Morgan Health Care Center, Inc.

Rbode -CA- Rhode AFL- 8(a)(5) 2(6) I-RC- -RC- -RM- 8(a)(5) I Official record representation ef a/., term "rce- W s . 102.69(g) 8. Elecfrary~frmc. Inc., 166 (19671. F.2d 1968); Golden Bewraxe I51 (1%7), ~ . 2 d 1969); tierrypr C; v. Pmello. F.Supp. (D.C.V.., 1%7); Folleff Corp., 164 (1967). F.2d 1%8); Scc. 9(d) the an 8(a)(1) transferring proceedihg, 1- a/., 1-RM-1043, eleo tion fmding recom- collective- 650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Morgan Health Care Center, Inc. and District 1199 Island, National Union of Hospital and Health Care Employees, RWDSU, AFL-CIO. Case 1 14984 April 2, 1979 DECISION AND ORDER Upon a charge filed on September 22, 1978, by District 1199 Island, National Union of Hos- pital and Health Care Employees, RWDSU, CIO, herein called the Union, and duly served on Morgan Health Care Center, Inc., herein called Re- spondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 1, issued a complaint on October 4, 1978, against Re- spondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section and (1) and Section and (7) of the National Labor Relations Act, as amended. Copies of the charge, complaint, and notice of hearing before an Adminis- trative Law Judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the com- plaint alleges in substance that on September 12, 1978, following a Board election in Cases 15733, 1 15734, and 1-RC-15735; 1 1042; and 1-RM-1043, the Union was duly certified as the exclusive collective-bargaining representative of Re- spondent's employees in the unit (voting group (b)) found appropriate1 and that, commencing on or about September 19, 1978, and at all times thereafter, Respondent has refused, and continues to date to re- fuse, to bargain collectively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On October 12, 1978, Respondent filed its answer to the complaint, admitting in part, and denying in part, the allegations in the complaint. Respondent admits all the factual allegations in the complaint but denies those paragraphs which allege that a majority of the employees of Respondent in the unit described in the complaint designated and selected the Union as their representative for the purposes of collective bargain- ing and that the Union has been, and is, the repre- sentative of a majority of the employees. Respondent also denies that it violated Section and (1) of the Act. notice is taken of the in the proceeding. Cars I-RC-15733 I-RM-1042, and I-RM-1043, as the ord" is defined in 102.68and of the Board's Rules and Regu- lations, Series as amended. See LTV NLRB 938 enfd. 388 683 (4th Cir. Age Co., 167 NLRB enfd. 415 26 (5th Cir. 269 573 NLRB 378 enfd. 397 91 (7th Cir. of NLRA. amended. On November 17, 1978, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment and a motion for transfer to the Board for decision, with exhibits attached. Counsel for the General Counsel submits, in effect, that Re- spondent, in its answer, is seeking to relitigate issues which were or could have been litigated in the prior representation proceeding and that the allegations in paragraphs 12, 13, 14, and 15 of the complaint may be evaluated and decided without the need for a hear- ing in the matter. He therefore moved that the Board find: (1) that a majority of the employees in the ap- propriate unit, by a valid secret-ballot election, desig- nated the Union as their representative for the pur- poses of collective bargaining and that at all times since the said election on May 25, 1978, the Union has been the exclusive representative for the purposes of collective bargaining for the employees in said unit; (2) that the Respondent did, on September 19, 1978, refuse and continues to refuse to bargain collec- tively with the Union as the exclusive representative of all employees in voting group (b); (3) that all other material allegations in the complaint, which Respon- dent has, in effect, admitted in its answer, be deemed to be true; and (4) that Respondent be found to have violated Section and (5) of the Act without the taking of evidence in support of the allegations of the complaint. Subsequently, on November 29, 1978, the Board issued an order the proceeding to the Board and a Notice To Show Cause why the Gen- eral Counsel's Motion for Summary Judgment should not be granted. Respondent thereafter filed an oppo- sition to the General Counsel's motion, contending that summary judgment should not be granted. Upon the entire record in this the Board makes the following: Ruling on the Motion for Summary Judgment Review of the record herein reveals that in Cases RC-15733 et 1-RM-1042, and a Stipulation for Certification Upon Consent Election was approved by the Regional Director, and the was conducted on May 25, 1978. On May 30, 1978, Respondent, Morgan Health Care Center, Inc., filed objections to conduct affecting the results of the election. The Acting Regional Director issued his Re- port on Objections on July 5, 1978, finding no merit in the objections and recommending that the Union be certified as to voting group (b). Respondent filed exceptions to the Acting Regional Director's report on objections. On September 12, 1978, the Board is- sued a Decision and Certification in which it adopted the Acting Regional Director's and mendations and certified the Union as the 1 (b).2 wages, Res~ondent union has repr&ntaGve 8(a)(5) em~lovees aAdwere un- Certihtion Memben Penello agreement Re- Food Inc.. 1 suted misrepmsentation standards Hollywmd ceramic^ Conmpany, Inc., 140 (1%2), Firestone Divuion Firestone 235 General Cali/ornia. Inc., (1978). Penello overruled cogently Hollywood Trues- misnpr*lentation set Penello case. -RC- -RM- 8(a)(5) annual $100,000 $50,000 2(6) ' S C ~ Plate GIau N.LR.B., 146, 102.67(f) 102.69(c). MORGAN HEALTH CARE CENTER, INC. 65 bargaining representative for the employees in voting group Following a request by the Union on or about Sep- tember 19, 1978, that Respondent bargain collectively in good faith with respect to rates of pay, hours of employment, and other terms and conditions of employment, Respondent refused to recognize and bargain with the Union as the exclusive bargaining representative of its employees in the certified unit. Respondent has refused to bargain with the Union since September 19, 1978. On October 12. 1978. filed its answer admitting in part, and denying in part, the allegations of the complaint. Respondent admits all the factual allegations in the complaint but denies those para- graphs which allege that a majority of the employees of Respondent in the unit described in the complaint designated and selected the Union as their represent- ative for the purposes of collective bargaining and that the been, and is, the of a majority of the employees. Respondent also denies that it violated Section and (1) of the Act. Additionally, Respondent alleges that the Union "was not properly certfied," because the Union "en- gaged in campaign misconduct sufficient to require that the election be set aside." Respondent further contends that the union agents' actions "constitute misrepresentation of material facts involving a sub- stantial departure from the truth made by a party with special knowledge of the truth communicated so shortly before the election that the Respondent had insufficient time to correct it, and further that it in- volved the facts about which the were not in the position to know the truth of such grievous nature that a fair election was rendered an impossibility." Respondent finally alleges that the Re- gional Director abused his discretion in denying it a hearing on the objections. The General Counsel con- tends that Respondent is improperly seeking to reliti- gate issues which were raised and decided in the In fn. 2 of the underlying Decision and of Representative, and Murphy stated their with the Acting gional Director's conclusion that the alleged misrepresentation did not war- rant the setting aside of the election, for the reasons set forth in their separate opinions in Shqping Kart Market. 228 NLRB 131 (1977). Chair- man Fanning that he would find the alleged did not warrant setting aside the election but that he relied on the enunci- ated in NLRB 221 and Steel Products, a of Tire and Rubber Company, NLRB 548 (1978). Subsequently, in Knit of 239 NLRB No. 101 the Board. Members and Murphy dissenting. Shqping Kart, and returned to "the standard of review for alleged misrepresentations most articulated in Ceramics Com- pany." Accordingly, Chairman Fanning and Members Jenkins and dale have considered the objections alleged herein under the standard of review as forth in General Knit and, under that standard. find that the misrepresentation allegations are not sufficient to warrant set- ting aside the election. Members and Murphy adhere to their respec- tive positions in Shqping Kart and, as stated previously in the underlying representation find no merit in Respondent's election objections. derlying representation proceeding. We agree with the General Counsel. Clearly, by its answer to the complaint, and more specifically by its denials, in whole or in part, of the allegations of the complaint and the allegations in its answer, Respondent is attempting to relitigate the same issues which it raised in the underlying repre- sentation Cases 1 15733 et al., 1 1042, and 1-RM-1043, and which were decided against it therein. It is well settled that in the absence of newly dis- covered or previously unavailable evidence or special circumstances, a respondent in a proceeding alleging a violation of Section is not entitled to reliti- gate issues which were or could have been litigated in a prior representation proceeding? All issues raised by Respondent in this proceeding were or could have been litigated in the prior repre- sentation proceeding, and Respondent does not offer to adduce at a hearing any newly discovered or previ- ously 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 prop- erly 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: I. THE BUSINESS OF RESPONDENT Respondent is, and has been at all times material ,herein, a Rhode Island corporation engaged in the operation of a nursing home and has gross revenues in excess of and annually pur- chases goods and materials valued in excess of from points located directly outside the State of Rhode Island. At all times mentioned herein, Re- spondent has maintained its principal office and place of business at 80 Morgan Avenue, Johnston, Rhode Island. We find, on the basis of the foregoing, that Respon- dent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section and (7) of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein. Pittsburgh Co. v. 313 U.S. 162 (1941); Rules and Regulation8 of the Board. Sees. and 2(5) 111. 9(b) 1, 9(a) Reficral 8(a)(5) UNFAIR 111, 8(a)(5) a~propriate Poultty (1962), F.2d 1964), Burnett 149 (1964), F.2d 2(6) 2(5) 652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 11. THE LABOR ORGANIZATION INVOLVED District 1199 Rhode Island, National Union of Hospital and Health Care Employees, RWDSU, AFL-CIO, is a labor organization within the mean- ing of Section of the Act. 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 of the Act: (b) All licensed practical nurses, orderlies, nurses aides, housekeeping employees, dietary employees, maintenance employees, activities aide and unit ward clerks employed by Respon- dent at its 80 Morgan Avenue, Johnston, Rhode Island location excluding all business office cleri- cal employees, administrator, assistant adminis- trator, director of nursing, assistant director of nursing (staff development director), chef (food service director), activities director, housekeep- ing supervisor, medical records aide, guards and supervisors as defined in the Act. 2. The certification On May 25, 1978, a majority of the employees of Respondent in said unit, in a secret-ballot election conducted under the supervision of the Regional Di- rector for Region designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the col- lective-bargaining representative of the employees in said unit on September 12, 1978, and the Union con- tinues to be such exclusive representative within the meaning of Section of the Act. B. The Request To Bargain and Respondent's Commencing on or about September 19, 1978, and at all times thereafter, the Union has requested Re- spondent to bargain collectively with it as the exclu- sive collective-bargaining representative of all the em- ployees in the above-described unit. Commencing on or about September 19, 1978, 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 September 19, 1978, and at all times thereafter, re- fused to bargain collectively with the Union as the exclusive representative of the employees in the ap- propriate unit, and by such refusal, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section and (1) of the Act. IV. THE EFFECT OF THE LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section above, occumng in connection with its operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and com- merce among the several 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 mean- ing of Section 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 ap- propriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. In order to insure that the employees in the appro- priate unit will be accorded the services of their se- lected bargaining agent for the period provided by law, we shall construe the initial period of certifica- tion as beginning on the date Respondent commences to bargain in good faith with the Union as the recog- nized bargaining representative in the unit. See Mar-Jac Company, Inc., 136 NLRB 785 (1962); Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229 enfd. 328 600 (5th Cir. cert. denied 379 U. S. 8 17 (1964); Construction Company, NLRB 1419, 1421 enfd. 350 57 (10th Cir. 1965). The Board, upon the basis of the foregoing facts and the entire record makes the following: 1. Morgan Health Care Center, Inc., is an em- ployer engaged in commerce within the meaning of Section and (7) of the Act. 2. District 1199 Rhode Island, National Union of Hospital and Health Care Employees, RWDSU, AFL-CIO, is a labor organization within the mean- ing of Section of the Act. 3. All licensed practical nurses, orderlies, nurses aides, housekeeping employees, dietary employees, maintenance employees, activities aide, and unit 9(b) 9(a) 8(a)(5) 8(a)(l) 2(6) (b) affnnative "Appendi~."~ k e n ta.ken 1qc) Rela. 1 the eveat cb.1 this enforced r Judgment r United Sutm Coun Apperls, w& mding "Pawl Ordcr the Nrtionrl Relrtioar Baud" lhll rad "hied Rvnunt r the Uniwl Shtm Cwrt Appulr Enforcing m d the National Rclatioru Board." NOTICE To POSTED ORDER NATIONAL LABOR RELATIONS BOARD 653 MORGAN HEALTH CARE CENTER, INC. ward clerks employed by the Respondent at its 80 Morgan Avenue, Johnston, Rhode Island, location, excluding all business office clerical employees, ad- ministrator, assistant administrator, director of nurs- ing, assistant director of nursing (staff development director), chef (food service director), activities direc- tor, housekeeping supervisor, medical records aide, guards, and supervisors as defined in the Act, consti- tute a unit appropriate for the purposes of collective bargaining within the meaning of Section of the Act. 4. Since September 12, 1978, the above-named la- bor 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 of the Act. 5. By refusing on or about September 19, 1978, and at all times thereafter, to bargain collectively with the above-named labor organization as the ex- clusive 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 of the Act. 6. By the aforesaid refusal to bargain, Respondent has interfered with, restrained, and coerced, and is interfering with, restraining and coercing, employees in the exercise of the rights guaranteed to them in Section 7 of the Act and thereby has engaged in and is engaging in unfair labor practices within the mean- ing of Section of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section and (7) of the Act. ORDER Pursuant to Section of the National Labor Relations Act, as amended, the National Labor tions Board hereby orders that Respondent, Morgan Health Care Center, Inc., Johnston, Rhode Island, 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 con- ditions of employment with District 199 Rhode Is- land, National Union of Hospital and Health Care Employees, RWDSU, AFL-CIO, as the exclusive bargaining representative of its employees in the fol- lowing appropriate unit: All licensed practical nurses, orderlies, nurses aides, housekeeping employees, dietary employ- ees, maintenance employees, activities aide and unit ward clerks employed by the Respondent at its 80 Morgan Avenue, Johnston, Rhode Island location excluding all business office clerical em- ployees, administrator, assistant administrator, director of nursing, assistant director of nursing (staff development director), chef (food service director), activities director, housekeeping super- visor, medical records aide, guards and supervi- sors as defined in the Act. 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. 2. Take the following 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 an4 if an understand- ing is reached, embody such understanding in a signed agreement. (b) Post at its 80 Morgan Avenue, Johnston, Rhode Island, location copies of the attached notice marked 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 re- ceipt thereof, and be maintained by it for 60 consecu- tive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, de- faced, or covered by any other material. (c) Notify the Regional Director for Region 1, in writing, within 20 days from the date of this Order, what steps have to comply herewith. * In Order is by of of the in the notice by of Labor to Judgment of of Order Labor APPENDIX EMPLOYEES BY OF THE 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 Dis- trict 1 199 Rhode Island, National Union of Hos- pital and Health Care Employees, RWDSU, AFL-CIO, as the exclusive representative of the employees in the bargaining unit described be- low. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees RELATlONS maintlenance Rhode service 654 DECISIONS OF NATIONAL LABOR 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 representa- tive of all employees in the bargaining unit de- scribed 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 agree- ment. The bargaining unit is: All licensed practical nurses, orderlies, nurses aides, housekeeping employees, dietary em- BOARD ployees, employees, activities aide and unit ward clerks employed by us at our 80 Morgan Avenue, Johnston, Is- land, location excluding all business office clerical employees, administrator, assistant ad- ministrator, director of nursing, assistant di- rector of nursing (staff development director), chef (food director), activities director, housekeeping supervisor, medical records aide, guards and supervisors as defined in the Act.