Clark Manor Nursing Home Corp.

National Labor Relations Board - Board Decisions

Jun 9, 1981

256 N.L.R.B. 456 (N.L.R.B. 1981)

456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Clark Manor Nursing Home Corp. and United Food
and Commercial Workers International Union,
Local 1445, AFL-CIO. Case -CA-18352
June 9, 1981
DECISION AND ORDER
Upon a charge filed on December 20, 1981, by
United Food and Commercial Workers Internation-
al Union, Local 1445, AFL-CIO, herein called the
Union, and duly served on Clark Manor Nursing
Home Corp., herein called Respondent, the Gener-
al Counsel of the National Labor Relations Board,
by the Regional Director for Region 1, issued a
complaint and notice of hearing on March 12,
1981, 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 proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on January 14,
1981, following a Board election in Case -RC-
16263, the Union was duly certified as the exclu-
sive collective-bargaining representative of Re-
spondent's employees in the unit found appropri-
ate;' and that, commencing on or about February
2, 1981, and at all times thereafter, Respondent has
refused, and continues to date to refuse, to bargain
collectively with the Union as the exclusive bar-
gaining representative, although the Union has re-
quested and is requesting it to do so. On March 20,
1981, Respondent filed its answer to the complaint
admitting in part, and denying in part, the allega-
tions in the complaint.
On April 6, 1981, counsel for the General Coun-
sel filed directly with the Board a Motion for Sum-
mary Judgment. Subsequently, on April 5, 1981,
the Board issued an order transferring the proceed-
ing to the Board and a Notice To Show Cause
why the General Counsel's Motion for Summary
Judgment should not be granted. Respondent
thereafter filed a response in opposition thereto and
a "Motion To Dismiss the Complaint."
Upon the entire record in this proceeding, the
Board makes the following:
t Official notice is taken of the record in the representation proceed-
ing, Case 1-RC-16263, 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 Electrosystemrns, 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); Intertype Co. v. Penello, 269 F.Supp. 573
(D.C.Va. 1967); Follerr Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91
(7th Cir. 1968); Sec. 9(d) of the NLRA, as amended.
256 NLRB No. 74
Ruling on the Motion for Summary Judgment
In its answer to the complaint, its response to the
Notice To Show Cause, and its motion to dismiss
the complaint, Respondnet admits that it refused
the Union's request to bargain, but argues that it
has no duty to bargain because of the erroneous
decision sustaining the challenges to the ballots of
Ann Sansoucy and Rita McMenemy. The General
Counsel contends that Respondent seeks to reliti-
gate issues previously considered in the underlying
representation proceeding.
Our review of the record herein, including the
record in Case 1-RC-16263, discloses that the Re-
gional Director for Region 1 approved a Stipula-
tion for Certification Upon Consent Election on
April 20, 1979. On May 17, 1979, a secret-ballot
election was conducted, in which the tally was six
for, and five against, the Union. There were two
determinative challenges. On May 22, 1979, the
Union filed timely objections to the election. On
June 28, 1979, the Acting Regional Director issued
and served on the parties his Report on Objections
and Challenged Ballots recommending in relevant
part that certain of the objections and the chal-
lenged ballots be consolidated with pending unfair
labor practices cases for hearing before an adminis-
trative law judge. On August 22, 1979, the Board
adopted the Acting Regional Director's Report on
Objections and Challenged Ballots and issued an
order directing hearing. After a hearing in the con-
solidated proceeding, the Administrative Law
Judge issued a Decision recommending that Case
I-RC-16263 be severed from the consolidated pro-
ceeding, that the challenges to the ballots of San-
soucy and McMenemy be sustained, and that the
Union be certified in the unit found appropriate,
with the additional exclusion of the activity direc-
lor. On January 14, 1981, the Board issued a Deci-
sion, Order, Direction of Second Election, and
(Certification of Representative in which it adopted
the recommendations of the Administrative Law
Judge with respect to Case -RC-16263. 2
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.3
All issues raised by Respondent in this proceed-
ing were or could have been litigated in the prior
representation proceeding, and Respondent does
1 254 NLRB 455. However, in issuing the Certification of Representa-
tive, the Board neglected to exclude the position of activity director from
the appropriate unit. Accordingly, we shall correct this inadvertent error.
3 See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c).
CLARK MANOR NURSING HOME CORP. 457
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
General Counsel's Motion for Summary Judgment
and deny Respondent's motion to dismiss the com-
plaint.
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is a Massachusetts corporation, with
its principal place of business in Worcester, Massa-
chusetts. It is engaged in the business of operating
a proprietary nursing home. During the past calen-
dar year, which is a representative period, Re-
spondent received gross revenues in excess of
$100,000 and received goods valued in excess of
$50,000 directly from suppliers located outside the
Commonwealth of Massachusetts.
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 INVOLVED
The Union, United Food and Commercial Work-
ers International Union, Local 1445, AFL-CIO, 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 consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All technical employees including licensed
practical nurses and the physical therapist as-
sistant but excluding all other employees, reg-
istered nurses, business office clericals, the ac-
tivity director, professional employees, guards
and supervisors as defined in the Act.
2. The certification
On May 17, 1979, a majority of the employees of
Respondent in said unit, in a secret-ballot election
conducted under the supervision of the Acting Re-
gional Director for Region , 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 unit
on January 14, 1981, 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 January 28, 1981, 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 unit. Com-
mencing on or about February 2, 1981, 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 2, 1981, 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
(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 unit and, if an understanding is
458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 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. Clark Manor Nursing Home Corp. is an em-
ployer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. United Food and Commercial Workers Inter-
national Union, Local 1445, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of
the Act.
3. All technical employees including licensed
practical nurses and the physical therapist assistant
but excluding all other employees, registered
nurses, business office clericals, the activity direc-
tor, professional 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 January 14, 1981, 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 2, 1981, 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 unit, 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)(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,
Clark Manor Nursing Home Corp., Worcester,
Massachusetts, 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 United Food and
Commercial Workers International Union, Local
1445, AFL-CIO, as the exclusive bargaining repre-
sentative of its employees in the following appro-
priate unit:
All technical employees including licensed
practical nurses and the physical therapist as-
sistant but excluding all other employees, reg-
istered nurses, business office clericals, the ac-
tivity director, professional employees, guards
and supervisors as defined in the Act.
(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 facility at Worcester, Massachu-
setts, copies of the attached notice marked "Appen-
dix." 4 Copies of said notice, on forms provided by
the Regional Director for Region 1, 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-
4 In the event that this Order is enforced by a Judgment of a United
Slates Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
alnt to a Judgment of the United States Court of Appeals Enforcing an
Order o the National Labor Relations Board."
CLARK MANOR NURSING HOME CORP. 459
spondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 1, 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 Food and Commercial Workers
International Union, Local 1445, AFL-CIO, as
the exclusive representative of the employees
in the bargaining unit described below.
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
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 technical employees including licensed
practical nurses and the physical therapist
assistant but excluding all other employees,
registered nurses, business office clericals,
the activity director, professional employees,
guards and supervisors as defined in the Act.
CLARK MANOR NURSING HOME
CORP.