Americana Health Care Center of Decatur

National Labor Relations Board - Board Decisions

Sep 28, 1979

245 N.L.R.B. 730 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECA, A Limited Partnership d/b/a Americana
Health Care Center of Decatur and Laborers' Inter-
national Union of North America, AFL-CIO, Local
Union #1348. Case 10-CA- 14660
September 28, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PENEI.I.O
AND TRUESDALE
Upon a charge filed on May 14, 1979, by Laborers'
International Union of North America, AFL-CIO,
Local Union #1348, herein called the Union, and
duly served on DECA, A Limited Partnership d/b/a
Americana Health Care Center of Decatur, herein
called Respondent, the General Counsel of the Na-
tional Labor Relations Board, by the Regional Direc-
tor for Region 10, issued a complaint on June 13,
1979, 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, 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 com-
plaint alleges in substance that on March 28, 1979,
following a Board election in Case 10-RC- 11473, the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate;' and that, commencing
on or about April 17, 1979, and at all times thereafter,
the Union requested Respondent to bargain collec-
tively with respect to rates of pay, wages, hours of
employment, and other terms and conditions of em-
ployment. On or about April 17, 1979, and at all
times thereafter, Respondent refused and has contin-
ued to refuse to bargain collectively with the Union
as the exclusive representative of all employees in the
unit described below. On June 21, 1979, Respondent
filed its answer to the complaint admitting in part,
and denying in part, the allegations in the complaint.
On August 6, 1979, counsel for the General Coun-
sel filed with the Board, a motion entitled "Motion to
Transfer Case to and Continue Proceeding Before the
I Official notice is taken of the record in the representation proceeding,
Case 10-RC-11473, as the term "record" is defined in Secs. 102.68 and
102.69(g) of the Board's Rules and Regulations, Series 8, as amended. See
LTV Electrosysrems, Inc., 166 NLRB 938 (1967). enfd. 388 F.2d 683 (4th Cir.
1968): Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26
(5th Cir. 1969) Iniertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va. 1967);
Follett Corp.., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968); Sec.
9(d) of the NLRA, as amended.
Board and For Summary Judgment," with exhibits
attached. Subsequently, on August 10, 1979, the
Board issued an Order transferring 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 a re-
sponse to Notice To Show Cause.
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 in its response to
the Notice To Show Cause, Respondent admits its
refusal to bargain. However, it contends that it is not
obligated to bargain because the "Union was unlaw-
fully certified." Thus, Respondent argues that the
Board improperly overruled its objections to conduct
affecting the election. In this regard, Respondent con-
tends that the Union's agent engaged in electioneer-
ing activities in close proximity to the open polls. It
further contends that the Board agent responsible for
conducting the election prejudicially refused to take
adequate measures to insure broad voter participa-
tion in the election. The General Counsel contends
Respondent is improperly seeking to relitigate issues
which were, or could have been, raised in the related
representation proceeding. We agree with the Gen-
eral Counsel.
Review of the record herein, including the record in
Case 10-RC-11473, reveals that on July 5, 1978, in
the representation proceeding, the Union sought to
represent certain employees of Respondent, and that
pursuant to a Stipulation for Certification Upon Con-
sent Election, approved by the Acting Regional Di-
rector for Region 10, on August 8, 1978, an election
by secret ballot was conducted on September 6, 1978,
among the employees in the unit described below.
The tally of ballots revealed that 16 ballots were cast
for, and 13 against, the Union. On September 12,
1978, Respondent filed objections to conduct affect-
ing the results of the election. After an investigation
of said objections, the Regional Director, on Decem-
ber 5, 1978, issued his Report on Objections, recom-
mending that the objections be overruled in their en-
tirety and that a certification issue. Thereafter,
Respondent filed exceptions thereto, and the Board,
on March 28, 1979, issued a Decision and Certifica-
tion of Representative2 wherein it adopted the Re-
gional Director's findings and recommendations. The
Board also found that Respondent's exception raised
2 Not reported in volumes of Board D)ecisions.
245 NLRB No. 94
730
AMERICANA HEALTH CARE CENTER OF )ECATUR
no material or substantial issues of fact or law which
would warrant reversal of the Regional Director's
recommendations or require the holding of a hearing
thereon.
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 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 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:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is, and has been at all times material
herein, a limited partnership authorized to do busi-
ness in the State of Georgia, with an office and place
of business located at Decatur, Georgia, where it is
engaged in the operation of a nursing home. Respon-
dent, during the past calendar year, which period is
representative of all times material herein, purchased
and received goods valued in excess of $50,000 di-
rectly from suppliers located outside the State of
Georgia. During the same period, Respondent de-
rived gross revenue in excess of $100,000 from ser-
vices rendered.
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 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
Laborer's International Union of North America,
AFL-CIO, Local Union # 1348, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3 See Pittsburgh Plate Glass Co. v. N.L.R B.. 313 U.S. 146. 162 (1941);
Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c).
111. THE UNFAIR I.ABOR 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 9(b) of the Act:
All full-time and regular part-time service and
maintenance employees employed by Respon-
dent at its Decatur. Georgia, facility including all
nurses aids, physical therapy aids, unit clerks,
housekeeping employees, maintenance employ-
ees, dietary employees, and laundry employees,
but excluding all office clerical employees, pro-
fessional employees, technical employees, li-
censed practical nurses, and guards and supervi-
sors as defined in the Act.
2. The certification
On September 6, 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 10. 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 March 28, 1979, and the U'Jnion continues
to be such exclusive representative within the mean-
ing of Section 9(b) of the Act.
B. The Request To Bargain and Respondent's Refusal
Commencing on or about 17, 1979. and at all times
thereafter, the Union has requested Respondent to
bargain collectively with it as the exclusive collective-
bargaining representative of all the employees in the
above-described unit. Commencing on or about April
17, 1979, and continuing at all times thereafter to
date, Respondent has refused, and continues to re-
fuse, 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
April 17, 1979, and at all times thereafter, refused to
bargain collectively with the Union as the exclusive
representative of the employees in the appropriate
unit, and that, by such refusal, Respondent has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) and (I) of the
Act.
731
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRA(CTI'I(S
UPON COMMERCE
The activities of Respondent, set forth in section
III, above, occurring in connection with its operations
described in section 1, 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 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 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 commerces
to bargain in good faith with the Union as the recog-
nized bargaining representative in the appropriate
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 Con-
struction 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. DECA, A Limited Partnership d/b/a Ameri-
cana Health Care Center of Decatur, is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Laborers' International Union of North Amer-
ica, AFL-CIO, Local Union #1348, is a labor or-
ganization within the meaning of Section 2(5) of the
Act.
3. All full-time and regular part-time service and
maintenance employees employed by Respondent at
its Decatur, Georgia, facility including all nurses aids,
physical therapy aids, unit clerks, housekeeping em-
ployees, maintenance employees, dietary employees,
and laundry employees, but excluding all office cleri-
cal employees, professional employees, technical em-
ployees, licensed practical nurses, and guards and su-
pervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. Since March 28, 1979, the above-named labor
organization has been and now is the certified and
exclusive representative of all employees in the afore-
said appropriate unit for the purpose of collective
bargaining with the meaning of' Section 9 (a) of the
Act.
5. By refusing on or about April 17, 1979, and at
all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive bar-
gaining representative of all the employees of Re-
spondent in the appropriate unit, Respondent has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a)(5) 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 them in Sec-
tion 7 of the Act, and thereby has engaged in and is
engaging in unfair labor practices within the meaning
of Section 8(a)(1) of the Act.
7. The aforesaid are unfair labor practices affect-
ing 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 Rela-
tions Board hereby orders that Respondent, DECA,
A Limited Partnership d/b/a Americana Health Care
Center of Decatur, Decatur, Georgia, its officers,
agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and con-
ditions of employment with Laborers' International
Union of North America, AFL CIO, Local Union
# 1348, as the exclusive bargaining representative of
its employees in the following appropriate unit:
All full-time and regular part-time service and
maintenance employees employed by Respon-
dent at its Decatur, Georgia, facility including all
nurses aids, physical therapy aids, unit clerks,
housekeeping employees, maintenance employ-
ees, dietary employees, and laundry employees,
but excluding all office clerical employees, pro-
fessional employees, technical employees, li-
censed practical nurses, and guards and supervi-
sors as defined in the Act.
(b) 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 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
732
AMERICANA HEALTH CARE CENTER OF DECATUR
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 understand-
ing is reached, embody such understanding in a
signed agreement.
(b) Post at its Decatur, Georgia, facility copies of
the attached notice marked "Appendix."4 Copies of
said notice, on forms provided by the Regional Direc-
tor for Region 10, after being duly signed by Respon-
dent's representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said no-
tices are not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director for Region 10, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
' In the event that 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."
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 Labor-
ers' International Union of North America,
AFL-CIO, Local Union # 1348, as the exclusive
representative of the employees in the bargaining
unit described below.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
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
agreement. The bargaining unit is:
All full-time and regular part-time service and
maintenance employees employed by us at our
Decatur, Georgia, facility including all nurses
aids, physical therapy aids, unit clerks, house-
keeping employees, maintenance employees,
dietary employees, and laundry employees,
but excluding all office clerical employees.
professional employees, technical employees,
licensed practical nurses, and guards and su-
pervisors as defined in the Act.
DECA, A LIMITED PARTNERSHIP D/B/A
AMERICANA HEALTH CARE CENTER OF DE-
CATUR
733