New Columbus Nursing Home, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD New Columbus Nursing Home, Inc. and Teamsters Local Union No. 122, a/w International Broth- erhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America. Case 1-CA- 19009 August 23, 1982 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZIMMERMAN Upon a charge filed on August 27, 1981, and an amended charge filed on October 7, 1981,1 by Teamsters Local Union No. 122, a/w International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America (herein called the Union), and duly served on New Columbus Nurs- ing Home, Inc. (herein called Respondent), the General Counsel of the National Labor Relations Board, by the Regional Director for Region 1, issued a complaint on October 9 against Respond- ent, alleging that Respondent had engaged in cer- tain unfair labor practices. Upon a second amended charge filed on November 10 by the Union and duly served on Respondent, the General Counsel of the National Labor Relations Board, by the Acting Regional Director for Region 1, issued an amended complaint on November 18 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 amended charges and the complaint and amended 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 amended complaint alleges in substance that on or about July 10 a majority of the employees of Re- spondent designated or selected the Union as their representative2 for the purposes of collective bar- gaining in three units (A, B, and C) described as appropriate in the complaint; that, commencing on or about September 15 and 29 and October 2, and at all times thereafter, Respondent refused and con- tinues to refuse to meet and bargain collectively with the Union as the exclusive representative of All dates herein are in 1981 unless designated otherwise. s Official notice is taken of the record in the representation proceed- ing, Cases 1-RC-17289, I-RC-17290, and 1-RC-17291, 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 Electroystens Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (4th Cir. 1968); Golden Age Bever- age Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26 (5th Cir. 1969); Inter- type 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. 263 NLRB No. 62 the employees in each of the units described as ap- propriate in the complaint; and that, since on or about the same dates, Respondent has refused and continues to refuse to provide the Union with cer- tain information requested by it which is relevant to, and necessary for, the Union's performance of its function as the exclusive collective-bargaining representative of the employees. On October 19 and November 30, Respondent filed its answers to the complaint and amended complaint, respective- ly, admitting in part, and denying in part, the alle- gations in the complaints. On December 16, counsel for the General Coun- sel filed directly with the Board a Motion for Sum- mary Judgment. 3 Subsequently, on December 28, 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 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 amended complaint and in its response to the Notice To Show Cause Respondent admits that elections were held on or about July 10, in the three units described in paragraph 8 of the amended complaint, and that tallies of ballots revealed that a majority of the ballots were cast on behalf of the Union in each of the units. Respond- ent denies that the units set forth in the complaint constitute appropriate units for the purposes of col- lective bargaining and denies that a majority of the employees in each of the respective units were per- mitted to properly select the Union on grounds the Union purportedly "made a misleading and decep- tive statement regarding a material issue (the Union's financial condition), within the special knowledge of the Union, under circumstances that deprived" Respondent of an opportunity to make an effective reply. Respondent admits that the Union requested that Respondent bargain collec- tively with it in respect to rates of pay, wages, hours of employment, and other conditions of em- ployment; that the Union requested that Respond- ent furnish the Union with certain information de- s Thereafter, on December 18 and 24, respectively, counsel for the General Counsel filed a motion and further motion to correct inadvertent errors in the Motion for Summary Judgment. 610 NEW COLUMBUS NURSING HOME, INC. tailed in the amended complaint; and that Respond- ent has declined to meet and bargain with the Union and has declined to furnish said information. Respondent, however, denies that the Union has at all times material herein been the lawfully elected representative of the employees in the respective units. Thus, Respondent argues that the Board should conduct a hearing on the allegations in the amended complaint because there has been no evi- dentiary hearing in the prior representation pro- ceeding regarding Respondent's objections to the conduct of the elections relating to the effect on the eligible voters of the Union's purported misrep- resentation. The General Counsel in his Motion for Summary Judgment contends that it is obvious from Respondent's answer to the amended com- plaint that Respondent desires to relitigate issues resolved in the representation proceeding; and that such purpose is further disclosed by Respondent's posting of a notice to its employees dated Septem- ber 25 asserting that Respondent did not "intend to recognize the [Union as the employees'] bargaining representative," but would instead await court rul- ings on whether the "election was fair," and that Respondent had been advised it was "under no present legal obligation to meet with the [U]nion." We agree with the General Counsel. Review of the record herein discloses that the Regional Director issued a Decision and Direction of Elections on June 9, and an amendment thereto on July 2, in which he directed elections in three units found appropriate at Respondent's facility. On June 22, the Employer (Respondent herein) filed a request for review of the Decision and Direction of Elections. The Board denied said request for review on July 6. On July 10, secret-ballot elec- tions were conducted in the units found appropri- ate. The tally of ballots in each unit disclosed that a majority of the ballots was cast for the Union, with no determinative challenged ballots. On July 15, the Employer timely filed objections to the conduct of the elections and to the conduct affect- ing the results of the elections. On August 3, the Board denied the Petitioner's (the Union's) request for review of the Regional Director's amendment to his Decision and Direction of Elections.4 Fol- lowing an investigation of the objections, the Re- gional Director on August 14 issued a Supplemen- tal Decision and Certifications of Representative, in which he overruled the Employer's objections in their entirety, and certified the Union as the collec- tive-bargaining representative of the employees in each of the three appropriate units. On August 27, the Employer filed a request for review of the Re- gional Director's Supplemental Decision and Certi- fications of Representative. On September 15, the Board denied that request for review. Respondent in its answer to the amended com- plaint and in its response to the Notice To Show Cause offers no justification for its admitted refus- als to meet and bargain with the Union or to fur- nish it with relevant information, except to claim that the Board's determinations as to the units and the validity of the elections and the Union's certifi- cations were erroneous. We find no merit in these contentions. 5 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.6 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 4 The denial of review was without prejudice to the Petitioner's nght to again raise the issue in the event that an individual's challenged ballot proved determinative. As noted above. there were no determinative chal- lenged ballots. s While the amended complaint does not specifically allege the Union's certifications in the units of Respondent's employees found appropriate, the exhibits herein include, inter alia,. the Regional Director's Supplemen- tal Decision and Certifications of Representative and the Board's denial of Respondent's request for review thereof. Accordingly, we find, as al- leged in the Motion for Summary Judgment, that the units set forth in the amended complaint are appropriate, and that the Union was properly certified in said units. 4 See Pittsburgh Plate Glass Co. v. N.LR.B., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c). 611 DECISIONS OF NATIONAL LABOR RELATIONS BOARD practice proceeding. 7 Accordingly, we grant the Motion for Summary Judgment. 8 FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent, a Massachusetts corporation, at all times material herein has maintained its principal office and place of business at 910 Saratoga Street, Boston, Massachusetts, where it is now and has been engaged in the operation of a long-term con- valescent home. In the course and conduct of its business described above, Respondent annually re- ceives gross revenues in excess of $250,000, and an- nually receives goods valued in excess of $50,000 directly from clients located outside the Common- wealth of Massachusetts. 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 Teamsters Local Union No. 122, a/w Interna- tional Brotherhood of Teamsters, Chauffeurs, War- ehousemen and Helpers of America, is a labor or- ganization within the meaning of Section 2(5) of the Act. I We concur with Respondent that its answer to various paragraphs of the amended complaint, asserting it was without knowledge or informa- tion sufficient to form a belief as to certain allegations, served as denials rather than admissions, and that Respondent did not per se admit that it "violated the Act" as suggested in the Motion for Summary Judgment. Respondent nevertheless admits the operative facts; i.e, that the Union was certified and requested that Respondent bargain and provide infor- mation, and that Respondent declined to do so based on its objections to the elections. The mere assertion of error accompanied by arguments al- ready considered and rejected by the Board in the underlying representa- tion proceeding does not constitute special circumstances warranting a reexamination of that proceeding at this time, nor suffice as a defense to the Motion for Summary Judgment. We find no merit in Respondent's apparent contention that because certain letters from the Union asking Respondent to bargain were sent to its counsel rather than to Respond- ent's facility they should be deemed inadequate to demonstrate such de- mands. Indeed, Respondent concedes that the letters were in response to correspondence from its counsel attempting to establish on its own terms an "informal" negotiating arrangement in lieu of its obligation to formally bargain with the Union. s We construe the General Counsel's motion as intended to apply to, and grant it only insofar as it pertains to, those matters alleged in the amended complaint. We do not pass on matters contained in the original and first amended charges which were encompassed in the initial com- plaint but not included in the amended complaint. Counsel for the General Counsel in his Motion for Summary Judgment "moves ... that since on or about July 13, 1981 . . ." Respondent has refused to meet and bargain with the Union, and since "on or about July 30, 1981" has refused to supply the Union with information. We shall construe these dates as error. The amended complaint alleges that Re- spondent refused to provide the information requested by the Union and refused to meet and bargain with the Union since on or about September 15 and other subsequent dates. We shall therefore treat this as the opera- tive date, subject to the discussion in fn. 9 infra. III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The units The following employees of Respondent consti- tute units appropriate for collective-bargaining pur- poses within the meaning of Section 9(b) of the Act: A. All full-time and regular part-time registered nurses employed by Respondent at its Boston, Massachusetts, facility, but excluding all other employees, guards and supervisors as defined in the Act. B. All full-time and regular part-time licensed practical nurses employed by Respondent at its Boston, Massachusetts, facility, but excluding all other employees, casual employees, irregu- lar part-time employees, guards and supervi- sors as defined in the Act. C. All full-time and regular part-time service and maintenance employees, including nurses' aides orderlies, dietary aides, housekeepers, cooks, kitchen employees, laundry employees, activi- ties aides, program aides and medical records clerks employed by Respondent at its Boston, Massachusetts, facility, but excluding all other employees, casual employees, irregular part- time employees, guards and supervisors as de- fined in the Act. 2. The certification On July 10, a majority of the employees of Re- spondent in each of said units, in secret-ballot elec- tions conducted under the supervision of the Re- gional Director for Region 1, 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 units on August 14, 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 13 and 30 and August 18, and at all times thereafter, the Union has requested Respondent to bargain collectively with and to furnish certain relevant information to 612 NEW COLUMBUS NURSING HOME, INC. the Union as the exclusive collective-bargaining representative of all the employees in the above-de- scribed units. Commencing on or about September 25,9 and continuing at all times thereafter to date, Respondent has refused, and continues to refuse, to recognize and bargain with and to furnish certain relevant information to the Union as the exclusive representative for collective bargaining of all em- ployees in said units. Accordingly, we find that Respondent has, since September 25, and at all times thereafter, refused to bargain collectively with and to furnish certain rel- evant information to the Union as the exclusive representative of the employees in the appropriate units, and that, by such refusals, 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 and furnish the Union with information necessary and relevant to the Union as the exclusive representative of all employees in the appropriate units, and, if an un- derstanding is reached, embody such understanding in a signed agreement. In order to insure that the employees in the ap- propriate units will be accorded the services of their selected bargaining agent for the period pro- vided by law, we shall construe the initial period of certification as beginning on the date Respondent commences to bargain in good faith with the Union as the recognized bargaining representative in the appropriate units. See Mar-Jac Poultry Com- pany, Inc., 136 NLRB 785 (1962); Commerce Com- 9 Although the amended complaint lists this date as September 15, such date is not supported by the record. The exhibits submitted with the Motion for Summary Judgment indicate the date was September 25, the date of Respondent's posted notice to its employees, discussed supra,. in- forming them that Respondent did not intend to recognize the Union, but rather to await court rulings on its objections to the elections. We find that Respondent's refusals commenced on September 25. pany 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. New Columbus Nursing Home, Inc., is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Teamsters Local Union No. 122, a/w Interna- tional Brotherhood of Teamsters, Chauffeurs, War- ehousemen and Helpers of America, is a labor or- ganization within the meaning of Section 2(5) of the Act. 3. The following employees of Respondent con- stitute units appropriate for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act: A. All full-time and regular part-time registered nurses employed by Respondent at its Boston, Massachusetts, facility, but excluding all other employees, guards and supervisors as defined in the Act. B. All full-time and regular part-time licensed practical nurses employed by Respondent at its Boston, Massachusetts, facility, but excluding all other employees, casual employees, irregu- lar part-time employees, guards and supervi- sors as defined in the Act. C. All full-time and regular part-time service and maintenance employees, including nurses' aides orderlies, dietary aides, housekeepers, cooks, kitchen employees, laundry employees, activi- ties aides, program aides and medical records clerks employed by Respondent at its Boston, Massachusetts, facility, but excluding all other employees, casual employees, irregular part- time employees, guards and supervisors as de- fined in the Act. 4. Since August 14, 1981, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the aforesaid appropriate units for the purpose of col- lective bargaining within the meaning of Section 9(a) of the Act. 613 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. By refusing on or about September 25, and at all times thereafter, to bargain collectively with and to furnish relevant information to the above- named labor organization as the exclusive bargain- ing representative of all the employees of Respond- ent in the appropriate units, Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain and to pro- vide relevant information, Respondent has inter- fered with, restrained, and coerced, and is interfer- ing with, restraining, and coercing, employees in the exercise of the rights guaranteed them in Sec- tion 7 of the Act, and thereby has engaged 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, New Columbus Nursing Home, Inc., Boston, Mas- sachusetts, its officers, agents, successors, and as- signs, 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 Teamsters Local Union No. 122, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive bargaining representa- tive of its employees in the following appropriate units: A. All full-time and regular part-time registered nurses employed by Respondent at its Boston, Massachusetts, facility, but excluding all other employees, guards and supervisors as defined in the Act. B. All full-time and regular part-time licensed practical nurses employed by Respondent at its Boston, Massachusetts, facility, but excluding all other employees, casual employees, irregu- lar part-time employees, guards and supervi- sors as defined in the Act. C. All full-time and regular part-time service and maintenance employees, including nurses' aides orderlies, dietary aides, housekeepers, cooks, kitchen employees, laundry employees, activi- ties aides, program aides and medical records clerks employed by Respondent at its Boston, Massachusetts, facility, but excluding all other employees, casual employees, irregular part- time employees, guards and supervisors as de- fined in the Act. (b) Refusing to furnish the above-named labor organization with information necessary and rele- vant to the Union's performance of its function as the exclusive collective-bargaining representative of the employees in the units described above. (c) 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 units 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) Upon request, furnish the Union with infor- mation necessary and relevant to the Union's per- formance of its function as the exclusive collective- bargaining representative in the aforesaid units, in- cluding the following: (i) Dates of employment for all full-time and reg- ular part-time registered nurses, licensed practical nurses, and service and maintaince employees. (ii) Job classifications and descriptions for the above-mentioned employees. (iii) Hourly wage rates for the above-mentioned employees (iv) All medical, life, and retirement insurance policies, including any riders and plan description booklets, which New Columbus Nursing Home, Inc., has retained for the benefit of the above-men- tioned employees. (v) Employees' Personnel Policy Manual for New Columbus Nursing Home, Inc. (c) Post at its Boston, Massachusetts, facility copies of the attached notice marked "Appen- dix."' 0 Copies of said notice, on forms provided by the Regional Director for Region 1, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt 10 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." 614 NEW COLUMBUS NURSING HOME, INC. 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 ensure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 1, 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, or refuse to furnish relevant information to, Teamsters Local Union No. 122, a/w Inter- national Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, as the exclusive representative of the employ- ees in the bargaining units 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, and furnish it with rele- vant information, as the exclusive representa- tive of all employees in the bargaining units 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 units are: A. All full-time and regular part-time registered nurses employed by the Employer at its Boston, Massachusetts, facility, but exclud- ing all other employees, guards and supervi- sors as defined in the Act. B. All full-time and regular part-time licensed practical nurses employed by the Employer at its Boston, Massachusetts, facility, but ex- cluding all other employees, casual employ- ees, irregular part-time employees, guards and supervisors as defined in the Act. C. All full-time and regular part-time service and maintenance employees, including nurses' aides orderlies, dietary aides, house- keepers, cooks, kitchen employees, laundry employees, activities aides, program aides and medical records clerks employed by the Employer at its Boston, Massachusetts, fa- cility, but excluding all other employees, casual employees, irregular part-time em- ployees, guards and supervisors as defined in the Act. NEW COLUMBUS NURSING HOME, INC. 615