Bernard GuttmanDownload PDFNational Labor Relations Board - Board DecisionsMay 5, 1978235 N.L.R.B. 1428 (N.L.R.B. 1978) Copy Citation 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. 1428 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). 1429 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 Copy with citationCopy as parenthetical citation