Hale Nani Health Center

242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Beverly Enterprises-Hawaii, Inc. d/b/a Hale Nani Health Center and Collective Bargaining Orga- nization of the Hawaii Nurses Association. Case 37-CA-2349 10 April 1986 DECISION AND ORDER By CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND STEPHENS Upon a charge filed by the Union 31 July 1985, the General Counsel of the National Labor Rela- tions Board issued a complaint 12 September 1985, as amended 22 October 1985 and 4 November 1985, against the Company, the Respondent , alleg- ing that it has violated Section 8(a)(5) and (1) of the National Labor Relations Act. The amended complaint alleges that on 17 May 1985, following a Board election in Case 37-RC- 2811, the Union was certified as the exclusive col- lective-bargaining representative of the Company's employees in the unit found appropriate. (Official notice is taken of the "record" in the representation proceeding as defined in the Board's Rules and Regulations, Secs. 102.68 and 102.69(g), amended Sept. 9, 1981, 46 Fed.Reg. 45922 (1981); Frontier Hotel, 265 NLRB 343 (1982).) The amended com- plaint further alleges that since 30 July 1985, the Company has refused to bargain with the Union. On 27 September 1985 and 13 November 1985 the Company filed its answers admitting in part and denying in part the allegations in the amended complaint. On 24 January 1986 the General Counsel filed a Motion for Summary Judgment. On 28 January 1986 the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Company filed a response. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. Ruling on Motion for Summary Judgment In its answers to the amended complaint, the Company denies its refusal to recognize and bar- gain with the Union as the exclusive collective-bar- gaining representative of its employees in a unit of licensed practical nurses and registered nurses, and attacks the Union's certification in the underlying representation proceeding. The Company maintains that all the licensed practical nurses and registered nurses are statutory supervisors, and that the United Public Workers, Local 646 claims to repre- sent the licensed practical nurses. The General Counsel argues that all material issues were, or should have been, raised in the underlying repre- sentation proceeding. We agree with the General Counsel. The record, including the record in Case 37- RC-281 1, reveals that an election was held 10 May 1985 pursuant to a stipulated election agreement. The tally of ballots shows that, of approximately 29 eligible voters, 22 cast ballots for and 5 cast ballots against the Union. There was one challenged ballot, insufficient in number to affect the results of the election. No objections to the election or con- duct affecting the election were filed. On 17 May 1985 the Union was certified as the exclusive col- lective-bargaining representative of the Company's employees in the stipulated unit. On 6 June 1985 the Union requested by letter that the Company recognize and bargain with it pursuant to the certification issued in Case 37-RC- 2811. Since 30 July 1985, the Company has refused to bargain. It is well settled that in the absence of newly dis- covered and 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 that were or could have been litigated in a prior representation proceeding. See Pittsburgh Glass Co. v. NLRB, 313 U.S. 146, 162 (1941); Secs. 102.67(f) and 102.69(c) of the Board's Rules and Regulations.1 All issues raised by the Company were or could have been litigated in the prior representation pro- ceeding. The Company does not offer to adduce at a hearing any newly discovered and previously un- available evidence, nor does it allege any special circumstances that would require the Board to re- examine the decision made in the representation proceeding. We therefore find that the Company has not raised any issue that is properly litigable in this unfair labor practice proceeding. Accordingly we grant the Motion for Summary Judgment. On the entire record, the Board makes the fol- lowing FINDINGS OF FACT 1. JURISDICTION The Company, a California corporation, pro- vides nursing home care at its facility in Honolulu, Hawaii, where during calendar year 1984 it derived gross revenues in excess of $1 million, and pur- chased and received goods and materials valued in excess of $50,000 directly from points outside the ' Regarding the Respondent's claim that United Public Workers, Local 646, represents the licensed practical nurses, we note that it is undisputed that Local 646 was notified of the election proceeding and chose not to participate 279 NLRB No. 31 HALE NANI HEALTH CENTER State of Hawaii. We find that the Company is an employer engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held 10 May 1985 the Union was certified 17 May 1985 as the collective- bargaining representative of the employees in the following appropriate unit: Including all full-time and regular part-time registered nurses and licensed practical nurses. Excluding managerial and confidential employ- ees, guards and supervisors as defined in the Act. The Union continues to be the exclusive represent- ative under Section 9(a) of the Act. B. Refusal to Bargain Since 6 June 1985 the Union has requested the Company to bargain, and since 30 July 1985 the Company has refused. We find that this refusal constitutes an unlawful refusal to bargain in viola- tion of Section 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW By refusing on and after 30 July 1985 to bargain with the Union as the exclusive collective-bargain- ing representative of employees in the appropriate unit, the Company has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has violated Section 8(a)(5) and (1) of the Act, we shall order it to cease and desist, to bargain on request with the Union, and, if an understanding is reached, to embody the understanding in a signed agreement. To ensure that the employees are accorded the services of their selected bargaining agent for the period provided by law, we shall construe the ini- tial period of the certification as beginning the date the Respondent begins to bargain in good faith with the Union. Mar-Jac Poultry Co., 136 NLRB 785 (1962); Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). 243 ORDER The National Labor Relations Board orders that the Respondent, Beverly Enterprises-Hawaii, Inc. d/b/a Hale Nani Health Center, Honolulu, Hawaii, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Collective Bargain- ing Organization of the Hawaii Nurses Association as the exclusive bargaining representative of the employees in the bargaining unit. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) On request, bargain with the Union as the ex- clusive representative of the employees in the fol- lowing appropriate unit on terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement: Including all full-time and regular part-time registered nurses and licensed practical nurses. Excluding managerial and confidential employ- ees, guards and supervisors as defined in the Act. (b) Post at its facility in Honolulu, Hawaii, copies of the attached notice marked "Appendix."2 Copies of the notice, on forms provided by the Re- gional Director for Region 20, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 2 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 Nation- al 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 " 244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE To EMPLOYEES 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 ordered us to post and abide by this notice. WE WILL NOT refuse to bargain with Collective Bargaining Organization of the Hawaii Nurses As- sociation as the exclusive representative of the em- ployees in the bargaining unit. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, bargain with the Union and put in writing and sign any agreement reached on terms and conditions of employment for our employees in the bargaining unit: Including all full-time and regular part-time registered nurses and licensed practical nurses. Excluding managerial and confidential employ- ees, guards and supervisors as defined in the Act. BEVERLY ENTERPRISES-HAWAII, INC. D/B/A HALE NANI HEALTH CENTER