Catholic Housing Services, Inc. d/b/a St. Joseph Home and Marian Hall

266 NLRB No. 88 MJZ 9778 Kansas City, KS UNITED STATES OF AMERICA BEFORE THE NATIONAL LABOR RELATIONS BOARD CATHOLIC HOUSING SERVICES, INC. d/b/a ST. JOSEPH HOME AND MARIAN HALL and LOCAL 96, SERVICE EMPLOYEES INTERNATIONAL UNION, AFL--CIO--CLC Case 17--CA--11264 DECISION AND ORDER Upon a charge filed on October 19, 1982, by Local 96, Service Employees International Union, AFL--CIO--CLC, herein called the Union, and duly served on Catholic Housing Services, Inc. d/b/a St. Joseph Home and Marian Hall, herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 17, issued a complaint on November 3, 1982, 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 September 24, 1982, following a 266 NLRB No. 88 D--9778 Board election in Case 17--RC--9421, the Union was duly certified as the exclusive collective-bargaining representative of Respondent's employees in the unit found appropriate;¹ and that, commencing on or about October 18, 1982, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On November 10, 1982, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On December 6, 1982, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on December 10, 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 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 National Labor Relations Board has delegated its authority in this proceeding to a threemember panel. 1 Official notice is taken of the record in the representation proceeding, Case 17--RC--9421, 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 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. D--9778 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 admits the Union's request and its refusal to bargain with the Union as the exclusive bargaining representative, but in substance attacks the validity of the Union's certification arguing that Respondent is a religious organization and therefore the Board has no jurisdiction over it;2 that the unit in which the election was ordered is not appropriate under the congressional policy enunciated in the 1974 health care amendments to the Act; and that the Board erred in not sustaining Respondent's objections alleging material misrepresentations of fact, or, in the alternative, holding a hearing thereon in the underlying representation proceeding. The General Counsel argues that all material issues have been previously decided. We agree with the General Counsel. Review of the record herein, including the record in Case 17--RC-9421 discloses that on May 27, 1982, pursuant to a Decision and Direction of Election by the Regional Director for Region 17, an election was held among the employees in the unit found appropriate. 3 The tally of ballots shows that, of 2 Respondent alleges that it is not an employer within the meaning of the Act, and further that it is an institution operated, supervised, or controlled by or in connection with the Roman Catholic Church and therefore the Board's assertion of jurisdiction over it is unconstitutional. 3 Prior to the election, on December 6, 1982, Respondent filed a timely request for review which was denied by the Board (Chairman Van de Water, dissenting, would have granted review on the issue of the scope and composition of the unit). 9778 approximately 121 eligible voters, 57 cast valid ballots in favor of, and 51 against, the Union; there were 7 determinative challenged ballots. On June 4, 1982, Respondent filed timely objections to conduct affecting the results of the election. Following an investigation, the Regional Director, on June 24, 1982, issued his Report on Challenged Ballots and Objections, in which he recommended that the challenges to four ballots be sustained, made no recommendation regarding the remaining three challenges, and recommended that Respondent's objections be overruled in their entirety and that a certification of representative issue. Respondent filed timely exceptions to the report. On September 24, 1982, the Board (Chairman Van de Water dissenting based on his dissent from the failure to grant review of the original Regional Director's decision) adopted the Regional Director's report (not reported in volumes of Board Decisions), except that the Board found it unnecessary to pass on, and did not pass on, the Regional Director's recommendation that the challenges to the ballots of employees Furerborn and Gutierrez be sustained. It is well settled that in the absence of newly discovered or previously unavailable evidence or special circumstances a respondent in a proceeding alleging 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 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). --9778 All issues raised by Respondent in this proceeding were or could have been litigated in the prior representation proceeding, 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 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 Kansas corporation with facilities in Kansas City, Kansas, located at 1920 Tauromee Street and 759 Vermont, is engaged in providing medical and professional care for the elderly at its nursing homes. Respondent, in the course and conduct of its business operations within the State of Kansas annually purchases goods and services valued in excess of $50,000, directly from sources located outside the State of Kansas, and annually derives gross revenues in excess of $250,000. We find, on the basis of the foregoing, that Respondent is, and has been at all times material herein, an employer engaged in D--9778 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 96, Service Employees International 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 constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All full-time and regular part-time nurse aides, certified medication aides, certified nurse aides, physical therapy aides, dietary employees, environmental service employees (housekeeping employees), maintenance employees, recreational therapy employees, sewing room employees, and laundry employees, employed by Respondent at its facilities located at 1920 Tauromee Street and 759 Vermont in Kansas City, Kansas, but excluding office clerical employees, professional employees, guards, supervisors as defined in the Act and all other employees. 2. The certification On May 27, 1982, 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 17, designated the Union as their representative for the purpose of collective bargaining with Respondent. D--9778 The Union was certified as the collective-bargaining representative of the employees in said unit on September 24, 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 October 4, 1982, and at all times thereafter, the Union has requested Respondent to bargain collectively with it as the exclusive collective-bargaining representative of all the employees in the above-described unit. Commencing on or about October 18, 1982, and continuing at all times thereafter to date, Respondent has refused, and continues to date 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 October 18, 1982, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative 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 operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several D--9778 States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. 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 appropriate unit will be accorded the services of their selected bargaining agent for the period provided 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 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. Catholic Housing Services, Inc. d/b/a St. Joseph Home and Marian Hall, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. D--9778 2. Local 96, Service Employees International Union, AFL-- CIO--CLC, is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time nurse aides, certified medication aides, certified nurse aides, physical therapy aides, dietary employees, environmental service employees (housekeeping employees), maintenance employees, recreational therapy employees, sewing room employees, and laundry employees, employed by Respondent at its facilities located at 1920 Tauromee Street and 759 Vermont in Kansas City, Kansas, but excluding office clerical employees, professional employees, guards, supervisors as defined in the Act and all other employees, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 4. Since September 24, 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 collective bargaining within the meaning of Section 9 (a) of the Act. 5. By refusing on or about October 18, 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 practices within the meaning of Section 8 (a) (5) of the Act. 6. By the aforesaid refusal to bargain, Respondent has interfered with, restrained, and coerced, and is interfering D--9778 with, restraining, and coercing, employees in the exercise of the rights guaranteed them in Section 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 Relations Board hereby orders that the Respondent, Catholic Housing Services, Inc., d/b/a St. Joseph Home and Marian Hall, Kansas City, Kansas, 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 96, Service Employees International Union, AFL--CIO-- CLC, as the exclusive bargaining representative of its employees in the following appropriate unit: All full-time and regular part-time nurse aides, certified medication aides, certified nurse aides, physical therapy aides, dietary employees, environmental service employees (housekeeping employees), maintenance employees, recreational therapy employees, sewing room employees, and laundry employees, employed by Respondent at its facilities located at 1920 Tauromee Street and 759 Vermont in Kansas City, Kansas, but excluding office clerical employees, professional employees, guards, supervisors as defined in the Act and all other employees. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 9778 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, wáges, hours, and other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement. (b) Post at its facilities located at 1920 Tauromee Street and 759 Vermont copies of the attached notice marked ''Appendix. Copies of said notice, on forms provided by the Regional Director for Region 17, 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 Respondent to ensure that said notices are not altered, defaced, or covered by any other material. 3 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 PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD 9778 (c) Notify the Regional Director for Region 17, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. Dated, Washington, D.C. March 7, 1983 (SEAL) Howard Jenkins, Jr , Member Don A. Zimmerman, Member NATIONAL LABOR RELATIONS BOARD CHAIRMAN MILLER, dissenting: I would not grant the Motion for Summary Judgment as I agree with the dissenting position of former Chairman Van de Water in the underlying representation case; i.e., I would have granted Respondent's request for review regarding the scope and composition of the unit. Dated, Washington, D.C. March 7, 1983 John C. Miller, Chairman NATIONAL LABOR RELATIONS BOARD D--9778 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 96, Service Employees International Union, AFL--CIO--CLC, as the exclusive representative of our employees in the following appropriate unit: All full-time and regular part-time nurse aides, certified medication aides, certified nurse aides, physical therapy aides, dietary employees, environmental service employees (housekeeping employees), maintenance employees, recreational therapy employees, sewing room employees, and laundry employees, employed by us at our facilities located at 1920 Tauromee Street and 759 Vermont in Kansas City, Kansas, but excluding office clerical employees, professional employees, guards, supervisors as defined in the Act and all other employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. D--9778 WE WILL, upon request, bargain with the abovenamed Union, as the exclusive representative of all employees in the aforesaid bargaining unit, 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. CATHOLIC HOUSING SERVICES, INC. d/b/a ST. JOSEPH HOME AND MARIAN HALL (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Two Gateway Center, Room 616, Fourth at State, Kansas City, Kansas 66101, Telephone 816--374--4688.