Highland Nursing Home

152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Highland Nursing Home and Warehouse, Mail Order, Office, Technical and Professional Em· ployees Union, Local 743, International Broth- erhood of Teamsters, Chauffeurs, Warehouse· men and Helpers of America. Case 13-CA- 20838 July 23, 1981 DECISION AND ORDER Upon a charge filed on February 17, 1981, by Warehouse, Mail Order, Office, Technical and Pro- fessional Employees Union, Local 743, Internation- al Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, herein called the Union, and duly served on Highland Nursing Home, herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 13, issued a com- plaint on March 17, 1981, 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 the complaint and notice of hearing before an ad- ministrative Jaw judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint a11eges in substance that on September 2, 1980, fo11owing a Board election in Case 13-RC- 15460, the Union was duly certified as the exclu- sive collective-bargaining representative of Re- spondent's employees in the unit found appropri- ate; 1 and that, commencing on or about October 18, 1980, and at aU times thereafter, Respondent has refused, and continues to date to refuse, to bar- gain co11ectively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On April 9, 1981, Respondent filed its answer to the complaint admitting in part, and denying in part, the a11ega- tions in the complaint. On May 12, 1981, counsel for the General Coun- sel filed directly with the Board a Motion for Sum- mary Judgment. Subsequently, on May 18, 1981, the Board issued an order transferring the proceed- ing to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respondent 1 Official notice is taken of the record in the representation proceed- ing, Case 13-RC-15460, as the term "record" is defined in Sees. 102.68 and 102.69(g) of the Board's Rules and Regulations, Series 8, as amended. See LTV Electrosysrems. 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 (~th Cir. 1969); lntertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va. 1967); Follett Corp .. 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968); Sec. 9(d) of the NLRA, as amended. 257 NLRB No. 36 thereafter filed a response to the Notice To Show Cause entitled "Memorandum in Opposition to Motion for Summary Judgment." Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment In its answer to the Notice To Show Cause Re- spondent repeats its contention, first raised in the representation proceeding, that the Regional Direc- tor's refusal to consider its untimely filed objec- tions to the election was unreasonable. While not disputing that its objections had been untimely filed, Respondent argues that, since the Regional Director had not yet dosed his post-election inves- tigation when the objections were received, the Regional Director should have considered them. The General Counsel argues that all material issues have been previously presented to, and de- cided by, the Board and that there are no litigable issues of fact requiring a hearing. We agree with the General Counsel. Our review of the record herein, incJuding the record in Case 13-R C-1 5460, discloses that the Re- gional Director for Region 13 approved a Stipula- tion for Certification Upon Consent Election on May 9, 1980. Pursuant to that stipulation an elec- tion was conducted on May 30, 1980. The tally of baJlots showed four votes cast for, and none against, the Union, with four challenged ballots. The Union filed timely objections to conduct af- fecting the results of the election. Respondent filed untimely objections to the election. On June 27, 1980, the Regional Director for Region 1 3 issued a report on challenged ballots and objections in which he overruled Respondent's objections as un- timely, sustained one challenged baJJot, and, since the remaining ballots were no longer determinative, found it unnecessary to pass on the Union's objec- tions. The Regional Director recommended that the Union be certified as the coJJective-bargaining representative of the unit stipulated as appropriate. Respondent filed timely exceptions to the Re- gional Director's report. The Board, on September 2, 1980, issued a Decision and Certification of Rep- resentative adopting the Regional Director's find- ings and recommendations and certifying the Union as the exclusive bargaining representative of all em- ployees in the stipulated appropriate unit. 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 HIGHLAND NURSING HOME !53 1< 1 relitigate issues which were or could have been litigated in a prior representation proceeding. 2 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- L:red 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 1 herefore 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 l. THE BUSINESS OF RESPONDENT Respondent is now, and has been at all times ma- terial herein, an Indiana corporation engaged in the health care business of operating a nursing home. During the past calendar year, a representative period, Respondent received gross revenues in excess of $100,000. Respondent also purchased and received goods and materials valued in excess of $5,000 directly from points outside the State of In- diana. 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 A~t to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED Warehouse, Mail Order, Office, Technical and Professional Employees Union, Local 743 Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. IlL THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. 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: 2 See Pittsburgh Plate Glass Co. v. N.LR.B., 3D U.S. 146, 162 (1941)· Rules and Regulations of rhe Board. Sees. 102.67(1) and l02.69(c). · All full-time and regular part-time employees including assistant charge aides, nurse's aides, cooks, housekeepers and launderers employed at the Employer's facility now located at 9630 Fifth Street, Highland, Indiana; but excluding registered nurses, licensed practical nurses, charge aide-second shift, charge aide-third shift, activity and social director, food service supervisor, relief health services supervisor, office clerical employees, guards and supervi- sors as defined in the Act. 2. The certification On May 30, 1980, 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 13, 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 2, 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 October 17, 1980, and at all times thereafter, and again on January 5, 1981, and continuing to date, the Union has re- quested Respondent to bargain collectively with it as the exclusive collective-bargaining representative of all the employees in the above-described unit. Commencing on or about October 18, 1980, and continuing at all times thereafter to date, Respond- ent has refused, and continues to refuse, to recog- nize and bargain with the Union as the exclusive representative for collective bargaining of all em- ployees in said unit. Accordingly, we find that Respondent has, since October 18, 1980, and at all times thereafter, re- fused to bargain collectively with the Union as the exclu~ive reJ::resentative of the employees in the ap- propnate umt, and that, by such refusal, Respond- ent 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 II~, above, occurring in connection with its oper- ~tt?ns described in section I, above, have a close, mumate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and ob- 154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 (l) 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 ap- propriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we sha11 construe the initial period of certi- 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 (lOth Cir. 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the fo11owing: CoNCLUSIONs oF LAw I. Highland Nursing Home is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Warehouse, Mail Order, Office, Technical and Professional Employees Union, Local 743, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. All fu11-time and regular part-time employees including assistant charge aides, nurse's aides, cooks, housekeepers, and launderers employed at the Employer's facility now located at 9630 Fifth Street, Highland, Indiana, but excluding registered nurses, licensed practical nurses, charge aide- second shift, charge aide-third shift, activity and social director, food service supervisor, relief health services supervisor, office clerical employ- ees, 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 2, 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 October 18, 1980, and at all times thereafter, to bargain co11ectively with the above-named labor organization as the exclu- sive bargaining representative of a11 the employees of Respondent in the appropriate unit, Respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal 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- gaged 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 meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section lO(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Highland Nursing Home, Highland, Indiana, its of- ficers, agents, successors, and assigns, shall: l. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Warehouse, Mail Order, Office, Technical and Professional Employ- ees Union, Local 743, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive bargaining representa- tive of its employees in the fo11owing appropriate unit: All full-time and regular part-time employees including assistant charge aides, nurse's aide, cooks, housekeepers and launderers employed at the Employer's facility now located at 9630 Fifth Street, Highland, Indiana; but excluding registered nurses, licensed practical nurses, charge aide-second shift, charge aide-third shift, activity and social director, food service supervisor, relief health services supervisor, office clerical employees, guards and supervi- sors as defined in the Act. (b) 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: HIGHLAND NURSING HOME 155 (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) Post at its 9630 Fifth Avenue, Highland, Indi- ana, facility copies of the attached notice marked "Appendix."3 Copies of said notice, on forms pro- vided by the Regional Director for Region 13, 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. (c) Notify the Regional Director for Region 13, in writing, within 20 days from the date of this Order, what steps have been taken to comply here- with. 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 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 Warehouse, Mail Order, Office, Techni- cal and Professional Employees Union, Local 743, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, 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 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 full-time and regular part-time employ- ees including assistant charge aides, nurse's aides, cooks, housekeepers and launderers employed at our facility now located at 9630 Fifth Street, Highland, Indiana; but exclud- ing registered nurses, licensed practical nurses, charge aide-second shift, charge aide-third shift, activity and social director, food service supervisor, relief health serv- ices supervisor, office clerical employees, guards and supervisors as defined in the Act. HIGHLAND NURSING HOME