Americana Nursing Home and Convalescent Center, Inc.

National Labor Relations Board - Board Decisions

Mar 12, 1971

188 N.L.R.B. 961 (N.L.R.B. 1971)

AMERICANA NURSING HOME AND CONVALESCENT CENTER
Americana Nursing Home and Convalescent Center,
Inc., and Service Employees International Union,
Local 536, AFL-CIO. Case 5-CA-4956
March 12, 1971
DECISION AND ORDER
BY MEMBERS FANNING, BROWN , AND JENKINS
Upon a charge filed on October 28, 1970 , by Service
Employees International Union, Local 536, AFL-
CIO, herein called the Union , and duly served on
Americana Nursing Home and Convalescent Center,
Inc., herein called the Respondent , the General Coun-
sel of the National Labor Relations Board, by the
Regional Director for Region 5, issued a complaint on
November 23, 1970, against Respondent , alleging that
Respondent had engaged in and was engaging in un-
fair 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 a Trial Examiner were duly served
on the parties to this proceeding.
With respect to the unfair labor practices , the com-
plaint alleges in substance that on or about October
8, 1970 , following a Board election in Case 5-RC-
7233 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 October 23, 1970, and at all
times thereafter , Respondent has refused , and contin-
ues to date to refuse , to bargain collectively with the
Union as the exclusive bargaining representative, al-
though the Union has requested and is requesting it
to do so . On December 2, 1970, Respondent filed its
answer to the complaint admitting in part , and deny-
ing in part, the allegations in the complaint.
On December 11, 1970, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment , alleging that the Respondent's
answer to the complaint raises no question of fact or
law necessitating an evidentiary hearing, and , accord-
ingly, requesting the Board to grant the Motion for
Summary Judgment. Subsequently , on January 4,
1971, the Board issued an order transferring the pro-
ceeding to the Board and a Notice To Show Cause
why the General Counsel's Motion for Summary
'Official notice is taken of the record in the representation proceeding,
Case 5-RC-7233 , as the term "record" is defined in Secs. 102.68 and 102
69(f) of the Board 's Rules and Regulations , Series 8 , as amended . See LTV
Eleetrosystenis, Inc, 166 NLRB 938, enfd . 388 F2d 683 (C.A 4, 1968);
Golden Age Beverage Co, 167 NLRB 151; Intertype Co. v. Penello, 269 F.
Supp. 573 (D.C. Va., 1967), Follett Corp., 164 NLRB 378, enfd 397 F.2d 91
(C.A. 7, 1968), Sec. 9(d) of the NLRA.
961
Judgment should not be granted. Respondent there-
after filed an opposition as its response 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 powers
in connection with this case 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 response to the Notice To Show Cause, as in
its answer to the complaint, the Respondent contends
that the certification of the Union is invalid by reason
of the failure of the Regional Director and the Board
to afford the Respondent the opportunity for a hear-
ing on its objections to the election. In support of this
contention, the Respondent advances the same argu-
ments which it presented to the Board in its excep-
tions to the Regional Director's Report on Objections.
More particularly, the Respondent argues that the
presence and electioneering by discharged employees,
their relatives, and alleged union agents in the vicinity
of the polling area, during the voting period, inter-
fered with the employees' free choice in the election
and constituted objectionable conduct within the rule
established by the Board in the Milchem case .2 The
Respondent also contends that union misrepresenta-
tion as to dues and supervisory assistance in union
organization interfered with the election. For the
reasons related below, we find no merit in the
Respondent 's contentions and arguments.
The election in Case 5-RC-7233 was conducted
pursuant to a Stipulation for Certification Upon Con-
sent Election, and following the election the Respon-
dent filed timely objections. After an investigation,
the Regional Director issued and served on the parties
his Report on Objections, in which he found that the
Respondent's objections did not raise substantial or
material issues with respect to the election, and
recommended that the objections be overruled in
their entirety. Upon the Respondent's exceptions, the
Board, having considered the entire record, including
the objections, the Regional Director's report, and the
Respondent's exceptions, found no reason to overturn
the findings, conclusions, and recommendations of
the Regional Director and, accordingly, certified the
Union as the collective-bargaining agent of the em-
ployees in the unit herein found appropriate. The con-
tentions and arguments advanced by the Respondent
in this unfair labor practice proceedings are identical
to the contentions and arguments which it advanced
in the underlying representation case, and which the
2 Milchem Inc., 170 NLRB No. 46.
188 NLRB No. 142
962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board has previously considered and denied.
It is well settled that in the absence of newly discov-
ered or previously unavailable evidence or special cir-
cumstances 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.;
All issues raised by the Respondent in this proceed-
ing were or could have been raised in the prior repre-
sentation proceeding, and the Respondent does not
offer to adduce at a hearing any newly discovered 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 the Respondent has not raised any issue
which is properly litigable in this unfair labor practice
proceeding .4 We shall, accordingly, grant the Motion
for Summary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
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 effectu-
ate the policies of the Act to assert jurisdiction herein.
II THE LABOR ORGANIZATION INVOLVED
Service Employees International Union, Local 536,
AFL-CIO, is a labor organization within the meaning
of Section 2(5) of the Act.
III UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of the Respondent consti-
tute a unit appropriate for collective-bargaining pur-
poses within the meaning of Section 9(b) of the Act:
All non-professional employees employed by
Respondent at its Clinton, Maryland, location;
but excluding registered nurses, licensed practi-
cal nurses ,' office clerical employees, physical
therapist, physical therapist's aide, social direc-
tor, guards and supervisors as defined in the Act,
as amended.
Respondent is, and at all times material herein has
been, a corporation duly organized under and existing
by virtue of the laws of the State of Maryland, with
its office and principal place of business located at
Clinton, Maryland, where it is engaged in the opera-
tion of a nursing and convalescent home.
Respondent, in the course and conduct of its bus-
iness operations as described above, during the pre-
ceding 12 months, a representative period, derived
gross revenues valued at in excess of $200,000 and
purchased and received goods and materials from di-
rectly outside the State of Maryland valued at in ex-
cess of $5,000.
We find, on the basis of the foregoing, that Respon-
7 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).
In its answer the Respondent denies paragraphs 8 and 9 of the complaint
which allege that the Union has requested and the Respondent has refused
to bargain . Attached to and made parts of the General Counsel's Motion for
Summary Judgment are two letters dated October 9 and 23, 1970. The letter
dated October 9, 1970 , purports to be a request by the Union on the Respon-
dent for bargaining , and appears to have been sent to the Respondent by
certified mail. The letter dated October 23, 1970 , which appears to have been
signed by J. Kennedy Sills, president of the Respondent , purports to be its
reply to the Union's letter, and recites the Respondent 's refusal to bargain.
In its response to the Notice To Show Cause the Respondent neither alludes
to nor seeks to controvert the contents or receipt of the Union 's letter of
October 9 , nor does the Respondent deny that the letter of October 23 is its
reply and refusal to the Union 's request to bargain. Accordingly , we find that
the Respondent's denials of paragraphs 8 and 9 of the complaint are friv-
olous, and we deem these delegations to be admitted . William L Bonnell Co,
Inc., 187 NLRB No. 124, and cases cited therein.
2. The certification
On June 12, 1970, 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 5, designated the Union as their
representative for the purpose of collet Live bargaining
with the Respondent. The Union was certified as the
collective-bargaining representative of the employees
in said unit on October 8, 1970, and the Union contin-
ues 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 October 9, 1970, and at
all times thereafter, the Union has requested the Re-
spondent to bargain collectively with it as the exclu-
sive collective-bargaining representative of all the em-
ployees in the above-described unit. Commencing on
or about October 23, 1970, and continuing at all times
thereafter to date, the Respondent has refused, and
continues to refuse, to recognize and bargain with the
Union as the exclusive representative for collective
bargaining of all employees in said unit.
Accordingly, we find that the Respondent has,
since October 23, 1970, and at all times thereafter,
AMERICANA NURSING HOME AND CONVALESCENT CENTER
refused to bargain collectively with the Union as the
exclusive representative of the employees in the ap-
propriate 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 operations
described in section I, 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
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 appro-
priate unit and, if an understanding is reached, em-
body 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 select-
ed bargaining agent for the period provided by law,
we shall construe the initial period of certification as
beginning on the date Respondent commences to bar-
gain in good faith with the Union as the recognized
bargaining representative in the appropriate unit. See
Mar-Jac Poultry Company, Inc., 136 NLRB 785; Com-
merce Company d/b/a Lamar Hotel, 140 NLRB 226,
229, enfd. 328 F.2d 600 (C.A. 5), cert. denied 379 U.S.
817; Burnett Construction Company, 149 NLRB 1419,
1421, enfd. 350 F.2d 57 (C.A. 10).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Americana Nursing Home and Convalescent
Center, Inc., is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Service Employees International Union, Local
536, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All nonprofessional employees employed by Re-
spondent at its Clinton, Maryland, locations; but ex-
cluding registered nurses, licensed practical nurses,
office clerical employees, physical therapist, physical
therapist's aide, social director, guards and supervi-
963
sors as defined in the Act, as amended, constitute a
unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act.
4. Since October 8, 1970, 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 within the meaning of Section 9(a) of the
Act.
5. By refusing on or about October 23, 1970, 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 Respon-
dent in the appropriate unit, Respondent had engaged
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 to them in
Section 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 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 Rela-
tions Board hereby orders that Respondent, Ameri-
cana Nursing Home and Convalescent Center, Inc.,
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 condi-
tions of employment, with Service Employees Inter-
national Union, Local 536, AFL-CIO, as the
exclusive bargaining representative of its employees
in the following appropriate unit:
All non-professional employees employed by
Respondent at its Clinton, Maryland, location;
but excluding registered nurses, licensed practi-
cal nurses, office clerical employees, physical
therapist, physical therapist's aide, social direc-
tor, guards and supervisors as defined in the Act,
as amended.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the rights guar-
anteed 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
964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 Clinton, Maryland, operation copies
of the attached notice marked "Appendix."' Copies of
said notice, on forms provided by the Regional Direc-
tor for Region 5, after being duly signed by
Respondent's representative, shall be posted by Re-
spondent 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 Respondent 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.
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 be changed
to 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 con-
cerning rates of pay, wages , hours, and other
terms and conditions of employment with Serv-
ice Employees International Union, Local 536,
AFL-CIO, as the exclusive representative of the
employees in the bargaining unit described be-
low.
WE WILL NOT in any like or related manner in-
terfere 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 representative 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 non-professional employees employed
by Respondent at its Clinton, Maryland, lo-
cation; but excluding registered nurses, li-
censed practical nurses, office clerical
employees, physical therapist, physical
therapist's aide, social director, guards and
supervisors as defined in the Act, as
amended.
AMERICANA NURSING HOME AND
CONVALESCENT CENTER, INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Federal Building, Room 1019, Charles
Center, Baltimore, Maryland 21201, Telephone 301-
962-2822.