Ryal Convalescent Hospital, Inc.

ROYAL CONVALESCENT HOSPITAL, INC. Royal Convalescent Hospital, Inc. and Service Em- ployees International Union, Local No. 102, AFl-CIO. Case 21-CA-19109 January 14, 1981 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND TRUESDALE Upon a charge filed on May 6, 1980, by Service Employees International Union, Local No. 102, AFL-CIO, herein called the Union, and duly served on Royal Convalescent Hospital, Inc., herein called Respondent, the General Counsel of the National Labor Relations Board, by the Re- gional Director for Region 21, issued a complaint on May 15, 1980, 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 the com- plaint and notice of hearing before an administra- tive 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 January 25, 1980, following a Board election in Case 21-RC- 16104, the Union was duly certified as the exclu- sive collective-bargaining representative of Respon- dent's employees in the unit found appropriate;' and that, commencing on or about April 21, 1980, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collec- tively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On June 6, 1980, Re- spondent filed its answer to the complaint admit- ting in part, and denying in part, the allegations in the complaint, and on November 14, 1980, Respon- dent filed an amended answer to said complaint. On December 3, 1980, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on December 9, 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 Sum- mary Judgment should not be granted. Official notice is taken of the record in the representation proceed ing, Case 21-RC-16104, as the term "record" is defined in Seces. 102 68 and 102.69(g) of the Board's Rules and Regulations. Series 8, as amended See LTV' Elecrosvslems. Inc., 166 NlRB 938 (1967), enfd .388X 2d 683 (4th Cir. 1968): Golden Age Beverage Co.. 167 NLRB 151 (19 67), enfd 415 F.2d 26 (5th Cir. 1969); Interrype Co i Penelh. 269 F Supp 573 (D.C.Va. 1967); Folltt Corp. 164 NLRB 378 (1967), enfl 397 F 2d 9 (71h Cir. 1968); Sec. 9(d) of the NLRA. as amended. 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 amended answer to the complaint, Respon- dent maintains that the certification is invalid be- cause the election was tainted by union miscon- duct. In addition, Respondent contends that the Union's primary motive for seeking to organize was to antagonize Respondent's majority share- holder because of his religious beliefs. In the Motion for Summary Judgment, the General Coun- sel argues that Respondent's amended answer at- tempts to relitigate issues that were raised and de- termined by the Board in the underlying represen- tation case. We agree with the General Counsel. Our review of the record, including that in Case 21-RC-16104, reveals that, pursuant to a Decision and Direction of Election issued by the Regional Director, an election was held on December 18, 1979. The tally of ballots showed 20 votes cast for Petitioner, and 13 against. Three ballots were chal- lenged, an insufficient number to affect the results of the election.On December 26, 1979, Respondent filed objections to the election, alleging that, imme- diately prior to the election, agents of the Union disseminated grossly erroneous information to eligi- ble employees concerning the benefits voting for the Union would guarantee. On January 25, 1980, the Regional Director issued a Supplemental Deci- sion and Certification of Representative in which Respondent's objections were overruled in their en- tirety. On February 8, 1980, Respondent filed with the Board a request for review of the Regional Di- rector's Supplemental Decision and Certification of Representative. In addition to the original objec- tions, Respondent claimed that laboratory condi- tions were destroyed by inflammatory statements dealing with race and religions which were alleg- edly made at a meeting of unit bargaining employ- ees preceding the election. The Board, by tele- graphic order dated February 15, 1980. denied Re- spondent's request for review. 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. 2 z See Par, igh Plai, hi,, (o . . R B, 13 1 4 146, 162 ( 141): Rule, and Rguila1tllos I't the Btoaird. Sees 02 67(t) and 112 69(c) 254 NLRB No. 59 497 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 I. THE BUSINESS OF RESPONDENT Respondent, a California corporation, is engaged in the operation of a nursing and convalescent fa- cility in Brawley, California. In the course and conduct of its business operations, Respondent de- rived gross annual revenues in excess of $100,000, and during the same period of time purchased and received goods valued in excess of $5,000, which products originated outside the State of California. 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 Service Employees International Union, Local No. 102, 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 service and maintenance employees, in- cluding food service employees, maintenance employees, nursing assistants, and housekeep- ers employed at Respondent's Brawley, Cali- fornia, facility; excluding all other employees, technical employees, business office clerical employees, professional employees, registered nurses, physicians, guards, and supervisors as defined in the Act. 2. The certification On December 18, 1979, 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 21, 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 January 25, 1980, 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 April 21, 1980, 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. Com- mencing on or about April 21, 1980, and continu- ing at all times thereafter to date, Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive representa- tive for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since April 21, 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 II, above, occurring in connection with its oper- ations described in section 1, 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 498 ROYAL CONVALESCENT HOSPITAL, INC. 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). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Royal Convalescent Hospital, Inc., is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Service Employees International Union, Local No. 102, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All service and maintenance employees, in- cluding food service employees, maintenance em- ployees, nursing assistants, and housekeepers em- ployed at Respondent's Brawley, California, facili- ty; excluding all other employees, technical em- ployees, business office clerical employees, profes- sional employees, registered nurses, physicians, guards, and supervisors as defined in the Act, con- stitute a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act. 4. Since January 25, 1980, 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 April 21, 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)(l) 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, Royal Convalescent Hospital, Inc., Brawley, Cali- fornia, 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 Service Employees International Union, Local No. 102, AFL-CIO, as the exclusive bargaining representative of its em- ployees in the following appropriate unit: All service and maintenance employees, in- cluding food service employees, maintenance employees, nursing assistants, and housekeep- ers employed at Respondent's Brawley, Cali- fornia, facility; excluding all other employees, technical employees, business office clerical employees, professional employees, registered nurses, physicians, 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 its Brawley, California, facility copies of the attached notice marked "Appendix." 3 Copies of said notice, on forms provided by the Regional Director for Region 21, 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 :' I l the C I hat t his (Ordcr Is enforced hb a Judgment of a Lnited States Cturt of Appeals. the oirds i ther notlce reading "'o',slcd by Order orf Ihe Ntilnal I habor Relationl , Board" shall read "Posted Pursu- aill to a Judgnetil of the lillcd State', Court of Appeals ' nforcing an ()lder of the Ntional labo r Relations Board 499 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 21, in writing, within 20 days from the date of this Order, what steps have been taken to comply here- with. 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 Service Employees International Union, Local No. 102, AFL-CIO, as the exclusive representative of the employees in the bargain- ing 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 service and maintenance employees, in- cluding food service employees, mainte- nance employees, nursing assistants, and housekeepers employed at Respondent's Brawley, California, facility; excluding all other employees, technical employees, busi- ness office clerical employees, professional employees, registered nurses, physicians, guards, and supervisors as defined in the Act. ROYAL CONVALESCENT HOSPITAL, INC. 500