Cumberland Nursing & Convalescent Center

290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cumberland Nursing & Convalescent Center and Retail Store Employees Union, Local 692, United Food & Commercial Workers Interna- tional Union, AFL-CIO. Case 5-CA-12069 August 18, 1980 DECISION AND ORDER BY CHAIRMAN FANNING ANI) MlMHEIRS JENKINS ANI) PENEI.IO Upon a charge filed on March 28, 1980, by Retail Store Employees Union, Local 692, United Food & Commercial Workers International Union, AFL-CIO, herein called the Union, and duly served on Cumberland Nursing & Convalescent Center, herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 5, issued a com- plaint and notice of hearing on May 1, 1980, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor prac- tices 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 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 March II, 1980, following a Board election in Case 5-KC- 10889, the Union was duly certified as the exclu- sive collective-bargaining representative of Re- spondent's employees in the unit found appropri- ate;' and that, commencing on or about March 14, 1980, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bar- gaining representative, although the Union has re- quested and is requesting it to do so. On May 9, 1980, Respondent filed its answer to the complaint admitting in part, and denying in part, the allega- tions in the complaint. On May 23, 1980, counsel for the General Coun- sel filed directly with the Board a Motion for Sum- mary Judgment. Subsequently, on May 30, 1980, the Board issued an order transferring the proceed- ing to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respondent I ()ffical IlI)tCC is akell f hc record i lthe reLpresenltati]li prceed- lg. (ClUse 5 RC 1()8'). as the term "record" is defined ill Scs 102 68 a.id )12 h9(g) lof the Biiard's Rules and Regul tionl, Seri-c 8, a. anierided See 1. I l/eI ctiriei'ml,. i, I. 166 NlRH '18 ( 17), lend 188 1 2d 683 (4th (ir 1'h8); (,ldckln I', fver g (.. 7 Nl.RBI 151 (1967), erld 41S 1 2d 2 (5th ('it 1969 rr),h rp ( s Poref/o, 268 s Spp 573 (1) (' Va i9h7) ilil/tt (e ,/). Ih4 NI R 17 8 X (Iq7), ciufd 3'7 1: 2d Q1 (7th lr I')h); Sc 9(d) of he NI RA, a. amenlded 251 NLRB No. 42 thereafter filed a motion in opposition to the Gen- eral Counsel's Motion for Summary Judgment and a supporting memorandum. 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 answer to the complaint and response to the Notice To Show Cause, Respondent denies the validity of the Union's certification and asserts that the election should have been set aside because of union misconduct, or that a hearing should have been conducted concerning the objections to the election. A review of the record reveals that, pursuant to a Stipulation for Certification Upon Consent Elec- tion, an election was conducted on September 7, 1979, in the agreed-upon unit. Of 92 ballots cast, 48 were for, and 28 were against, the Union; there were 16 challenged ballots, an insufficient number to affect the election. Respondent filed timely ob- jections alleging, inter alia, substantial misrepresen- tations of fact and electioneering during the polling period by the Union and union adherents. On Oc- tober 16, 1979, the Regional Director issued a Report on Objections recommending that Respond- ent's objections be overruled in their entirety and that an appropriate Certification of Representative issue. On October 28, 1979, Respondent filed with the Board exceptions to the Regional Director's Report on Objections. The Board issued its Deci- sion and Certification of Representative on March 11, 1980.2 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. 3 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 - See 24N NlRBi 322 Melllihcr Peiilli lullew s that in ixcrruling the ihjleclioris hinll illg al- leged r.imsreprecntation hlie did ... for Ihe rclsons eli fiorth in Shopping kur: /'od ,herA. Irs . 22 NRB 11 119'77). the principles of hich lie si)ll adhclie., it Soee his disusetling pil n i l cralu/ Knit ,¢ (aiJor- nir:. /it, 231 NIRiB h l( 1978) See Ittd',CIur P h, ;a , (u e . , I R B. 11 1 46 1 62 (19411 Rules and Rcgilallktlns )I the oard. Secl 1012 67(1) ard 102 6f9(c) CUMBERLAND NURSING & CONVALESCENT CENTER 291 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 is a Maryland corporation engaged in the operation of a nursing home in Cumberland, Maryland. During the preceding 12 months, Re- spondent had gross revenues in excess of $100,000. During this same period, Respondent purchased and received in interstate commerce materials and supplies valued in excess of $50,000 from points lo- cated outside the State of Maryland. 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. 11. THE LABOR ORGANIZATION INVOLVED Retail Store Employees Union, Local 692, United Food & Commercial Workers International Union, 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 full time and regular part time service and maintenance employees employed by the Em- ployer at its Cumberland, Maryland location, including nurses' aides, L.P.N.'s, orderlies, Di- etary, Housekeeping, Laundry, and Mainte- nance employees, but excluding R.N.'s, office clerical employees, guards and supervisors as defined in the Act. 2. The certification On September 7, 1979, a majority of the employ- ees of Respondent in said unit, in a secret-ballot election conducted under the supervision of the Regional Director for Region 5, designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the collective-bargaining repre- sentative of the employees in said unit on March 11, 1980, and the Union continues to be such exclu- sive representative within the meaning of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about March 13, 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 March 14, 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 March 14, 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 III, above, occurring in connection with its oper- ations described in section I, 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 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 292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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. Cumberland Nursing & Convalescent Center is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Retail Store Employees Union, Local 692, United Food & Commercial Workers International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All full time and regular part time service and maintenance employees employed by the Employer at its Cumberland, Maryland, location, including nurses' aides, L.P.N.'s, orderlies, Dietary, House- keeping, Laundry, and Maintenance employees, but excluding R.N.'s, office clerical employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9(b) of the Act. 4. Since March 11, 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 March 14, 1980, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclu- sive 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, Respond- ent 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)(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 Re- lations Board hereby orders that the Respondent, Cumberland Nursing and Convalescent Center, Cumberland, Maryland, its officers, agents, succes- sors, 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 Retail Store Em- ployees Union, Local 692, United Food & Com- mercial Workers International Union, AFL-CIO, as the exclusive bargaining representative of its em- ployees in the following appropriate unit: All full time and regular part time service and maintenance employees employed by the Em- ployer at its Cumberland, Maryland location, including nurses' aides, L.P.N.'s, Orderlies, Di- etary, Housekeeping, Laundry, and Mainte- nance employees, but excluding R.N.'s, office clerical employees, 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 Cumberland, Maryland, facility, copies of the attached notice marked "Appendix." 4 Copies of said notice, on forms provided by the Regional Director for Region 5, 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 Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 5, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 4 In the event that his Order is enforced by a Judgment of a United States Courl of Appeals. the words in the notice reading "Posted By Order of the National Labor Relations Hoard" shall read "'osted Pursu- alt to a Judgment of the United States Corl olf Appeals Enforcing and Order of theNational lahor Relations Board" CUMBERLAND NURSING & CONVALESCENT CENTER 293 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 Retail Store Employees Union, Local 692, United Food & Commercial Workers In- ternational Union, 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 repre- sentative of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours, and other terms and condi- tions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All full time and regular part time service and maintenance employees employed by us at our Cumberland, Maryland location, in- cluding nurses' aides, L.P.N.'s, orderlies, Di- etary, Housekeeping, Laundry, and Mainte- nance employees, but excluding R.N.'s office clerical employees, guards and supervisors as defined in the Act. CUMBERLAND NURSING & CONVA- LESCENT CENTER