Nina Eaton Center

NINA EATON CENTER Nina Eaton Center, owned and operated by United Cerebral Palsy Association of New York State, Inc. and District 1199, Registered Nurses Divi- sion, National Union of Hospital and Health Care Employees, Retail, Wholsale, Department Store Union, AFL-CIO. Case 29-CA-8246 January 13, 1981 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO Upon a charge filed on August 21, 1980, by Dis- trict 1199, Registered Nurses Division, National Union of Hospital and Health Care Employees, Retail, Wholesale, Department Store Union, AFL- CIO, herein called the Union, and duly served on Nina Eaton Center, owned and operated by United Cerebral Palsy Association of New York State, Inc., herein called Respondent, the General Coun- sel of the National Labor Relations Board, by the Regional Director for Region 29, issued a com- plaint and notice of hearing on September 30, 1980, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor prac- tices 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 and 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 July 10, 1980, following a Board election in Case 29-RC- 4647, the Union was duly certified as the exclusive collective-bargaining representative of Respon- dent's employees in the unit found appropriate;' and that, commencing on or about July 17, 1980, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collec- tively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On October 7, 1980, Respondent filed its answer to the complaint admit- ting in part, and denying in part, the allegations in the complaint, submitting an affirmative defense, and requesting that the complaint be dismissed. On October 29, 1980, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on November I Official notice is taken of the record in the representation proceed- ing, Case 29-RC-4647, 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 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 (5th Cir. 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va. 1967); Follerr Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968); Sec. 9(d) of the NLRA, as amended. 254 NLRB No. 8 7, 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. Respondent filed an opposition to the Motion for Summary Judgment and a motion to dismiss the complaint. 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 Respondent's answer and its opposition to the Motion for Summary Judgment assert that the Cer- tification of Representative is valid and that it was therefore justified in refusing to bargain with the Union. Respondent contends that the unit is inap- propriate, that the unit includes statutory supervi- sors, that all of its objections should have been sus- tained or at least have gone to a hearing, and final- ly that it was denied due process by the Board's ex parte transference of this proceeding to itself. A review of the entire record, including that in Case 29-RC-4647, reveals that on September 14, 1979, the Regional Director issued a Decision and Direction of Election in which he directed an elec- tion among Respondent's registered nruses. On Oc- tober 12, an election was conducted and the ballots were impounded. Respondent filed seven objec- tions which, in substance, allege that (1) the Union threatened employees; (2) the Union made misrep- resentations; (3) the Board agent and the Union's observer engaged in misconduct which destroyed the laboratory conditions; and (4) supervisors par- ticipated in the election campaign, acted as the Union's observer, and voted in the election. Re- spondent's request for review of the Regional Di- rector's Decision and Direction of Election was denied by the Board by telegram dated December 26, 1979, and on January 4, 1980, the Regional Di- rector issued a revised tally of ballots wherein the five challenged ballots were found determinative. On April 8, 1980, the Regional Director issued a Supplemental Decision in which he directed that three of the challenged ballots be opened and counted, that a hearing be held on the two remain- ing challenges if they were still determinative, and that Respondent's objections be overruled in their entirety. Respondent requested review of the Re- gional Director's Supplemental Decision, contend- ing the Regional Director erred in overruling its objections. By telegram dated May 15, 1980, the Board denied the request for review. 67 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On April 16, 1980, the Regional Director issued a second revised tally of ballots, finding the two re- maining challenges still determinative. Subsequent- ly, the parties stipulated that these two challenges be upheld, and on July 10, 1980, the Regional Di- rector issued a Second Supplemental Decision, Third Revised Tally of Ballots, and Certification of Representative, finding that the Union had won the election and certifying the Union. 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. 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- 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. 3 On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent is a nonprofit New York corporation engaged in the business of providing health care services at 777 Seaview Avenue, Staten Island, New York. During a representative 12-month period, Respondent derived gross revenues in excess of $100,000 and purchased goods and ser- vices valued in excess of $50,000 from points locat- ed outside the State of New York. 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. 11. THE LABOR ORGANIZATION INVOLVED District 1199, Registered Nurses Division, Na- tional Union of Hospital and Health Care Employ- 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). 3 We find no merit in Respondent's contention that it was denied due process by our "ex parre" transference of this proceeding to the Board. This procedure is customary in summary judgment cases and is in accor- dance with Sec. 102.50 of our Rules and Regulations. ees, Retail, Wholesale, Department Store Union, AFL-CIO, is a labor organization within the mean- ing of Section 2(5) of the Act. III. 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: All professional registered nurses including acting charge nurses employed by Respondent at its center located at 777 Seaview Avenue, Building "D," Staten Island, New York, ex- cluding guards and supervisors as defined in the Act. 2. The certification On October 12, 1979, 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 29, 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 July 10, 1980, 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 July 14, 1980, and at all times thereafter, the Union has requested Re- spondent to bargain collectively with it as the ex- clusive collective-bargaining representative of all the employees in the above-described unit. Com- mencing on or about July 17, 1980, and continuing at all times thereafter to date, Respondent has re- fused, and continues to refuse, to recognize and bargain with the Union as the exclusive representa- tive for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since July 17, 1980, and at all times thereafter, refused to bargain collectively with the Union as the exclu- sive representative of the employees in the appro- priate 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. 68 NINA EATON CENTER 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, 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 shall 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 (10th Cir. 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Nina Eaton Center, owned and operated by United Cerebral Palsy Association of New York State, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. District 1199, Registered Nurses Division, Na- tional Union of Hospital and Health Care Employ- ees, Retail, Wholesale, Department Store Union, AFL-CIO, is a labor organization within the mean- ing of Section 2(5) of the Act. 3. All professional registered nurses, including acting charge nurses, employed by Respondent at its center located at 777 Seaview Avenue, Building "D," Staten Island, New York, excluding guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9(b) of the Act. 4. Since July 10, 1980, the above-named labor or- ganization has been and now is the certified and ex- clusive 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 July 17, 1980, 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 prac- tices 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, 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 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Nina Eaton Center, owned and operated by United Cerebral Palsy Association of New York State, Inc., Staten Island, New York, 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 District 1199, Reg- istered Nurses Division, National Union of Hospital and Health Care Employees, Retail, Wholesale, Department Store Union, AFL-CIO, as the exclu- sive bargaining representative of its employees in the following appropriate unit: All professional registered nurses including acting charge nurses employed by Respondent at its center located at 777 Seaview Avenue, Building "D," Staten Island, New York, ex- cluding guards and supervisors 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: 69 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (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 Staten Island, New York, facility copies of the attached notice marked "Appendix." 4 Copies of said notice, on forms provided by the Regional Director for Region 29, 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, de- faced, or covered by any other material. (c) Notify the Regional Director for Region 29, in writing, within 20 days from the date of this Order, what steps have been taken to comply here- with. 4 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 District 1199, Registered Nurses Divi- sion, National Union of Hospital and Health Care Employees, Retail, Wholesale, Depart- ment Store Union, 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 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 represen- tative 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 agreement. The bargaining unit is: All professional registered nurses including acting charge nurses employed by usat our center located at 777 Seaview Avenue, Building "D," Staten Island, New York, ex- cluding guards and supervisors as defined in the Act. NINA EATON CENTER, OWNED AND OPERATED BY UNITED CEREBRAL PALSY ASSOCIATION OF NEW YORK STATE, INC. 70