Frostburg Village of Allegany County

FROSTBURG VILLAGE OF ALLEGANY COUNTY Tressler Lutheran Home for Children t/a Frostburg Village of Allegany County Nursing Home and Retail Store Employees Union, Local 692, United Food and Commercial Workers Interna- tional Union, AFL-CIO, CLC. Case 5-CA- 12306 January 14, 1981 DECISION AND ORDER Upon a charge filed on June 13, 1980, by Retail Store Employees Union, Local 692, United Food and Commercial Workers International Union, AFL-CIO, CLC, herein called the Union, and duly served on Tressler Lutheran Home for Chil- dren t/a Frostburg Village of Allegany County Nursing Home, herein called Respondent, the Gen- eral Counsel of the National Labor Relations Board, by the Regional Director for Region 5, issued a complaint on July 11, 1980, against Re- spondent, 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 the 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 April 15, 1980, following a Board election in Case 5-RC- 11044, the Union was duly certified as the exclu- sive collective-bargaining representative of a unit of Respondent's service and maintenance employ- ees; and that, commencing on or about June 9, 1980, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bar- gaining representative, although the Union has re- quested and is requesting it to do so. On July 18, 1980, Respondent filed its answer to the complaint admitting in part, and denying in part, the allega- tions in the complaint. On September 12, 1980, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment, with exhibits attached. Subse- quently, on September 22, 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 Summary Judgment should not be granted. Respondent thereafter filed a re- sponse to Notice To Show Cause. On October 27, 1980, counsel for the General Counsel filed directly with the Board a Motion To Amend Complaint and Motion for Summary Judgment in which he moved that the complaint be amended to allege, inter alia, that on August 26, 1980, following a 254 NLRB No. 15 Board-conducted election in Case 5-RC-11204, the Union's certification was amended to include Re- spondent's technical employees including licensed practical nurses.' Copies of the motion to amend were duly served on the parties to this proceed- ing. 2 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 response to the Notice To Show Cause, Respondent admits that it refused to meet and bar- gain with the Union. In support of its refusal to bargain, Respondent attacks the Union's certifica- tion on the grounds that the Board's exercise of ju- risdiction over Respondent in the underlying repre- sentation proceeding was improper and that the Regional Director erred in overruling its objections to the election in the underlying representation proceeding in Case 5-RC-1 1044. Review of the record herein, including the re- cords in Cases 5-RC-11044 and 5-RC-11204, re- veals that after a hearing in Case 5-RC-11044, the Regional Director for Region 5, on December 13, 1979, issued a Decision and Direction of Election finding, inter alia, that the Board would not refuse to assert jurisdiction over Respondent because of its affiliation with the Lutheran Church of Amer- ica. Thereafter, Respondent filed with the Board timely request for review of the Regional Direc- tor's Decision in which it reiterated the arguments previously rejected by the Regional Director that the assertion of the Board's jurisdiction violates the first amendment of the United States Constitution. On January 10, 1980, the Board denied Respond- ent's request for review. Thereafter, on January 16, 1980, an election was conducted which resulted in a vote of 64 for, and 51 against, the Union, with I challenged ballot. Subsequently, Respondent filed timely objections to the election. The objections alleged, in sub- ' Official notice is taken or the record in the representation proceed- ing, Cases 5-RC-1 1044 and 5-RC-1 1204, 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 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); Intertype 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. 2 Counsel for the General Counsel's motion to amend, which seeks to amend the complaints to allege matters of which we in any event would take official notice, is hereby granted. - - 223 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stance, that: (1) the Union distributed campaign lit- erature which departed from "preelection fair prac- tice guidelines" insofar as it stated that Respondent "continually lied and misrepresented the truth" to its employees; (2) the Union circulated a question- naire to employees which created an environment of coercion; (3) the Union misrepresented to em- ployees that a vote for the Union would guarantee them certain benefits; (4) the Union made represen- tations concerning union dues; (5) prounion em- ployees verbally abused and intimidated employees who did not actively support the Union; (6) proun- ion employees misrepresented to other employees that the latter's failure to sign union cards prior to the date of the election would render them ineligi- ble to vote at the time of the election; and (7) prounion employees announced that certain em- ployees who did not cast votes for the Union would lose their jobs after the Union won the elec- tion. After an investigation, the Regional Director on April 15, 1980, issued a Supplemental Decision and Certification of Representative in Case 5-RC- 11044 in which he overruled Respondent's objec- tions in their entirety and issued a Certification of Representative. Thereafter, Respondent filed with the Board a timely request for review of the Re- gional Director's Supplemental Decision in which it contended that he erred in overruling certain of its objections to the election. On June 3, 1980, the Board denied Respondent's request for review. Subsequently, on June 12, 1980, the Regional Di- rector issued a Decision and Direction of Election in Case 5-RC-11204 in which he directed an elec- tion in a unit of Respondent's technical employees, including licensed practical nurses. He further pro- vided that if a majority of the employees voted in favor of representation by the Union, they would be deemed to have manifested their desire to be in- cluded in the existing service and maintenance unit certified in Case 5-RC-11044. On July 10, 1980, the Board denied Respondent's request for review of the Regional Director's Decision and Direction of Election, in which Respondent, inter alia, con- tended that assertion of the Board's jurisdiction was improper. Thereafter, an election was conduct- ed on July 16, 1980, which resulted in a vote of 6 for, and 2 against, representation by the Union in the existing service and maintenance unit. There were no challenged ballots. Thereafter, on August 26, 1980, the Regional Director issued a Supple- mental Decision and Certification of Representa- tive in which Respondent's objections to the elec- tion were overruled in their entirety and the exist- ing service and maintenance unit previously certi- fied was amended to include all full-time and regu- lar part-time technical employees, including li- censed practical nurses. Respondent did not file a request for review of the Regional Director's Sup- plemental Decision and Certification of Representa- tive. Respondent's contentions in this unfair labor practice proceeding are essentially the same as those advanced in the underlying representation cases which the Board has previously considered and rejected. 3 It thus appears that Respondent is attempting in this proceeding to relitigate issues which were fully litigated in the representation proceedings. 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 1. THE BUSINESS OF RESPONDENT Respondent, a nonprofit corporation organized under the laws of the Commonwealth of Pennsyl- vania, is engaged as a health care institution in the operation of a nursing home in Frostburg, Mary- land. During the 12 months preceding issuance of the complaint, a representative period, Respondent, in the course and conduct of its operations, re- ceived gross revenues in excess of $100,000 and purchased and received, in interstate commerce, products valued in excess of $50,000 directly from points located outside the State of Maryland. s Respondent reiterates its contention that the Board is precluded from asserting jurisdiction over it based on the Supreme Court's opinion in N.L.R.B. v. Catholic Bishop of Chicago, et al., 440 U.S. 490 (1979). How- ever, we have found Catholic Bishop distinguishable from cases, as here, involving church-operated nursing homes and have asserted jurisdiction over such enterprises. See, e.g., Mid American Health Services, Inc., 247 NLRB No. 109 (1980). See also Bon Secours Hospital, Inc., 248 NLRB 115 (1980). 4 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). 224 FROSTBURG VILLAGE OF ALLEGANY COUNTY 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 Retail Store Employees Union, Local 692, United Food and Commercial Workers Internation- al Union, AFL-CIO, CLC, is a 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 regular full-time and part-time service and maintenance employees, nursing assistants, physical therapy assistants, ward clerks, order- lies, dietary employees, housekeeping and laundry employees, maintenance employees and technical employees including licensed practical nurses employed by the Employer at its Frostburg, Maryland, location, but exclud- ing all other employees, office clerical employ- ees, professional employees (including regis- tered nurses not yet licensed), the assistant to the activities director, the assistant to the social case worker, guards and supervisors as defined in the Act. 2. The certification On January 16 and July 16, 1980, a majority of the employees of Respondent in said unit, in secret- ballot elections conducted under the supervision of the Regional Director for Region 5, designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the collective-bargaining represen- tative of Respondent's service and maintenance em- ployees on April 15, 1980. On August 26, 1980, pursuant to the election of July 16, 1980, the Union's Certification of Representative was amend- ed to include all technical employees including li- censed practical nurses. 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 June 9, 1980, and at all times thereafter, the Union has requested Respon- dent to bargain collectively with it as the exclusive collective-bargaining representative of all the em- ployees in the above-described unit. Commencing on or about June 20, 1980, and continuing at all times thereafter to date, Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive representative for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since June 20, 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. 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). 225 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Tressler Lutheran Home for Children t/a Frostburg Village of Allegany County Nursing Home is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Retail Store Employees Union, Local 692, United Food and Commercial Workers Internation- al Union, AFL-CIO, CLC, is a labor organization within the meaning of Section 2(5) of the Act. 3. All regular full-time and part-time service and maintenance employees, nursing assistants, physical therapy assistants, ward clerks, orderlies, dietary employees, housekeeping and laundry employees, maintenance employees and technical employees including licensed practical nurses employed by the Employer at its Frostburg, Maryland, location, but excluding all other employees, office clerical em- ployees, professional employees (including regis- tered nurses not yet licensed), the assistant to the activities director, the assistant to the social case worker, guards and supervisors as defined in the Act constitute a unit appropriate for the purposes of collective bargaining within the meaning of Sec- tion 9(b) of the Act. 4. The above-named labor organization has been and now is the certified and exclusive representa- tive of all employees in the aforesaid appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act, pursuant to its certification of April 15, 1980, as amended by its certification of August 26, 1980. 5. By refusing on or about June 9, 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)(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, Tressler Lutheran Home For Children t/a Frost- burg Village of Allegany County Nursing Home, Frostburg, Maryland, its officers, agents, succes- sors, 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 Retail Store Em- ployees Union, Local 692, United Food and Com- mercial Workers International Union, AFL-CIO, CLC, as the exclusive bargaining representative of its employees in the following appropriate unit: All regular full-time and part-time service and maintenance employees, nursing assistants, physical therapy assistants, ward clerks, order- lies, dietary employees, housekeeping and laundry employees, maintenance employees and technical employees, including licensed practical nurses employed by the Employer at its Frostburg, Maryland, location, but exclud- ing all other employees, office clerical employ- ees, professional employees (including regis- tered nurses not yet licensed), the assistant to the activities director, the assistant to the social case worker, 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 Respondent's facility located at Frost- burg, Maryland, copies of the attached notice marked "Appendix." 5 Copies of said notice, on forms provided by the Regional Director for Region 5, after being duly signed by Respondent's representative, shall be posted by Respondent im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in con- spicuous places, including all places where notices s 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." 226 FROSTBURG VILLAGE OF ALLEGANY COUNTY 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 5, 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 Retail Store Employees Union, Local 692, United Food and Commercial Workers International Union, AFL-CIO, CLC, 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 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 regular full-time and part-time service and maintenance employees, nursing assis- tants, physical therapy assistants, ward clerks, orderlies, dietary employees, house- keeping and laundry employees, mainte- nance employees and technical employees, including licensed practical nurses employed by the Employer at its Frostburg, Maryland, location, but excluding all other employees, office clerical employees, professional em- ployees (including registered nurses not yet licensed), the assistant to the activities direc- tor, the assistant to the social case worker, guards and supervisors as defined in the Act. TRESSLER LUTHERAN HOME FOR CHILDREN T/A FROSTBURG VILLAGE OF ALLEGANY COUNTY NURSING HOME 227