Beverly Manor Convalescent Centers

National Labor Relations Board - Board Decisions

Jun 4, 1979

242 N.L.R.B. 751 (N.L.R.B. 1979)

BEVERI.Y MANOR CONVALESCENT CENTERS
Beverly Enterprises d/b/a Beverly Manor Convales-
cent Centers and United Steelworkers of America,
AFL-CIO-CLC. Case 7-CA-16071
June 4, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
Upon a charge filed on February 14, 1979, by
United Steelworkers of America, AFL CIO-CLC,
herein called the Union, and duly served on Beverls
Enterprises d/b/a Beverly Manor Convalescent Cen-
ter, herein called Respondent, the General Counsel of
the National Labor Relations Board, by the Regional
Director for Region 7, issued a complaint and notice
of hearing on March 12, 1979, against Respondent,
alleging that Respondent had engaged in and was en-
gaging 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 and complaint
and notice of hearing before an administrative law
judge were duly served on the parties to this proceed-
ing.
With respect to the unfair labor practices, the com-
plaint alleges, in substance, that on December 1,
1978, following a Board election in Case 7-RC-
14989, 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 December 31, 1978, 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 March 21, 1979, Respondent filed its
answer to the complaint admitting in part, and deny-
ing in part, the allegations in the complaint.
On March 28, 1979, counsel for the General Coun-
sel filed directly with the Board a Motion for Sum-
mary Judgment. Subsequently, on April 6, 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 e granted. Respondent thereafter filed a re-
sponse to the Notice To Show Cause.
I Official notice is taken of the record in the representation proceeding,
Case 7-RC-14989, 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 Elecrovystems, 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); Injertype Co. v. Penello, 269 F.Supp. 573 (D.Cva. 1957);
Folleli Corp., 164 NLRB 378 (1967), enfd. 397 F2d 91 (7th Cir. 1968). Sec.
9(d) of the NLRA, as amended.
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 response to the Notice To Show Cause and
answer to the complaint, Respondent admits that it
has refused to bargain with the Union but asserts that
the bargaining unit certified by the Board in Case 7-
RC- 14989 is inappropriate. It requests that the Board
reexamine the Regional Director's inclusion of the
LPN charge nurses and ward and central supply clerk
in the unit. Counsel for the General Counsel argues
that Respondent is not averring newly discovered or
previously unavailable evidence which was not previ-
ously considered by the Board and is merely attempt-
ing to relitigate issues which were or could have been
raised in the prior representation proceeding. We
agree with the General Counsel.
Our review of the record herein, including the rec-
ord in Case 7-RC- 14989, indicates that the Regional
Director's Decision, Order, and Direction of Election
was issued on September 20, 1978. Respondent re-
quested review of the decision and direction, contend-
ing that the Regional Director's inclusion in the unit
of the LPN charge nurses and ward and central sup-
ply clerk was erroneous. The Board denied the re-
quest for review on October 16, 1978.2 and the elec-
tion was held on October 18, 1978. The tally of
ballots showed 31 votes cast for the Union and 22
against, with I challenged ballot. Respondent filed
objections which the Regional Director overruled in
their entirety in a supplemental decision issued on
December 1, 1978.
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.)
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
2 Member Murphy joined in the denial of review but indicated that she
would have voted the disputed categories by challenged ballot. However, she
concurs in the Decision herein.
'See Pittsburgh Plate Glass Co v. NL.RB., 313 US. 146. 162 (1941);
Rules and Regulations of the Board. Sec. 102.67(f) and 102.69(c).
242 NLRB No. 114
751
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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, a California corporation, is engaged
in providing nursing home care and services at facili-
ties in California, Florida, and Michigan, including
its Petoskey, Michigan, location, the only facility in-
volved in this proceeding. During the past year, a rep-
resentative period, Respondent received revenues in
excess of $500,000 and during this same period pur-
chased and caused to be delivered to its Petoskey fa-
cility goods valued in excess of $50,000, of which
goods valued in excess of $50,000 were transported
and delivered to its Petoskey facility directly from
points located outside the State of Michigan.
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
United Steelworkers of America, AFL-CIO-CLC,
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 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 food service
employees, maintenance employees, laundry em-
ployees, housekeeping employees, Licensed Prac-
tical Nurses, nurses aides and orderlies, physical
therapy aide and ward clerk and central supply
employee employed by the Employer at its 1500
Spring Street, Petoskey, Michigan facility; but
excluding confidential employees, professional
employees, office clerical employees, guards and
supervisors as defined in the Act.
2. The certification
On October 18, 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 7, 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 December 1, 1978, 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 December 28, 1978, and
at all times thereafter, the Union has requested 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 December 31, 1978, 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
December 31, 1978, and at all times thereafter, re-
fused 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 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.
752
BEVERLY MANOR CONVALESCENT CENTERS
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 commences
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/bla 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. Beverly Enterprises d/b/a Beverly Manor Con-
valescent Centers is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of
the Act.
2. United Steelworkers of America, AFL-CIO-
CLC, is a labor organization within the meaning of
Section 2(5) of the Act.
3. All full-time and regular part-time food service
employees, maintenance employees, laundry employ-
ees, housekeeping employees, licensed practical
nurses, nurses aides, orderlies, physical therapy aide,
and ward clerk and central supply employee em-
ployed by the Employer at its 1500 Spring Street,
Petoskey, Michigan facility; but excluding confiden-
tial employees, professional employees, office clerical
employees, guards, and supervisors 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 December 1, 1978, 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 December 31, 1978, 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 9(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 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 Rela-
tions Board hereby orders that the Respondent, Bev-
erly Enterprises d/b/a Beverly Manor Convalescent
Centers, Petoskey, Michigan, its officers, agents, suc-
cessors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and con-
ditions of employment with United Steelworkers of
America, AFL-CIO-CLC, as the exclusive bargain-
ing representative of its employees in the following
appropriate unit:
All full-time and regular part-time food service
employees, maintenance employees, laundry em-
ployees, housekeeping employees, Licensed Prac-
tical Nurses, nurses aides and orderlies, physical
therapy aide and ward clerk and central supply
employee employed by the Employer at its 1500
Spring Street, Petoskey, Michigan facility; but
excluding confidential employees, professional
employees, 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 understand-
ing is reached, embody such understanding in a
signed agreement.
(b) Post at its Petoskey, Michigan, facility copies
of the attached notice marked "Appendix."4 Copies
of said notice, on forms provided by the Regional
Director for Region 7, after being duly signed by Re-
spondent's representative, shall be posted by Respon-
dent immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in
I 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."
753
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 7, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
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
United Steelworkers of America, AFL-CIO-
CLC, as the exclusive representative of the em-
ployees 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 food ser-
vice employees, maintenance employees, laun-
dry employees, housekeeping employees, Li-
censed Practical Nurses, nurses aides and
orderlies, physical therapy aide and ward clerk
and central supply employee employed by the
Employer at its 1500 Spring Street, Petoskey,
Michigan facility; but excluding confidential
employees, professional employees, office
clerical employees, guards and supervisors as
defined in the Act.
BEVERLY ENTERPRISES D/B/A BEVERLY
MANOR CONVALESCENT CENTERS
754