Brookside Manor, Inc.

National Labor Relations Board - Board Decisions

Apr 21, 1981

255 N.L.R.B. 1134 (N.L.R.B. 1981)

1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brookside Manor, Inc. and Willowbrook, Inc. and
District 1199-J, National Union of Hospital and
Health Care Employees, Retail, Wholesale and
Department Store Union, AFL-CIO. Case 22-
CA-10402
April 21, 1981
DECISION AND ORDER
Upon a charge filed on November 6, 1980, by
District 1199-J, National Union of Hospital and
Health Care Employees, Retail, Wholesale and De-
partment Store Union, AFL-CIO, herein called the
Union, and duly served on Brookside Manor, Inc.
and Willowbrook, Inc., herein called Respondent,
the General Counsel of the National Labor Rela-
tions Board, by the Regional Director for Region
22, issued a complaint and notice of hearing on De-
cember 4, 1980, against Respondent, alleging that
Respondent 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 September
25, 1980, following a Board election in Case 22-
RC-8255, the Union was duly certified as the ex-
clusive collective-bargaining representative of Re-
spondent's employees in the unit found appropri-
ate;' and that, commencing on or about October
28, 1980, and at all times thereafter, Respondent
has refused, and continues to date to refuse, to bar-
gain collectively with the Union as the exclusive
bargaining representative, although the Union has
requested and is requesting it to do so. On Decem-
ber 8, 1980, Respondent filed its answer to the
complaint, and on February 24, 1981, Respondent
filed an amended answer to the complaint admit-
ting in part, and denying in part, the allegations in
the complaint.
On January 30, 1981, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on February 3,
1981, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for Sum-
' Official notlice is taken of the record in the representation proceed-
ing. Case 22-RC-8255, as the term "record" is defined in Sec%. 102.68
and 102.69(g) of the Board's Rules and Regulations, Series 8, as amended.
See LTV Elecirosysrens, 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 (5Ih Cir. 1969); Interlype Co. v. Penello, 269 F.Supp. 573
(D.C.Va. 1967); Follett Corp., 164 NLR 378 (1967), enfd 397 F.2d 91
(7th Cir. 1968); Sec. 9(d) of the NLRA, as amended.
255 NLRB No. 143
mary Judgment should not be granted. Respondent
thereafter filed an answer to the Motion for Sum-
mary Judgment.
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 and answer to the
Motion for Summary Judgment, Respondent essen-
tially contests the validity of the Union's certifica-
tion. Although Respondent admits its refusal to
bargain, Respondent denies that it thereby violated
Section 8(a)(5) and (1) of the Act. Specifically, Re-
spondent contends that the Union should not have
been certified as the collective-bargaining repre-
sentative of its employees because the Board erred
in finding that Respondent is a joint employer
under the Act.
In its memorandum in support of Motion for
Summary Judgment, the General Counsel argues
that there are no issues requiring a hearing, and
that Respondent is attempting to relitigate issues
which were raised and determined by the Board in
the underlying representation case. We agree with
the General Counsel.
Review of the record herein, including the
record in Case 22-RC-8255, reveals that on June
19, 1980, the Union filed a petition seeking to rep-
resent in a single unit all registered nurses em-
ployed by Respondent at its two locations, and an-
other unit of all licensed practical nurses and serv-
ice and maintenance employees employed by Re-
spondent at the same two locations. Following a
hearing, the Regional Director for Region 22
issued a Decision and Direction of Election finding
Respondent to be a joint employer engaged in
commerce within the meaning of the Act and di-
recting an election in the following units:
Unit A
All full-time and regular part-time registered
nurses employed by the Employer, Brookside
Manor, Inc. and Willowbrook, Inc., at its
Wayne, New Jersey facilities, but excluding all
office clerical employees, confidential employ-
ees, guards and supervisors as defined in the
Act, and all other employees.
Unit B
All full-time and regular part-time service,
maintenance and technical employees, includ-
ing licensed practical nurses, employed by the
Employer, Brookside Manor, Inc. and Willow-
brook, Inc., located [at its] Wayne, New
Jersey facilities, but excluding all office cleri-
cal employees, confidential employees, profes-
BROOKSIDE MANOR, INC. 1135
sional employees, guards and supervisors as
defined in the Act and all other employees.
Respondent filed a request for review, claiming
that the Regional Director erred in not finding
single units of employees presumptively appropri-
ate. The Board denied Respondent's request for
review.
Thereafter, an election was conducted among the
employees in the above-described units. The tally
of ballots in Unit A showed that of approximately
five eligible voters, four cast ballots for the Union,
one ballot was cast against the Union, and none
were challenged or void. The tally of ballots in
Unit B showed that of 79 eligible voters, 53 cast
ballots for the Union, 5 ballots were cast against
the Union, I ballot was void and 4 were chal-
lenged. The challenges were not determinative. No
objections to the conduct of the election were
filed. Accordingly, the Regional Director issued a
Certification of Representative on September 25,
1980, certifying the Union as the exclusive repre-
sentative of the employees in the units herein.
On or about October 15, 1980, the Union re-
quested that Respondent bargain collectively with
it with respect to the wages, hours, and working
conditions of the employees in the units described
above. On October 28, 1980, Respondent refused,
and continues to refuse, to bargain with the Union.
As noted above, Respondent refused, and continues
to refuse, to bargain with the Union because of its
belief that the Regional Director erred in finding
that it was a joint employer and in directing an
election in employerwide units. It thus appears that
Respondent is attempting to raise herein issues
which were raised and determined in the underly-
ing representation case.
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.2
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
2 See Pittsburgh Plate Glass Co. . N.L.R.B.. .113 U.S. 146, 162 (l941);
Rules and Regulations of the Board, Sees. 102.67(0f) and 102.6 9(c).
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 consists of Brookside Manor, Inc.
and Willowbrook, Inc., each of which are New
Jersey corporations, with offices and places of busi-
ness located in Wayne, New Jersey. Respondent is
a health care institution engaged in the operation of
nursing homes. During the year ending November
30, 1980, which period is representative of all times
material herein, Respondent derived gross revenues
in excess of $100,000, and purchased and received
products, goods, and materials valued in excess
of$5,000 which were delivered directly in interstate
commerce from points outside the State of New
Jersey.
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. 3
II. THE LABOR ORGANIZATION INVOLVED
District 1199-J, National Union of Hospital and
Health Care Employees, Retail, Wholesale and De-
partment Store Union, AFL-CIO, is a labor orga-
nization within the meaning of Section 2(5) of the
Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
I. The units
The following employees of Respondent consti-
tute separate units appropriate for collective-bar-
gaining purposes within the meaning of Section
9(b) of the Act:
Unit A
All full-time and regular part-time registered
nurses employed by the Employer, Brookside
Manor, Inc. and Willowbrook, Inc., at its
Wayne, New Jersey facilities, but excluding all
office clerical employees, confidential employ-
ees, guards and supervisors as defined in the
Act, and all other employees.
' In its answer. Respondent denies that it is an employer engaged in
commerce within the meaning of the Act. I finding that Respondent is
engaged in commerce, we note that Respondenit' status as an employer
under he Act was previously determined in the underlying representl-
tion proceeding
BROOKSIDE MANOR, INC.
1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Unit B
All full-time and regular part-time service,
maintenance and technical employees, includ-
ing licensed practical nurses, employed by the
Employer, Brookside Manor, Inc. and Willow-
brook, Inc., [at its] Wayne, New Jersey facili-
ties, but excluding all office clerical employ-
ees, confidential employees, professional em-
ployees, guards and supervisors as defined in
the Act and all other employees.
2. The certification
On September 17, 1980, a majority of the em-
ployees of Respondent in said units, in a secret-
ballot election conducted under the supervision of
the Regional Director for Region 22, designated
the Union as their representative for the purpose of
collective bargaining with Respondent.
The Union was certified as the collective-bar-
gaining representative of the employees in said
units on September 25, 1980, 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 15, 1980, and
at all times thereafter, the Union has requested Re-
spondent to bargain collectively with it as the ex-
clusive collective-bargaining representative of all
the employees in the above-described units. Com-
mencing on or about October 28, 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 units.
Accordingly, we find that Respondent has, since
October 28, 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 units, 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
(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 oper-
ations 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 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 units and, if an understanding is
reached, embody such understanding in a signed
agreement.
In order to insure that the employees in the ap-
propriate units will be accorded the services of
their selected bargaining agent for the period pro-
vided by law, we shall construe the initial period of
certification as beginning on the date Respondent
commences to bargain in good faith with the
Union as the recognized bargaining representative
in the appropriate units. See Mar-Jac Poultry Com-
pany, Inc., 136 NLRB 785 (1962); Commerce Com-
pany 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 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. Brookside Manor, Inc. and Willowbrook, Inc.
is a joint employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. District 199-J, National Union of Hospital
and Health Care Employees, Retail, Wholesale and
Department Store Union, AFL-CIO, is a labor or-
ganization within the meaning of Section 2(5) of
the Act.
3. The following units constitute separate units
appropriate for the purposes of collective bargain-
ing within the meaning of Section 9(b) of the Act:
All full-time and regular part-time registered
nurses employed by the Employer, Brookside
Manor, Inc. and Willowbrook, Inc., at its
Wayne, New Jersey facilities, but excluding all
office clerical employees, confidential employ-
ees, guards and supervisors as defined in the
Act, and all other employees.
All full-time and regular part-time service,
maintenance and technical employees, includ-
ing licensed practical nurses, employed by the
Employer, Brookside Manor, Inc. and Willow-
brook, Inc., [at its] Wayne, New Jersey facili-
ties, but excluding all office clerical employ-
ees, confidential employees, professional em-
ployees, guards and supervisors as defined in
the Act and all other employees.
BROOKSIDE MANOR, INC. 1137
4. Since September 25, 1980, the above-named
labor organization has been and now is the certified
and exclusive representative of all employees in the
aforesaid appropriate units for the purpose of col-
lective bargaining within the meaning of Section
9(a) of the Act.
5. By refusing on or about October 28, 1980, and
at all times thereafter, to bargain collectively with
the above-named labor organization as the exclu-
sive bargaining representative of all the employees
of Respondent in the appropriate units, Respondent
has engaged in and is engaging in unfair labor prac-
tices 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)(l) 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 Respondent,
Brookside Manor, Inc. and Willowbrook, Inc.,
Wayne, New Jersey, 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 District 1199-J, Na-
tional Union of Hospital and Health Care Employ-
ees, Retail, Wholesale and Department Store
Union, AFL-CIO, as the exclusive bargaining rep-
resentative of its employees in the following sepa-
rate appropriate units:
All full-time and regular part-time registered
nurses employed by the Employer, Brookside
Manor, Inc. and Willowbrook, Inc., at its
Wayne, New Jersey facilities, but excluding all
office clerical employees, confidential employ-
ees, guards and supervisors as defined in the
Act, and all other employees.
All full-time and regular part-time service,
maintenance and technical employees, includ-
ing licensed practical nurses, employed by the
Employer, Brookside Manor, Inc. and Willow-
brook, Inc., [at its] Wayne, New Jersey facili-
ties, but excluding all office clerical employ-
ees, confidential employees, professional em-
ployees, guards and supervisors as defined in
the Act and all other employees.
(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 units
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 facilities located at 499 Newark-
Pompton Turnpike and 897 Black Oak Ridge
Road, Wayne, New Jersey, copies of the attached
notice marked "Appendix."4 Copies of said notice,
on forms provided by the Regional Director for
Region 22, after being duly signed by Respondent's
representative, shall be posted by Respondent im-
mediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in con-
spicuous 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 22,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
4 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 "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 District 1199-J, National Union of Hospi-
tal and Health Care Employees, Retail,
Wholesale and Department Store Union,
AFL-CIO, as the exclusive representative of
the employees in the bargaining units de-
scribed below.
BROOKSIDE MANOR, INC I
1138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL 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 WILL, upon request, bargain with the
above-named Union, as the exclusive repre-
sentative of all employees in the bargaining
units 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 units are:
All full-time and regular part-time registered
nurses employed by the Employer, Brook-
side Manor, Inc. and Willowbrook, Inc., at
its Wayne, New Jersey facilities, but exclud-
ing all office clerical employees, confidential
employees, guards and supervisors as de-
fined in the Act, and all other employees.
All full-time and regular part-time service,
maintenance and technical employees, in-
cluding licensed practical nurses, employed
by the Employer, Brookside Manor, Inc.
and Willowbrook, Inc., [at its] Wayne, New
Jersey facilities, but excluding all office
clerical employees, confidential employees,
professional employees, guards and supervi-
sors as defined in the Act and all other em-
ployees.
BROOKSIDE MANOR, INC. AND WIL-
LOWBROOK, INC.