Health Care & Retirement Corporation of America (HCR) d/b/a Heartland of Clarksburg

HEARTLAND OF CLARKSBURG Health Care & Retirement Corporation of America (HCR) d/b/a Heartland of Clarksburg and In- ternational Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, Local 789. Case 6-CA-14865 April 23, 1982 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZIMMERMAN Upon a charge filed on September 4, 1981, by International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, Local 789, herein called the Union, and duly served on Health Care & Retirement Corporation of America (HCR) d/b/a Heartland of Clarksburg, herein called Respondent, the General Counsel of the National Labor Relations Board, by the Re- gional Director for Region 6, issued a complaint on September 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 pro- ceeding. With respect to the unfair labor practices, the complaint alleges in substance that on June 19, 1981, following a Board election in Case 6-RC- 8725, the Union was duly certified as the exclusive collective-bargaining representative of Respond- ent's employees in the unit found appropriate;' and that, commencing on or about August 18, 1981, 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 12, 1981, Respondent filed its answer to the complaint admit- ting in part, and denying in part, the allegations in the complaint. On January 25, 1982, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on February 2, 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- Official notice is taken of the record in the representation proceeding, Case 6-RC-8725, 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 Electrosystemsr 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); Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968); Sec. 9(d) of the NLRA, as amended. 261 NLRB No. 48 mary Judgment should not be granted. Respondent thereafter filed a memorandum in opposition to the Motion for Summary Judgment. 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 and memorandum in opposition to the Motion for Summary Judg- ment, Respondent admits that the Union has re- quested and that it has refused to bargain, but con- tends that the Union's certification is invalid be- cause the Board improperly overruled its objec- tions in the underlying representation proceeding. The General Counsel argues that Respondent is at- tempting to relitigate issues decided by the Board in the underlying representation case and that all material issues have been previously considered. We agree with the General Counsel. Our review of the record herein, including the record in Case 6-RC-8725, establishes that pursu- ant to a Stipulation for Certification Upon Consent Election, an election was conducted on May 8, 1980. The tally was 38 for and 30 against the Union, with no void or challenged ballots. Re- spondent timely filed objections to the conduct af- fecting the results of the election, alleging essential- ly that (1) the Union unlawfully agreed to waive initiation fees for all employees who supported the Union and unlawfully gave the impression that only members or supporters of the Union would not have to pay initiation fees and (2) prounion em- ployees made threats of discharge to fellow em- ployees. On June 30, 1980, after investigation, the Acting Regional Director for Region 6 issued a Report on Objection, Order Directing Hearing on Objection, and Notice of Hearing, in which he rec- ommended that Objection 2 relating to threats be overruled and ordered a hearing be held on the issues raised by Objection 1. On July 11, 1980, Re- spondent filed exceptions to the Acting Regional Director's report, and, on September 24, 1980, the Board adopted the Acting Regional Director's findings and recommendations, and ordered that a hearing be held. A hearing was held on October 28 and 29, 1980, and on January 29, 1981, the Hearing Officer issued her Report on Objections to Elec- tion, in which she recommended that the Board overrule Respondent's Objection I and that the Union be certified. On February 11, 1981, Re- spondent filed exceptions to the Hearing Officer's Report on Objections to Election. On June 19, 309 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1981, the Board issued its Decision and Certifica- tion of Representative, 2 in which it adopted the Hearing Officer's findings and recommendations and certified the Union. Subsequently, by letter dated July 20, 1981, the Union requested that Respondent meet for pur- poses of collective bargaining. Since August 18, 1981, Respondent has refused to bargain with the Union on the grounds that the Union was improp- erly certified. 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, an Ohio corporation, is engaged in the operation of a health care facility, more par- ticularly a nursing home, in Clarksburg, West Vir- ginia. During the 12-month period preceding the is- suance of the complaint, a representative period, Respondent, in the course and conduct of its oper- ations, received gross revenues in excess of $100,000, and purchased and received at its Clarks- burg facility goods and materials valued in excess of $50,000 from other enterprises located within the State of West Virginia, each of which enter- prises had received its said goods and materials di- rectly from points outside the State of West Vir- ginia. 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 a health care institution within the meaning of Sec- ' Not reported in volumes of NLRB decisions. 3 See Pittsburgh Plate Glass Ca v. N.LR.B., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c). tion 2(14) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, Local 789, 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 full-time and regular part-time service and maintenance employees employed by the Re- spondent at its Clarksburg, West Virginia nurs- ing home, including nursing assistants, order- lies, cooks, relief cooks, dietary assistants, ward clerks, housekeepers, laundry employees and maintenance employees; excluding all other employees, including registered nurses, licensed practical nurses, technical employees, social workers, activity coordinators, office clerical employees, medical record employees, confidential employees, managerial employees and guards, professional employees and super- visors as defined in the Act. 2. The certification On May 8, 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 6, 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 June 19, 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 July 20, 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 August 18, 1981, and continu- ing at all times thereafter to date, Respondent has 310 HEARTLAND OF CLARKSBURG refused, 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 August 18, 1981, 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. 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. Health Care & Retirement Corporation of America (HCR) d/b/a Heartland of Clarksburg is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and a health care institution within the meaning of Sec- tion 2(14) of the Act. 2. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, Local 789, is labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time service and maintenance employees employed by Respondent at its Clarksburg, West Virginia nursing home, in- cluding nursing assistants, orderlies, cooks, relief cooks, dietary assistants, ward clerks, housekeepers, laundry employees and maintenance employees; ex- cluding all other employees, including registered nurses, licensed practical nurses, technical employ- ees, social workers, activity coordinators, office clerical employees, medical record employees, con- fidential employees, managerial employees and guards, professional employees 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 June 19, 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 August 18, 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(aX1) 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, Health Care & Retirement Corporation of America (HCR) d/b/a Heartland of Clarksburg, Clarksburg, West Virginia, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: 311 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with International Brotherhood of Teamsters, Chauffeurs, Warehous- men and Helpers of America, Local 789, as the ex- clusive bargaining representative of its employees in the following appropriate unit: All full-time and regular part-time service and maintenance employees employed by the Re- spondent at its Clarksburg, West Virginia nurs- ing home, including nursing assistants, order- lies, cooks, relief cooks, dietary assistants, ward clerks, housekeepers, laundry employees and maintenance employees; excluding all other employees, including registered nurses, licensed practical nurses, technical employees, social workers, activity coordinators, office clerical employees, medical record employees, confidential employees, managerial employees and guards, professional employees and super- visors 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 its facility in Clarksburg, West Vir- ginia, copies of the attached notice marked "Ap- pendix."4 Copies of said notice, on forms provided by the Regional Director for Region 6, 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- 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." spondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 6, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 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 International Brotherhood of Teamsters, Chauffeurs, Warehousmen and Helpers of America, Local 789, as the exclusive repre- sentative 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 service and maintenance employees employed by the Employer at its Clarksburg, West Vir- ginia nursing home, including nursing assis- tants, orderlies, cooks, relief cooks, dietary assistants, ward clerks, housekeepers, laun- dry employees and maintenance employees; excluding all other employees, including registered nurses, licensed practical nurses, technical employees, social workers, activity coordinators, office clerical employees, medical record employees, confidential em- ployees, managerial employees and guards, professional employees and supervisors as defined in the Act. HEALTH CARE & RETIREMENT COR- PORATION OF AMERICA (HCR) D/B/A HEARTLAND OF CLARKSBURG 312