Beverly Manor Convalescent Hosptial

National Labor Relations Board - Board Decisions

Jul 1, 1980

250 N.L.R.B. 355 (N.L.R.B. 1980)

HIi \ RI Y MANOR CO(NVAL' lSCEN 1 HOSPIITAl
Beverly Nlanor Convalescent Hospital and Hospital
and Service Employees Union, Local 399, Serv-
ice Employees International Union, AFI.-CIO.
Case 31-CA-9812
July 1, 1980
DECISION AND ORDER
By ME.MBFRS JFNKINS, PEN I I.O , ANI)
TRUISDAI F
Upon a charge filed on February 25, 1980, by
Hospital and Service Employees Union, Local 399,
Service Employees International Union, AFL-
CIO, herein called the Union, and duly served on
Beverly Manor Convalescent Hospital, herein
called Respondent, the General Counsel of the Na-
tional Labor Relations Board, by the Regional Di-
rector for Region 31, issued a complaint on March
14, 1980, against Respondent, alleging that Re-
spondent 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 and complaint
and notice of hearing before an administrative law
judge were duly served on the parties to this pro-
ceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on January 17,
1980, following a Board election in Case 31-RC-
4543, the Union was duly certified as the exclusive
collective-bargaining representative of Respond-
ent's employees in the unit found appropriate;' and
that, commencing on or about February 11, 1980,
and at all times thereafter, Respondent has refused,
and continues to date to refuse, to bargain collec-
tively with the Union as the exclusive bargaining
representative, although the Union has requested
and is requesting it to do so. On March 24, 1980,
Respondent filed its answer to the complaint admit-
ting in part, and denying in part, the allegations in
the complaint. 2
On April 15, 1980, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment, which included a motion to
strike portions of Respondent's answer. Subse-
quently, on April 18, 1980, the Board issued an
i Official notice is taken of the record in the representation proceed-
ing. Case 31-RC-4543, as the term "record" is defined in Secs. 102.68
and 102.6 9(gl of the Board's Rules and Regulations, Series 8, as amended
See LTV Elekcrosyvems. Inc., 166 NLRB 938 (1967), enfd 388 F.2d 683
(4th Cir. 1968); Golden, 4ge Beverage Co., 167 NLRB 151 (1967). enfd 415
F 2d 26 (5th Cir. 1969); Interrype Co. s Penello. 269 F Supp 573
(D C.Va 1967): Filleri Corp. 164 NLRB 378 (1967). enfd. 397 F 2d 91
(7th Cir 1968): Sec 9(d) or the NLRA, as amended
Respondent's answer does not admit. deny, or explain the allegations
contained in pars. 1, 2. 3. 4. 5. and 9 of the complaint. Accordingly. they
are deemed to) he admitted as true National Labor Relations Board Rules
and Regulations. Series 8, as amended. Sec 102 20
250 NLRB No. 36
order transferring the proceeding to the Board and
a Notice To Show Cause why the General Coun-
sel's Motion for Summary Judgment should not be
granted. Respondent thereafter filed a response to
the 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 To Strike Portions of
Respondent's Answer
Paragraph 8 of the complaint alleges that on
September 17, 1979, the Union requested Respond-
ent to bargain, while paragraph 3 of Respondent's
answer denies that the Union sought to bargain
with Respondent any time before January 29, 1980.
Attached to and made part of the General Coun-
sel's Motion for Summary Judgment are copies of a
letter, dated September 17, 1979, and a signed
return receipt from the United States Postal Serv-
ice. The letter purports to be a request by the
Union for bargaining, sent to Respondent by certi-
fied mail. In its response to the General Counsel's
motion, Respondent does not controvert the con-
tents or receipt of the letter or demonstrate any
grounds for questioning its authenticity. In light of
these factors, we find that the September 17, 1979,
letter requesting bargaining was sent to Respond-
ent, and that Respondent's denial, which contends
that no such request was made, is frivolous. Ac-
cordingly, we grant the General Counsel's motion
to strike paragraph 3 of Respondent's answer.3
However, we find that the General Counsel's
motion to strike paragraphs I and 2 of the answer
and Respondent's affirmative defenses should be
denied. While in our judgment the answer fails to
present a meritorious defense, we find that Re-
spondent's pleading constitutes an endeavor to pre-
serve a position, albeit an erroneous one, for later
review.4 Consequently, we cannot say that those
parts of Respondent's pleading are frivolous, and
we therefore deny the General Counsel's motion as
its pertains to Respondent's other denials and its af-
firmative defenses.
:' Gooch PacAkilg Comnpany. Inc, el. 188 N RB 890, fn 2 (1971). re-
manded on other grounds 457 F 2d 30l (5th Cir 1972) .4,nericana .Nurg-
ing Home and Convulelscent C ler /tin, 188 NI RB 961. 962. fn 4 (1971).
enfd 459 F 2d 26 (41h Cir 19721
4 See Rod-Ric Corporation. 171 NL.RB 922 (1968). enfd 428 F2d 948
(5th Cir. 19701
355
I)F CISIONS OF NATIONAL l.ABOR RELATIONS BOARD
Ruling on the Motion for Summary Judgment
Respondent's answer, in substance, attacks the
validity of the Union's certification on the basis of
its objections to the election in the underlying rep-
resentation proceeding. The General Counsel
argues that all material issues have been previously
decided. We agree with the General Counsel.
A review of the record herein, including the
record in Case 31-RC-4543, discloses that on Sep-
tember 11, 1979, pursuant to a Stipulation for Cer-
tification Upon Consent Election, an election was
held among the employees in the stipulated unit.
The tally of ballots showed that, of approximately
50 eligible voters, 21 cast valid ballots in favor of,
and 19 against, the Union; there were 2 determina-
tive challenged ballots. Respondent filed timely ob-
jections to the election. Following an investigation,
the Acting Regional Director issued a report on
November 21, 1979, which recommended overrul-
ing the objections, and, in accordance with the par-
ties' stipulation, recommended sustaining the chal-
lenge to one ballot, and overruling the challenge to
the other. Thereafter, Respondent filed exceptions
to the Acting Regional Director's recommendation
that its objections be overruled. On January 17,
1980, the Board adopted the Acting Regional Di-
rector's recommendations, and certified the Union
as the exclusive bargaining representative of em-
ployees in the stipulated unit.
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or spe-
cial circumstances a respondent in a proceeding al-
leging 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. 5
All issues raised by Respondent in this proceed-
ing were or could have been litigated in the prior
representation proceeding, and Respondent does
not offer to adduce at a hearing any newly discov-
ered 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 Respondent has not raised any
issue which is properly 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:
' See Pisbhurgh Plaie Gla C,. v. N.L R.B., 313 U.S. 146, 162 (1941):
Rules and Regulations of Ihe Board, Scc, 102 67(f) and 1(2.6h9(c)
FINDINGS OF FACT I
1. I HE BUSINESS OF RESPONDENT
Respondent Beverly Manor Convalescent Hospi-
tal, a California corporation, is engaged in the op-
eration of a nursing home in Redlands, California.
Respondent, in the course and conduct of its busi-
ness operations, annually purchases and receives
goods and services valued in excess of $5,000 from
sellers or suppliers located within the State of Cali-
fornia, which sellers or suppliers receive such
goods in substantially the same form directly from
outside the State of California. Additionally, in the
course and conduct of its business operations, Re-
spondent annually derives gross revenues in excess
of $100,000.
We find, on the basis of the foregoing, that Re-
spondent 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 INVOL VED
Hospital and Service Employees Union, Local
399, Service Employees International Union, AFL-
CIO, is a labor organization 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 consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All employees employed by Respondent at its
facility located at 700 East Highland, Red-
lands, California, excluding all office clerical
employees, professional employees, guards,
watchmen and supervisors as defined in the
Act, as amended.
2. The certification
On September 11, 1979, a majority of the em-
ployees of Respondent in said unit, in a secret-
ballot election conducted under the supervision of
the Regional Director for Region 31, designated
the Union as their representative for the purpose of
collective bargaining with Respondent. The Union
was certified as the collective-bargaining repre-
sentative of the employees in said unit on January
17, 1980, and the Union continues to be such exclu-
356
I3EV RI .Y MAN()R C()NVALFSCF I It)SPI I Al
sive representative within the meaning of Section
9(a) of the Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about September 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. Com-
mencing on or about February 11, 1980, and con-
tinuing at all times thereafter to date, Respondent
has refused, and continues to refuse, to recognize
and bargain with the Union as the exclusive repre-
sentative for collective bargaining of all employees
in said unit.
Accordingly, we find that Respondent has, since
February 11, 1980, 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, Respond-
ent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) and
(I) of the Act.
IV. THE EFFECT OF THE UNFAIR I.ABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section
111, above, occurring in connection with its oper-
ations described in section 1, 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 ob-
structing commerce and the free flow of com-
merce.
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 ap-
propriate unit will be accorded the services of their
selected bargaining agent for the period provided
by law, we shall construe the initial period of certi-
fication 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 (5th Cir. 1964), cert. denied 379 U.S. 817;
Burnett Construction Compuaw, 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:
CONCI i SIONS OF Lxsv
1. Beverly Manor Convalescent Hospital is an
employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. Hospital and Service Employees Union, Local
399. Service Employees International Union, AFL-
CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. All employees employed by Respondent at its
facility located at 700 East Highland, Redlands,
California, excluding all office clerical employees,
professional employees, guards, watchmen and su-
pervisors as defined in the Act, constitute a unit ap-
propriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. Since January 17, 1980, 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 February 11, 1980,
and at all times thereafter, to bargain collectively
with the above-named labor organization as the ex-
clusive bargaining representative of all the employ-
ees of Respondent in the appropriate unit, Re-
spondent 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, Respond-
ent has interfered with, restrained, and coerced,
and is interfering with, restraining, and coercing,
employees in the exercise of the rights guaranteed
them in Section 7 of the Act, and thereby has en-
gaged 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 Re-
lations Board hereby orders that the Respondent,
Beverly Manor Convalescent Hospital. Redlands,
California, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
157
I)D:CISIONS () NATIO(NAL I.AB()R REI.A'II()NS O()ARI)
conditions of employment with Hospital and Serv-
ice Employees Union, Local 399, Service Employ-
ees International Union, AFL-CIO, as the exclu-
sive bargaining representative of its employees in
the following appropriate unit:
All employees employed by Respondent at its
facility located at 700 East Highland, Red-
lands, California, excluding all office clerical
employees, professional employees, guards,
watchmen and supervisors as defined in the
Act, as amended.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise 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 understanding is reached, embody such under-
standing in a signed agreement.
(b) Post at its Redlands, California, facility
copies of the attached notice marked "Appendix." 6
Copies of said notice, on forms provided by the
Regional Director for Region 31, after being duly
signed by Respondent's representative, shall be
posted by Respondent 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 Re-
spondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 31,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
' In the event that this Order is enforcied hy a Judgment (of a United
States Court of Appeals. the words in the noriice reading "l'o,scd hy
Order of the Natlilonal Labor Relations Board" shall read "P'loted I'uru-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order (of the National Labor Relations Board "
MIMBHI:R JENKINS, dissenting:
Inasmuch as I would not have certified the
Union for the reasons stated in my dissenting opin-
ion in the underlying representation case, Beverly
Enzlrprisev d/b/u Beverly Manor Convalevscet ltospi-
tul, 247 NLRB No. 55 (1980), I would deny the
motion for summary judgment and would dismiss
the complaint.
APPENDIX
NoticIC To EMI'I.ONI ris
Pos 11I) BY ORIDER 01: T Ii
NA TIONAI. LABOR RtlI A'IONS BOARI)
An Agency of the United States Government
WI: Wil.. NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and
other terms and conditions of employment
with Hospital and Service Employees Union,
Local 399, Service Employees International
Union, AFL-CIO, as the exclusive representa-
tive of the employees in the bargaining unit
described below.
WF Wil.. NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE wil.l., upon request, bargain with the
above-named Union, as the exclusive repre-
sentative of all employees in the bargaining
unit described below, with respect to rates of
pay, wages, hours, and other terms and condi-
tions of employment, and, if an understanding
is reached, embody such understanding in a
signed agreement. The bargaining unit is:
All employees employed by us at our facili-
ty located at 700 East Highland, Redlands,
California, excluding all office clerical em-
ployees, professional employees, guards,
watchmen and supervisors as defined in the
Act, as amended.
BEVERI.Y MANOR CONVAL I SCINTI
HOSPI'AI .
358