Rehabilitation Nursing Specialists and Associates, Incorporated

REHABILITATION NURSING SPECIALISTS Rehabilitation Nursing Specialisits and Associates, Incorporated and United Service Employees, Local 616, Service Employees International Union, AFL-CIO. Case 32-CA-4021 April 13, 1982 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZIMMERMAN Upon a charge filed on October 29, 1981, and amended November 19, 1981, by United Service Employees, Local 616, Service Employees Interna- tional Union, AFL-CIO, herein called the Union, and duly served on Rehabilitation Nursing Special- ists and Associates, Incorporated, herein called Re- spondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 32, issued a complaint on November 30, 1981, 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 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 October 9, 1981, following a Board election in Case 32-RC- 1322, the Union was duly certified as the exclusive collective-bargaining representative of Respond- ent's employees in a certain unit found appropri- ate;' and that, commencing on or about October 21, 1981, 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. On Decem- ber 10, 1981, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On December 29, 1981, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on January 7, 1982, 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 Official notice is taken of the record in the representation proceeding, Case 32-RC-1322, 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 Electrosystrems Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (4th Cir. 1968); Golden Age Beverage Ca, 167 NLRB 151 (1967), enfd. 415 F.2d 26 (5th Cir. 1969); Intertype Ca v. Penello, 269 F.Supp. 573 (D.C.Va. 1967); Folleft Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968); Sec. 9(d) of the NLRA, as amended. 261 NLRB No. 23 thereafter filed a response to the Notice To Show Cause. 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, Respondent denies the conclusion that Respondent is an em- ployer engaged in interstate commerce. It also denies that (a) the complaint unit is appropriate, (b) the Union was certified as the exclusive collective- bargaining representative of the employees in said unit in Case 32-RC-1322, (c) pursuant to Section 9(a) of the Act, since July 15, 1981, the Union has been the collective-bargaining representative of the employees in that unit, and (d) its conduct has vio- lated Section 8(a)(5) and (1) of the Act. Respond- ent's answer also contains an affirmative defense that the Certification of Representative issued in Case 32-RC-1322 is defective because it is based on an erroneous denial of its objections to conduct affecting the election in Case 32-RC-1322. In its response to the Notice To Show Cause, Respond- ent reiterates the affirmative defense proffered in its answer. The General Counsel asserts that Respond- ent seeks to relitigate issues that were raised and decided in the representation case. We agree with the General Counsel. Although Respondent's answer denies the Gen- eral Counsel's allegation that it is an employer en- gaged in interstate commerce, it admits it is en- gaged in the business of providing rehabilitation and other health care services, and in the last fiscal year ending June 30, 1980, derived revenues in excess of $100,000, approximately $90,000 of which was received from the Federal Government through the Medicare program. Our review of the record, including the record in Case 32-RC-1322, shows that the Board considered and rejected Re- spondent's arguments in support of its contention that it is not an employer engaged in interstate commerce. Further, notwithstanding Respondent's other denials delineated above, our review of the record shows that the Union filed a petition under Section 9(c) of the National Labor Relations Act, as amended, seeking to represent certain of Re- spondent's employees, at its place of business in Oakland, California. On April 22, 1981, the Re- gional Director for Region 32 of the National Labor Relations Board issued a Decision and Di- rection of Election in Case 32-RC-1322, in which he directed elections be conducted in three units, 147 DECISIONS OF NATIONAL LABOR RELATIONS BOARD units A, B, and C. Respondent filed with the Board a request for review of the Decision and Direction of Election, which the Board denied on May 27, 1981. The elections were held on May 21, 1981, and the ballots were impounded (pending the Board's decision on the Respondent's request for review.) Subsequently, the ballots were opened, counted, and tallied. The tally of ballots shows that in unit A, consisting of approximately 15 eligible professional employees, 8 cast ballots for inclusion and 6 against inclusion with the nonprofessional employees in unit B for a single unit for purposes of collective bargaining. In unit A, there was one challenged ballot which was not determinative of the election results. The tally of ballots for units A and B together2 shows that, of approximately 21 eligible voters, I 11 cast ballots for, and 8 cast ballots against, representation by the Union. There were two challenged ballots which were not determina- tive of the election results. The tally of ballots for unit C, Respondent's office clerical employees, shows that, of approximately three eligible voters, one cast a ballot for, and two cast ballots against, representation by the Union. There were no chal- lenged ballots. On June 9, 1981, Respondent filed timely objec- tions to conduct affecting the results of the election in Case 32-RC-1322. On July 15, 1981, following an investigation of Respondent's objections, the Re- gional Director issued a Report on Objections (overruling the objections) and Certification of Representative (with respect to unit A and B) and Certification of Results of Election (with respect to unit C). On July 27, 1981, Respondent filed with the Board exceptions to the Regional Director's Report on Objections and Certification of Repre- sentative and Certification of Results of Election. On October 9, 1981, the Board issued its Decision and Certification of Representative and Certifica- tion of Results, in which it adopted the Regional Director's recommended disposition of Respond- ent's objections, certified the Union as the exclu- sive collective-bargaining representative of Re- spondent's employees in unit A and B, and certified the results of the election in unit C. Commencing on or about October 15, 1981, and continuing thereafter, the Union requested that Respondent meet with it as the exclusive representative of the employees in unit A and B for the purpose of bar- gaining collectively with respect to rates of pay, ' As combined, the appropriate unit is: All full-time and regular part- time home health aides, registered nurses, public health nurses. rehabilita- tion nursing specialists, speech therapists, medical social workers, occupa- tional therapists, and physical therapists, including contractors, and em- ployed by the Employer out of its 2929 Summit Street, Oakland, Califor- nia facility, excluding office clerical employees, guards and supervisors as defined in the Act. Hereafter, this unit is at times referred to as unit A and B. wages, hours of employment, and other terms and conditions of employment. Commencing on or about October 21, 1981, Respondent failed and re- fused, and continues to fail and refuse, to recognize or bargain with the Union as the exclusive repre- sentative of the employees in unit A and B. It thus appears that Respondent is attempting to raise issues that were raised in the underlying rep- resentation case. 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.3 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, a California corporation, with a place of business in Oakland, California, is a non- profit, charitable organization which provides spe- cialized rehabilitation and other health care serv- ices for patients in their own homes. During the last fiscal year ending June 30, 1980, Respondent derived revenues in excess of $100,000, approxi- mately $90,000 of which was received from the Federal Government through the Medicare pro- gram. 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 United Service Employees, Local 616, Service Employees International Union, AFL-CIO, is a ' See Pittsburgh Plate Glass Co. v. N.LRB., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c). 148 REHABILITATION NURSING SPECIALISTS labor organization 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 Respondent consti- tute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All full-time and regular part-time home health aides, registered nurses, public health nurses, rehabilitation nursing specialists, speech thera- pists, medical social workers, occupational therapists and physical therapists, including contractors, and employed by the Employer out of its 2929 Summit Street, Oakland, Cali- fornia facility; excluding office clerical em- ployees, guards and supervisors as defined in the Act. 2. The certification On May 21, 1981, 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 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 October 9, 1981, 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 October 15, 1981, 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 October 21, 1981, 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. Accordingly, we find that Respondent has, since and at all times thereafter, refused to bargain col- lectively with the Union as the exclusive repre- sentative of the employees in the appropriate unit, and that, by such refusal, Respondent 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 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. Rehabilitation Nursing Specialists and Asso- ciates, Incorporated, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Service Employees, Local 616, 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 home health aides, registered nurses, public health nurses, rehabilitation nursing specialists, speech therapists, medical social workers, occupational therapists and physical therapists, including contractors, and em- ployed by the Employer out of its 2929 Summit Street, Oakland, California facility; excluding office clerical employees, guards and supervisors as de- fined in the Act, constitute a unit appropriate for 149 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since October 9, 1981, 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 21, 1981, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclu- sive 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, 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)(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, Rehabilitation Nursing Specialists and Associates, Incorporated, Oakland, California, 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 United Service Employees, Local 616, Service Employees Interna- tional Union, AFL-CIO, as the exclusive bargain- ing representative of its employees in the following appropriate unit: All full-time and regular part-time home health aides, registered nurses, public health nurses, rehabilitation nursing specialists, speech thera- pists, medical social workers, occupational therapists and physical therapists, including contractors, and employed by the Employer out of its 2929 Summit Street, Oakland, Cali- fornia facility; excluding office clerical em- ployees, 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: (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 2929 Summit Street, Oakland, Califor- nia, copies of the attached notice marked "Appen- dix."' Copies of said notice, on forms provided by the Regional Director for Region 32, 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 Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. (c) 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. ' 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 United Service Employees, Local 616, Service Employees International Union, AFL- CIO, as the exclusive representative of the em- ployees 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 150 REHABILITATION NURSING SPECIALISTS is reached, embody such understanding in a signed agreement. The bargaining unit is: All full-time and regular part-time home health aides, registered nurses, public health nurses, rehabilitation nursing specialists, speech therapists, medical social workers, occupational therapists and physical thera- pists, including contractors, and employed by the Employer out of its 2929 Summit Street, Oakland, California facility; exclud- ing office clerical employees, guards and su- pervisors as defined in the Act. REHABILITATION NURSING SPECIAL- ISTS AND ASSOCIATES, INCORPORAT- ED 151