack a community of interest with other members of the unit found to be appropriate. By telegraphic order on November 16, 1979, the Board denied Respond- ent's request for review. On November 16, 1979, a secret-ballot election was held among employees in the aforementioned unit. The tally of ballots shows that the Union won the election. On November 23, 1979, Respondent filed timely objections to conduct affecting the re- sults of the election. After investigating the objec- tions, the Regional Director, on January 25, 1980, 3 issued his Supplemental Decision, Order, and Notice of Hearing, in which he directed a hearing on Respondent's objection alleging that the Union promised its supporters a reduction in initiation fees and those portions of objections which alleged that the Union made material misrepresentations con- 3 All dates hereinafter are in 1980 unless otherwise indicated cerning wage increases negotiated between the Union and five other facilities of the Employer. He recommended that Respondent's other objections be overruled in their entirety. On February 16 Re- spondent filed a request for review of the Regional Director's Supplemental Decision in which it con- tended that the Regional Director erred by failing to sustain or recommend a hearing on Respondent's objections concerning, inter alia, alleged deficien- cies in the Board's Notice of Election, alleged im- proper acts committed by Board agents and union representatives during the election, and alleged ma- terial misrepresentations made by union representa- tives shortly before the election. By telegraphic order of March 7 the Board denied Respondent's request for review. On April 21, a hearing was held on those objections which were not overruled by the Regional Director. On June 12 the Hearing Officer issued his Report on Objections in which he recommended that all the objections be over- ruled in their entirety. On July I Respondent filed with the Regional Director exceptions to the Hear- ing Officer's report and a supporting brief contend- ing, inter alia, that the Hearing Officer's recom- mendations were based on improper credibility res- olutions and incorrect applicad promised its sup- porters a reduction in initiation fees and those por- tions of objections which alleged that the Union made material misrepresentations concerning wage increases negotiated between the Union and five other facilities of the Employer. He recommended that Respondent's other objections be overruled in their entirety. On February 16 Respondent filed a request for review of the Regional Director's Sup- plemental Decision in which it contended that the Regional Director erred by failing to sustain or recommend a hearing on Respondent's objections concerning, inter alia, alleged deficiencies in the Board's Notice of Election, alleged improper acts committed by Board agents and union representa- tives during the election, and alleged material mis- representations made by union representatives shortly before the election. By telegraphic order of March 7 the Board denied Respondent's request for review. On April 21, a hearing was held on those objections which were not overruled by the Re- gional Director. On June 12 the Hearing Officer issued his Report on Objections in which he rec- ommended that all the objections be overruled in their entirety. On July 1 Respondent filed with the Regional Director exceptions to the Hearing Offi- cer's report and a supporting brief contending, inter alia, that the Hearing Officer's recommendations were based on improper credibility resolutions and incorrect application of Board law. On July 18, the Regional Director issued his Second Supplemental 512 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Decision and Certification of Representative, in which he adopted the Hearing Officer's recom- mended disposition of Respondent's objections. Thereafter, on August 11, Respondent filed a re- quest for review with the Board, essentially reiter- ating the arguments presented in its exceptions to the Hearing Officer's report. By telegraphic order of September 22 the Board denied Respondent's re- quest for review. It is well settled that in the absence of newly dis- covered or previously unavailable evidence or spe- cial circumstances a respondent in a proceeding al- leging 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.4 All issues raised by Respondent in this proceed- ing were or could have been litigated in the prior representation proceeding, and 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 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. Accordingly, we 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 Belcor, Inc., d/b/a Franciscan Con- valescent Hospital, a California corporation with an office and place of business in Merced, Califor- nia, has been engaged in the operation of a propri- etary convalescent hospital. During the past 12 months, Respondent, in the course and conduct of its business operations, derived gross revenues in excess of $100,000 and has received revenues in excess of $10,000 from Medi-Cal. 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 assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED Hospital & Institutional Workers Union, Local No. 250, Service Employees International Union, AFL-CIO, is a labor organization within the mean- ing of Section 2(5) of the Act. 4 See Pittsburgh Plare Glass Co. v. NL.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 I. The unit The following employees of Respondent consti- tute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All housekeeping department employees in- cluding housekeepers, maintenance, janitors, laundry workers; dietary department, includ- ing cooks, kitchen helpers; nursing department including licensed vocational nurses, nurses aides/assistants, orderlies, certified nursing as- sistants, activities directors, and director of staff development, employed by Respondent at its Merced, California facility; excluding regis- tered nurses, office clerical employees, engi- neers, guards, and supervisors as defined in the Act. 2. The certification On November 16, 1979, a majority of the em- ployees of Respondent in said unit, in a secret- ballot election conducted under the supervision of the Regional Director for Region 32 designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the collective-bar- gaining representative of the employees in said unit on September 22, 1980, and the Union continues to be such exclusive representative within the mean- ing of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about September 25, 1980, and at all times thereafter, the Union has requested Respondent to bargain collectively with it as the exclusive collective-bargaining representative of all the employees in the above-described unit. Com- mencing on or about September 30, 1980, and con- tinuing at all times thereafter to date, Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive repre- sentative for collective bargaining of all employees in said unit. Commencing on or about September 25, 1980, and at all times thereafter, the Union, by letter, has requested Respondent to furnish the Union with the name of each employee in the bargaining unit, with his or her address, telephone number, social security number, date of hire, rate of pay, classifi- cation, and marital or dependent status; copies of fringe benefit programs currently in effect for unit FRANCISCAN CONVALESCENT HOSPITAL 513 employees including copies of the policies, the policy booklets, if any, and the costs of the policies to the Company and/or the employee; copies of any personnel handbook given to employees; and copies of any written rules or regulations and/or policies or procedures, which are currently in effect governing the personnel relations in the bar- gaining unit. This information is necessary for and relevant to the Union's performance of its function as the exclusive collective-bargaining representative of the unit employees. Since on or about Septem- ber 30, 1980, Respondent has failed and refused to furnish the Union with the information described above. Accordingly, we find that Respondent has, since September 30, 1980, 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 has failed and refused to provide the Union with information requested which is rel- evant to the Union in its role as bargaining repre- sentative. By such refusals, Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and () 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 oper- ations described in section I, above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and ob- structing 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, supply the requested information and bargain collectively with the Union as the exclu- sive representative of all employees in the appro- priate unit and, if an understanding is reached, embody such understanding in a signed agree- ment. 5 In order to insure that the employees in the ap- propriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certi- s The Charging Party's request that Respondent be directed to reim- burse it for the expenses incurred in litigating this matter is denied as we do not find Respondent's defenses herein to be frivolous. See Monarch Federal Savings Loan Association, 241 NLRB 893 (1979), and cases cited therein. fication as beginning on the date Respondent com- mences to bargain in good faith with the Union as the recognized bargaining representative in the ap- propriate 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 (5th Cir. 1964), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Belcor, Inc., d/b/a Franciscan 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 No. 250, Service Employees International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All housekeeping department employees in- cluding housekeepers, maintenance, janitors, laun- dry workers; dietary department, including cooks, kitchen helpers; nursing department including li- censed vocational nurses, nurses aides/assistants, orderlies, certified nursing assistants, activities di- rectors, and director of staff development, em- ployed by Respondent at its Merced, California, fa- cility; excluding registered nurses, office clerical employees, engineers, 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. 4. Since September 22, 1980, 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 September 30, 1980, and at all times thereafter, to bargain collectively with the above-named labor organization as the ex- clusive bargaining representative of all the employ- ees of Respondent in the appropriate unit, and by refusing to furnish the Union with the information it requested in its letter of September 25, 1980, Re- spondent 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 refusals to bargain, Respond- ent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed them in Section 7 of the Act, and thereby has en- 514 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning 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 the Respondent, Belcor, Inc., d/b/a Franciscan Convalescent Hos- pital, Merced, California, its officers, agents, suc- cessors, 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 & Institu- tional Workers Union, Local No. 250, Service Em- ployees International Union, AFL-CIO, as the ex- clusive bargaining representative of its employees in the following appropriate unit: All housekeeping department employees in- cluding housekeepers, maintenance, janitors, laundry workers; dietary department, includ- ing cooks, kitchen helpers; nursing department, including licensed vocational nurses, nurses aides/assistants, orderlies, certified nursing as- sistants, activities directors, and director of staff development, employed by Respondent at its Merced, California facility; excluding regis- tered nurses, office clerical employees, engi- neers, guards, and supervisors as defined in the Act. (b) Refusing to supply the aforesaid labor organi- zation with information necessary for collective bargaining, including the names of each employee in the bargaining unit, with his or her address, tele- phone number, social security number, date of hire, rates of pay, classification, and marital status; copies of fringe benefit programs currently in effect for unit employees including copies of the policies, the policy booklets, if any, and the cost of the poli- cies to the Company and/or the employees; copies of any personnel handbook given to employees; and copies of any written rules or regulations and/or policies or procedures, which are currently in effect governing the personnel relations in the bargaining unit. (c) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise 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 understanding is reached, embody such under- standing in a signed agreement. (b) Upon request supply the above-named labor organization with information necessary for collec- tive bargaining, including the names of each em- ployee in the bargaining unit, with his or her ad- dress, telephone number, social security number, date of hire, rates of pay, classification, and marital status; copies of fringe benefit programs currently in effect for unit employees including copies of the policies, the policy booklets, if any, and the cost of the policies to the Company and/or the employees; copies of any personnel handbook given to employ- ees; and copies of any written rules or regulations and/or policies or procedures, which are currently in effect governing the personnel relations in the bargaining unit. (c) Post at its office and place of business at 3169 "M" Street, Merced, California, copies of the at- tached notice marked "Appendix."6 Copies of said notice, on forms provided by the Regional Direc- tor for Region 32, after being duly signed by Re- spondent'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 notices to employees are customarily posted. Rea- sonable 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 32, in writing, within 20 days from the date of this Order, what steps have been taken to comply here- with. 6 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 Pursu- ant 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 Hospital & Institutional Workers Union, FRANCISCAN CONVALESCENT HOSPITAL 515 Local No. 250, Service Employees Interna- tional Union, AFL-CIO, as the exclusive rep- resentative of the employees in the bargaining unit described below. WE WILL NOT refuse to supply the above- named Union with information necessary for collective bargaining, including the names of each employee in the bargaining unit, with his or her address, telephone number, social secu- rity number, date of hire, rates of pay, classifi- cation, and marital status; copies of fringe benefit programs currently in effect for unit employees including copies of the policies to the Company and/or the employees; copies of any personnel handbook given to employees; and copies of any written rules or regulations and/or policies or procedures, which are cur- rently in effect governing the personnel rela- tions in the bargaining unit. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees 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 repre- sentative of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours, and other terms and condi- tions of employment and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All housekeeping department employees in- cluding housekeepers, maintenance, janitors, laundry workers; dietary department, includ- ing cooks, kitchen helpers; nursing depart- ment including licensed vocational nurses, nurses aides/assistants, orderlies, certified nursing assistants, activities directors, and di- rector of staff development, employed by Respondent at its Merced, California facili- ty; excluding registered nurses, office cleri- cal employees, engineers, guards, and super- visors as defined in the Act. WE WILL, upon request, supply the above- named Union with information necessary for collective bargaining, including the names of each employee in the bargaining unit, with his or her address, telephone number, social secu- rity number, date of hire, rates of pay, classifi- cation, and marital status; copies of fringe benefit programs currently in effect for unit employees including copies of the policies, the policy booklets, if any, and the cost of the policies to the Company and/or the employ- ees; copies of any personnel handbook given to employees, and copies of any written rules or regulations and/or policies or procedures, which are currently in effect governing the personnel relations in the bargaining unit. BELCOR, INC., D/B/A FRANCISCAN CONVALESCENT HOSPITAL