Ovid Convalescent Manor, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ovid Convalescent Manor, Inc. and Local 79, Nurs- ing and Convalescent Home Employees Division of Service Employees International Union, AFL-CIO. Case 7-CA-20630 September 30, 1982 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZIMMERMAN Upon a charge filed on May 6, 1982, by Local 79, Nursing and Convalescent Home Employees Division of Service Employees International Union, AFL-CIO, herein called the Union, and duly served on Ovid Convalescent Manor, Inc., herein called Respondent,' the General Counsel of the National Labor Relations Board, by the Re- gional Director for Region 7, issued a complaint on June 8, 1982, against Respondent, alleging that Re- spondent 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 March 1, 1982, following a Board election in Case 7-RC- 16556, the Union was duly certified as the exclu- sive collective-bargaining representative of Re- spondent's employees in the unit found appropri- ate; 2 and that, commencing on or about March 1, 1982, 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.3 It is further I In its answer to the complaint, Respondent neither admits nor denies that it was served with the charge. Counsel for the General Counsel con- tends that this answer is inadequate and improper since this matter is clearly within Respondent's knowledge. The General Counsel also sub- mitted documents showing that on May 8, !982, a copy of the charge herein was delivered by certified mail to Respondent's facility, and the certified mail return receipt contains a signature certifying receipt of same. Respondent does not controvert this proof of counsel for the Gen- eral Counsel's allegations in the Motion for Partial Sunim.ry Judgment. Accordingly, timely filing and service of the charge are' established by unchallenged documentary evidence, and the allegatioai is deemed as ad- mitted 2 Cto..cial notice is taken of the record inl the representation plioceed- ing, Case 7-RC-16556, as Ihe 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 Electrosysrem. Inc., 166 NLRB 938 (1967). enfd 388 F.2d 683 (4th Cir. 1968); Golden Age Beverage Co., 167 NI RB 151 (1967), enfd 415 F.2d 26 (5th Cir. 1969); Intertype Co. X Penello, 269 1FSupp. 573 (D.C.Va. 1967); Follert Corp., 164 NI.RB 378 (1967), cnfd 397 F.2d 91 (7th Cir. 1968): Sec. 9(d) of the NLRA, as amended. 3 The General Counsel moves for summary judgment solely on these allegations of the complaint. He moves the remaining allegationlt in the 264 NLRB No. 105 alleged that on or about April 1, 1982, Respondent announced to the employees in the unit found ap- propriate that all personal holidays, wage increases, and vacation days were frozen or would not be paid or given until negotiations were completed with the Union and that part-time employees would no longer receive Respondent's paid life, sickness, and disability insurance. It is alleged that this announcement was made without notification to the Union and without giving the Union reason- able opportunity to bargain about these changes in past practice. On June 18, 1982, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On July 26, 1982, counsel for the General Coun- sel filed directly with the Board a "Motion to Transfer Part of the Case to and Continue Pro- ceedings Before the Board and Motion for Partial Summary Judgment." Subsequently, on August 3, 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 Par- tial Summary Judgment should not be granted. Re- spondent did not file 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 that it had any obligation to bargain with the Union. This denial is based on a challenge to the validity of the Union's certification. Specifical- ly, Respondent asserts that the Board erred in cer- tifying the Union both because Respondent's objec- tions to the election in Case 7-RC-16556 warrant- ed setting aside the election results and because the Regional Director's denial of a hearing in response to Respondent's objections was a denial of due process. In the Motion for Partial Summary Judgment, counsel for the General Counsel alleges that Re- spondent seeks to relitigate issues previously con- sidered in the underlying representation case and that no factual issues warranting a hearing are pre- sented in this case :oncerning the issues which are the subject of this motion. complaint be considered at the scheduled hearing before an administra- tive law judge. We find that the remaining allegations of Xiolations of Sec. 8(a)(1) atld (5) of the Act raise genuine issues of material fact. We therefore shall remand those issues raised by those allegations of the com- plaint to the Regional Director for hearing thereon 774 OVID CONVALESCENT MANOR, INC. Our review of the record herein, including the record in Case 7-RC-16556, discloses, inter alia, that, pursuant to a Stipulation for Certification Upon Consent Election, an election was conducted among the employees in the stipulated unit on No- vember 25, 1981, and that the tally of ballots fur- nished the parties after the election showed 24 votes cast for and 18 votes cast against the Union. There were five challenged ballots, an insufficient number to affect the results of election. Respondent timely filed objections which alleged that the elec- tion was not conducted under requisite laboratory conditions. According to Respondent, there existed among employees a great deal of turmoil and hos- tility toward it because on October 15 and 16, 1981, all employees were mistakenly inoculated during a tuberculin testing program with a vaccine which has serious side effects and is contraindicat- ed for persons who are tuberculin positive individ- uals. On December 16, 1981, the Regional Director issued his Report and Recommendation on Objec- tions to the Election in which he recommended that the objections be overruled in their entirety and that the Board issue a certification of repre- sentative. In so doing, he found that Respondent failed to establish a prima facie case that the inad- vertent inoculation of the employees which oc- curred 41 or 42 days prior to the election had such an effect as to impair the employees' freedom of choice at the polls or to impugn the Board's elec- tion standards. He further found that Respondent proceeded with the election without bringing the matter to the attention of the Regional Office, and noted that Respondent did not contend that it had made any attempt prior to the election to explain or dispel any possible effects of the inadvertent in- oculation. Respondent filed timely exceptions to the Regional Director's report reiterating the con- tentions set forth in its objections and arguing, inter alia, that the Regional Director's failure to conduct a hearing on the objections was a violation of due process. On March 1, 1982, the Board issued its Decision and Certification of Representative 4 adopting the Regional Director's findings and rec- ommendations, specifically noting, inter alia, that Respondent's exceptions raised no issues requiring a hearing. As noted above, in its answer to the complaint, Respondent asserts that it has no duty to bargain with the Union. Respondent also neither admits nor denies complaint paragraphs 11 and 12, which allege that since on or about March 1, 1982, the Union has made numerous attempts by telephone and also by letter dated April 15, 1982, to contact Respondent in order to set up collective-bargaining 4 Not reported in volumes of Board Decisions. sessions and that Respondent has failed to answer all inquiries. Counsel for the General Counsel sub- mitted a copy of the April 15, 1982, letter in sup- port of the allegations. In its Motion for Partial Summary Judgment, counsel for the General Coun- sel asserts that Respondent's answer to these allega- tions is improper and inadequate. Since Respondent has neither alluded to nor controverted either the telephone calls or the letter of April 15, 1982, its answer to these allegations of the complaint with respect to the Union's requests to bargain fails to raise an issue of fact requiring a hearing and the al- legations of the complaint are deemed to have been admitted.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 The issues raise by Respondent in this proceed- ing concerning the merits of its objections to the election held in Case 7-RC-16556 were or could have been litigated in the prior representation pro- ceeding, and Respondent does not offer to adduce at a hearing any newly discovered or previously unavailable evidence, nor does it allege that any special circumstances exist herein which would re- quire 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 pro- ceeding. Accordingly, we grant summary judgment with respect to the allegations of the complaint that Respondent refused to bargain with the Union as the exclusive collective-bargaining representative of all employees in the appropriate unit. We find, however, that genuine issues of material fact exist as to the remaining allegations of the complaint. We therefore remand those issues to the Regional Director for hearing before an administrative law judge as scheduled. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Ovid Convalescent Manor, Inc., a Michigan cor- poration with an office and place of business locat- ed at 9480 East M-21, Ovid, Michigan, is engaged in the provision of nursing care services. During I See General Dynamics Corporation, 187 NLRB 679 (1971); The May Department Stores Company, 186 NLRB 86 (1970). 6 See Pittsburgh Plate Glass Co. v. .L.R.B.., 13 U.S. 146, 162 (1941): Rules and Regulations of the Board, Secs. 102.67(f) and 102 69(c). 775 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the fiscal year ending October 31, 1981, which period is representative of its operations during all times material hereto Respondent in the course and conduct of its business operations had gross re- ceipts in excess of $100,000 and purchased and caused to be delivered to its Ovid, Michigan, place of business goods and materials valued in excess of $50,000, which were transported and delivered di- rectly: from points located outside the State of Michigan. 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 Local 79, Nursing and Convalescent Home Em- ployees Division of Service Employees Internation- al Union, AFL-CIO, 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 full time and regular part time nurses aides, maintenance, dietary, housekeeping and laundry employees employed by Ovid Conva- lescent Manor, Inc. at its facility located at 9480 E. M-21, Ovid, Michigan, but excluding all office clerical employees, registered nurses, licensed practical nurses and supervisors as de- fined in the Act. 2. The certification On November 25, 1981, a majority of the em- ployees of Respondent in said unit, in a secret- ballot election conducted under the supervision of the Regional Director for Region 7, 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 March 1, 1982, 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 March 1, 1982, 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. Commencing on or about March 1, 1982, and continuing at all times thereafter to date, Respond- ent has refused, and continues to refuse, to recog- nize and bargain with the Union as the exclusive representative for collective bargaining of all em- ployees in said unit. Accordingly, we find that Respondent has, since March 1, 1982, 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 ensure 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; 776 OVID CONVALESCENT MANOR, INC. 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. Ovid Convalescent Manor, Inc., is an employ- er engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 79, Nursing and Convalescent Home Employees Division of Service Employees Interna- tional 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 nurses aides, maintenance, dietary, housekeeping and laun- dry employees employed by Respondent at its fa- cility located at 9480 E. M-21, Ovid, Michigan, but excluding all office clerical employees, registered nurses, licensed practical nurses and supervisors as defined in the Act, constitutes an appropriate unit for collective bargaining within the meaning of Section 9(b) of the Act. 4. Since March 1, 1982, 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 March 1, 1982, 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, 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, Ovid Convalescent Manor, Inc., Ovid, Michigan, 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 Local 79, Nursing and Convalescent Home Employees Division of Service Employees International Union, AFL- CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All full time and regular part time nurses aides, maintenance, dietary, housekeeping and laundry employees employed by Respondent and its facility located at 9480 E. M-21, Ovid, Michigan, but excluding all office clerical em- ployees, registered nurses, licensed practical nurses 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 its Ovid, Michigan, place of business copies of the attached notice marked "Appendix." 7 Copies of said notice, on forms provided by the Regional Director for Region 7, 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 notice 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. (c) Notify the Regional Director for Region 7, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. IT IS FURTHER ORDERED that the instant pro- ceeding be, and it hereby is, remanded to the Re- gional Director for Region 7 for the sole purpose of holding a hearing before an administrative law judge to determine whether Respondent violated Section 8(a)(5) and (1) of the Act by announcing to employees that all holidays, wage increases, and vacation days were frozen or would not be paid or given until negotiations were completed with the I 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" 777 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union and that part-time employees would no longer receive Respondent's paid life, sickness, and disability insurance, as alleged in the complaint. 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 Local 79, Nursing and Convalescent Home Employees Division of Service Em- ployees International Union, AFL-CIO, 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 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 nurses aides, maintenance, dietary, housekeeping and laundry employees employed by us at our facility located at 9480 E. M-21, Ovid, Michigan, but excluding all office clerical employees, registered nurses, licensed practi- cal nurses and supervisors as defined in the Act. OVID CONVALESCENT MANOR, INC. 778