Bernard Guttman

National Labor Relations Board - Board Decisions

May 5, 1978

235 N.L.R.B. 1428 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bernard Guttman t/a Liberty Nursing Center and
Professional Health Care Division, Retail Clerks
Local 1361, chartered by Retail Clerks Internation-
al Association, AFL-CIO. Case 4-CA-8989
May 5, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
Upon a charge filed on October 25, 1977, by
Professional Health Care Division, Retail Clerks
Local 1361, Chartered by Retail Clerks International
Association, AFL-CIO, herein called the Union, and
duly served on Bernard Guttman t/a Liberty Nurs-
ing Center, herein called Respondent, the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 4, issued a com-
plaint on December 6, 1977, against Respondent,
alleging that Respondent had engaged in and was
engaging in unfair labor practices affecting com-
merce 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 Adminis-
trative 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 September 28,
1977, following a Board election in Case 4-RC-
12659, the Union was duly certified as the exclusive
collective-bargaining representative of Respondent's
employees in the unit found appropriate; l and that,
commencing on or about October 11, 1977, and at all
times thereafter, Respondent has refused, and con-
tinues to date to refuse, to bargain collectively with
the Union as the exclusive bargaining representative,
although the Union has requested and is requesting it
to do so. On December 22, 1977, Respondent filed its
answer to the complaint admitting in part, and
denying in part, the allegations in the complaint.
On February 23, 1978, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment and for Issuance of Board
Decision and Order and a memorandum in support
thereof. On March 1, 1978, the Union filed with the
Board a Motion in support of the General Counsel's
Motion for Issuance of a Board Decision and Order.
Subsequently, on March 6, 1978, the Board issued an
order transferring the proceeding to the Board and a
Notice To Show Cause why the General Counsel's
I Official notice is taken of the record in the representation proceeding,
Case 4-RC-12659, 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 Electrosystems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (C.A. 4,
235 NLRB No. 179
Motion for Summary Judgment should not be
granted. Respondent has filed no response to the
Notice To Show Cause.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority 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, Respondent admits
that the Board certified the Union as the exclusive
representative of employees in the bargaining unit
and admits it has refused to bargain with the Union.
However, Respondent denies that the Board's Deci-
sion and Certification of Representative was properly
issued, contending that the conduct of the election
and certain conduct affecting the results of the
election rendered the election null and void. In
addition, Respondent's answer admits that in the
past year it had gross revenues in excess of $250,000
and purchased goods valued in excess of $2,000
directly from points outside Pennsylvania, but denies
that its business has a substantial relation to trade,
traffic, and commerce among the States. The Gener-
al Counsel contends that the issues now in dispute
were determined in the previous representation
proceeding, that Respondent's factual admissions
establish that its business has a substantial impact
upon interstate commerce, and that summary judg-
ment is therefore appropriate. We agree with the
General Counsel.
An examination of the entire record, including that
in Case 4-RC-12659, discloses that in an election
conducted pursuant to a Stipulation for Certification
Upon Consent Election the Union was selected as
the collective-bargaining representative by a vote of
59 to 44, with 6 ballots challenged. Respondent filed
timely objections to the conduct of the election and
to conduct affecting the results of the election, in
which it contended that: (1) as the balloting was
taking place, two union supporters who had already
voted were permitted to engage in conversation in
the polling place with employees waiting in line to
vote; (2) an employee who was preparing to vote
handed a questionnaire distributed by the Union to
the Board agent to give to the union observer. When
the Board agent realized the nature of the document,
he took it from the union observer and handed it
back to the voter; (3) the Union, through its
representatives and employees acting on its behalf,
1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26
(C.A. 5, 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va., 1967);
Folleut Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec.
9(d) of the NLRA, as amended.
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LIBERTY NURSING CENTER
threatened employees with loss of their jobs if they
did not vote for the Union; and (4) the Union,
through its representatives and employees acting on
its behalf, misrepresented the financial condition of
the Employer to the employees.
After an investigation, the Regional Director issued
a Report and Recommendations on Objections to
Election, in which he recommended that the objec-
tions be overruled and that the Union be certified.
Respondent filed timely exceptions to the Regional
Director's report, together with a supporting brief,
urging that the election be set aside and that a new
election be ordered, or, in the alternative, that a
hearing be granted. On September 28, 1977, the
Board adopted the findings and recommendations of
the Regional Director and certified the Union as the
exclusive representative of the employees in the
appropriate unit. Since October 11, 1977, Respon-
dent has refused to bargain collectively with the
Union.
It is well settled that in the absence of newly
discovered 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.2
The record reveals that all issues raised by Respon-
dent in this proceeding were or could have been
litigated in the prior representation proceeding.
Respondent does not offer to adduce at a hearing
any newly discovered or previously unavailable
evidence, nor does it allege that any special circum-
stances exist herein which would require the Board to
reexamine the decision made in the representation
proceeding. Additionally, the facts admitted in Re-
spondent's answer demonstrate that its purchases
from outside the State affect commerce within the
meaning of Section 2(7) of the Act 3 and that it meets
the Board's standards for asserting jurisdiction over
proprietary nursing homes.4 We therefore find that
Respondent has not raised any issue which is
properly litigable in this unfair labor practice pro-
ceeding. We shall, accordingly, 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 sole proprietorship which operates
a proprietary nursing home in Allentown, Pennsylva-
nia. During the past year, Respondent had gross
2 See Pittsburgh Plate Glass Co. v. N.LR.B., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c).
3 E.g., Austin Developmental Center, Inc., 226 NLRB 134 (1976); Jere
Fowler, et al. d/b /a Pet Inn's Grooming Shoppe, 220 NLRB 828 (1975).
revenues in excess of $250,000 and purchased goods
valued in excess of $2,000 directly from points
outside Pennsylvania.
We find, on the basis of the foregoing, that
Respondent 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
Professional and Health Care Division, Retail
Clerks Local 1361, chartered by Retail Clerks Inter-
national Association, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
111. THE UNFAIR LABOR 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 nurses aides,
medical records employees, LPNs, GPNs, physi-
cal therapy and occupational therapy assistants,
recreation employees, dietary employees, house-
keeping employees, and maintenance employees
employed by Respondent at its facility located at
17th and Allen Streets, Allentown, Pennsylvania;
but excluding all professional and technical em-
ployees, RNs, office clerical employees, guards,
and supervisors as defined in the Act.
2. The certification
On June 10, 1977, a majority of the employees of
Respondent in said unit, in a secret-ballot election
conducted under the supervision of the Regional
Director for Region 4, designated the Union as their
representative for the purpose of collective bargain-
ing with Respondent. The Union was certified as the
collective-bargaining representative of the employees
in said unit on September 28, 1977, and the Union
continues 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 11, 1977, and at
all times thereafter, the Union has requested Respon-
I Faye Nursing Home, Inc., d/b/a Green Oak Manor, 215 NLRB 658
(1974); University Nursing Home, Inc., 168 NLRB 263 (1967).
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dent to bargain collectively with it as the exclusive
collective-bargaining representative of all the em-
ployees in the above-described unit. Commencing on
or about October 11, 1977, and continuing at all
times thereafter to date, 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 Respondent has, since
October 11, 1977, and at all times thereafter, refused
to bargain collectively with the Union as the exclu-
sive representative of the employees in the appropri-
ate unit, and that, by such refusal, Respondent has
engaged in and is engaging in unfair labor practices
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 opera-
tions 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 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
appropriate unit, and, if an understanding is reached,
embody such understanding in a signed agreement.
In order to insure that the employees in the
appropriate unit will be accorded the services of their
selected bargaining agent for the period provided by
law, we shall construe the initial period of certifica-
tion as beginning on the date Respondent com-
mences to bargain in good faith with the Union as
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 (C.A. 5, 1964), cert. denied 379 U.S. 817
(1964); Burnett Construction Company, 149 NLRB
1419, 1421 (1964), enfd. 350 F.2d 57 (C.A. 10, 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Bernard Guttman t/a Liberty Nursing Center
is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Professional Health Care Division, Retail
Clerks Local 1361, chartered by Retail Clerks Inter-
national Association, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. All full-time and regular part-time nurses aides,
medical records employees, LPNs, GPNs, physical
therapy and occupational therapy assistants, recre-
ation employees, dietary employees, housekeeping
employees, and maintenance employees employed by
Respondent at its facility located at 17th and Allen
Streets, Allentown, Pennsylvania; but excluding all
professional and technical employees, RNs, office
clerical employees, guards, and supervisors as de-
fined 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 September 28, 1977, 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 October 11, 1977, and
at all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive
bargaining representative of all the employees of
Respondent in the appropriate unit, Respondent has
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, Respon-
dent has interfered with, restrained, and coerced, and
is interfering with, restraining, and coercing, employ-
ees 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)(l) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing 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
Relations Board hereby orders that the Respondent,
Bernard Guttman t/a Liberty Nursing Center, Allen-
town, Pennsylvania, 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
conditions of employment with Professional Health
1430
LIBERTY NURSING CENTER
Care Division, Retail Clerks Local 1361, chartered
by Retail Clerks International Association, AFL-
CIO, as the exclusive bargaining representative of its
employees in the following appropriate unit:
All full-time and regular part-time nurses aides,
medical records employees, LPNs, GPNs, physi-
cal therapy and occupational therapy assistants,
recreation employees, dietary employees, house-
keeping employees, and maintenance employees
employed by Respondent at its facility located at
17th and Allen Streets, Allentown, Pennsylvania;
but excluding all professional and technical em-
ployees, RNs, 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 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
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 under-
standing is reached, embody such understanding in a
signed agreement.
(b) Post at its facility at 17th and Allen Streets,
Allentown, Pennsylvania, copies of the attached
notice marked "Appendix." 5 Copies of said notice,
on forms provided by the Regional Director for
Region 4, after being duly signed by Respondent's
representative, shall be posted by Respondent imme-
diately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employ-
ees 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 4, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
5 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 Profes-
sional Health Care Division, Retail Clerks Local
1361, chartered by Retail Clerks International
Association, AFL-CIO, as the exclusive represen-
tative 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
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 agree-
ment. The bargaining unit is:
All full-time and regular part-time nurses
aides, medical records employees, LPNs,
GPNs, physical therapy and occupational
therapy assistants, recreation employees, di-
etary employees, housekeeping employees,
and maintenance employees employed by
Respondent at its facility located at 17th and
Allen Streets, Allentown, Pennsylvania; but
excluding all professional and technical em-
ployees, RNs, office clerical employees,
guards, and supervisors as defined in the
Act.
BERNARD GUTTMAN T/A
LIBERTY NURSING
CENTER
1431