Hotel & Restaurant Employees Local 1115 (West Lawrence Care Center)

409 312 NLRB No. 73 HOTEL & RESTAURANT EMPLOYEES LOCAL 1115 (WEST LAWRENCE CARE CENTER) 1 West Lawrence Care Center, 305 NLRB 212 (1991). 2 The Respondent and West Lawrence filed requests for review of the Regional Director’s Supplemental Decision on Objections and Certification of Respresentative. On June 1, 1992, the Board (Mem- ber Devaney dissenting) denied the requests for review. 1115 Nursing Home and Service Employees Union, Hotel Employees Restaurant Employees, AFL– CIO and West Lawrence Care Center and Local 1199, Drug, Hospital and Health Care Employees Union, Party in Interest. Case 29– CP–571 September 24, 1993 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS DEVANEY AND RAUDABAUGH On August 6, 1992, the General Counsel of the Na- tional Labor Relations Board issued a complaint alleg- ing that the Respondent has violated Section 8(b)(7)(B) of the National Labor Relations Act by threatening to picket West Lawrence Care Center, an employer, with an object of forcing or requiring West Lawrence to recognize or bargain with the Respondent as the rep- resentative of certain of its employees, and of forcing those employees to accept or select the Respondent as their collective-bargaining representative, notwithstand- ing that a valid election and certification under Section 9(c) of the Act had been conducted within the previous 12 months in Cases 29–RC–7396 and 29–RD–639. (Official notice is taken of the ‘‘record’’ in the rep- resentation proceeding as defined in the Board’s Rules and Regulations, Secs. 102.68 and 102.69(g); Frontier Hotel, 265 NLRB 343 (1982).) The Respondent filed its answer admitting in part and denying in part the al- legations in the complaint and raising affirmative de- fenses. On March 15, 1993, the General Counsel filed a Motion for Summary Judgment. On March 17, 1993, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the mo- tion should not be granted. The Respondent filed a re- sponse. Ruling on Motion for Summary Judgment In its response to the motion, the Respondent admits that, since about July 23, 1992, it has threatened to picket West Lawrence in furtherance of its demand that West Lawrence recognize and bargain with the Respondent as the representative of West Lawrence’s employees in the unit found appropriate in Cases 29– RC–7396 and 29–RD–639,1 notwithstanding that an- other union (Local 1199, the Party in Interest) has been certified as the representative of the employees in question within the last 12 months. The Respondent at- tacks the validity of the election and certification on the basis of its election objections, the Board’s unit de- termination, contract bar, and the passage of time be- tween the election and the issuance of the certification in the representation proceeding. All representation issues raised by the Respondent were or could have been litigated in the prior represen- tation proceeding. The Respondent does not offer to adduce at a hearing any newly discovered and pre- viously unavailable evidence, nor does it allege any special circumstances that would require the Board to reexamine the decision made in the representation pro- ceeding. We therefore find that the Respondent has not raised any representation issue that is properly litigable in this unfair labor practice proceeding. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). We therefore grant the Motion for Summary Judgment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION The Respondent and Local 1199 are labor organiza- tions. West Lawrence Care Center, a New York cor- poration, operates a nursing home in Far Rockaway, New York. During the year immediately preceding the issuance of the complaint, a period representative of its annual operations generally, West Lawrence derived gross annual revenues in excess of $100,000 in the course and conduct of the operations described above, and purchased and caused to be transported and deliv- ered to that facility, in interstate commerce, directly from points outside the State of New York, goods, supplies, and materials valued in excess of $50,000. We find that the Respondent and Local 1199 are labor organizations within the meaning of Section 2(5) of the Act, and that West Lawrence is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held on May 17, 1990, Local 1199 was certified on April 15, 1992,2 as the collec- tive-bargaining representative of the employees in the following appropriate unit: All full-time and regular part-time nonprofessional employees and licensed practical nurses employed by West Lawrence Care Center, Inc., excluding all registered nurses, professional employees, of- fice clerical employees, guards and supervisors as defined in the Act. 410 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 3 Although the initial threat to picket was made more than 12 months after the day of the balloting, it occurred only 3 months after the Regional Director certified Local 1199, and only a few weeks after the Board denied review of the Regional Director’s decision. The Board has long held that, for purposes of determining whether Sec. 8(b)(7)(B) has been violated, the 12-month period begins to run on the certification date, not the date of the balloting. Retail Clerks Local 692 (Irvins, Inc.), 134 NLRB 686, 688–690 (1961). 4 When Sec. 8(b)(7)(B) has been violated, the Board orders the union to refrain from picketing or threatening to picket for recog- nitional (or, if applicable, organizational) purposes for 12 months from the date the union ceases its unlawful activities. Retail Clerks Local 219 (National Food Stores), 134 NLRB 1680, 1685 and fn. 4 (1961); Irvins, Inc., supra, 134 NLRB at 691. As the Respondent has admitted that its threat to picket is, in effect, a continuing one that has not been rescinded, we find that the Respondent will not have ceased its unlawful activities until it posts the notice stating that it will cease and desist from further violations. 5 If 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.’’ B. Threats to Picket Since about July 23, 1992, the Respondent has threatened to picket West Lawrence in support of the Respondent’s demand that West Lawrence recognize and bargain with it as the representative of the employ- ees in the above unit, notwithstanding that a valid elec- tion had been held, and Local 1199 certified as those employees’ representative, within the preceding 12 months.3 Discussion and Conclusions Section 8(b)(7)(B) provides that (b) It shall be an unfair labor practice for a labor organization or its agents— . . . . (7) . . . to . . . threaten to picket or cause to be picketed, any employer where an object thereof is forcing or requiring an employer to recognize or bargain with a labor organization as the rep- resentative of his employees . . . unless such labor organization is currently certified as the rep- resentative of such employees: . . . . (B) where within the preceding twelve months a valid election under section 9(c) of this Act has been conducted[.] The Respondent admits that it has threatened, on and after July 23, 1992, to picket West Lawrence in support of its demand that the Employer recognize and bargain with it as the representative of employees in the unit described above, when a valid election had been held within the previous 12 months which it did not win. We find that this threat constitutes an unlaw- ful threat to picket in violation of Section 8(b)(7)(B) of the Act, and is an unfair labor practice affecting commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in unfair labor practices within the meaning of Section 8(b)(7)(B), we shall order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. Specifically, we shall order the Respondent to refrain from picketing West Lawrence Care Center for recognitional purposes for 1 year fol- lowing the posting of the attached notice,4 and from picketing West Lawrence for recognitional purposes when, within the preceding 12 months, a valid election has been conducted under Section 9(c) which the Re- spondent did not win. ORDER The National Labor Relations Board orders that the Respondent, 1115 Nursing Home and Service Employ- ees Union, Hotel Employees Restaurant Employees, AFL–CIO, its officers, agents, and representatives, shall 1. Cease and desist from (a) Threatening to picket West Lawrence Care Cen- ter for a period of 1 year following the posting of the attached notice, when an object of the threat is forcing or requiring West Lawrence to recognize or bargain with the Respondent as the representative of its em- ployees in the following unit: All full-time and regular part-time nonprofessional employees and licensed practical nurses employed by West Lawrence Care Center, Inc., excluding all registered nurses, professional employees, of- fice clerical employees, guards and supervisors as defined in the Act. (b) Threatening to picket West Lawrence Care Cen- ter for any of the above objects when, within the pre- ceding 12 months, a valid election under Section 9(c) has been held which the Respondent did not win. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Post at its business office and meeting halls cop- ies of the attached notice marked ‘‘Appendix.’’5 Cop- ies of the notice, on forms provided by the Regional Director for Region 29, after being signed by the Re- spondent’s authorized representative, shall be posted by the Respondent immediately upon receipt and main- tained for 60 consecutive days in conspicuous places including all places where notices to members are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. 411 HOTEL & RESTAURANT EMPLOYEES LOCAL 1115 (WEST LAWRENCE CARE CENTER) (b) Furnish the Regional Director with signed copies of the notice for posting by West Lawrence Care Cen- ter, if the employer is willing to post them. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. MEMBER DEVANEY, dissenting. For the reasons set forth in my dissent in the under- lying representation proceeding, West Lawrence Care Center, 305 NLRB 212 (1991), I would have dis- missed the representation petitions on which the elec- tion was held. Therefore, I would deny the General Counsel’s Motion for Summary Judgment and, as re- quested by the Respondent Union, would dismiss the complaint in this proceeding on the grounds that a valid election has not been conducted within the mean- ing of Section 8(b)(7)(B) of the Act. APPENDIX NOTICE TO EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT threaten to picket West Lawrence Care Center for a period of 1 year from this date, when an object of the threat is to force or require the Employer to recognize or bargain with us as the rep- resentative of its employees in the following bargain- ing unit: All full-time and regular part-time nonprofessional employees and licensed practical nurses employed by West Lawrence Care Center, Inc., excluding all registered nurses, professional employees, of- fice clerical employees, guards and supervisors as defined in the Act. WE WILL NOT threaten to picket West Lawrence Care Center for the above objects when, within the preceding 12 months, a valid election has been held that we did not win. 1115 NURSING HOME AND SERVICE EM- PLOYEES UNION, HOTEL EMPLOYEES RESTAURANT EMPLOYEES, AFL–CIO