Clarytona Manor, Inc.

National Labor Relations Board - Board Decisions

Aug 19, 1971

192 N.L.R.B. 781 (N.L.R.B. 1971)

CLARYTONA MANOR , INC 781
Clarytona - Manor, Inc. and Illinois Council of County
and Municipal Employees Local Union No. 44,
affiliated with 'American Federation of State, Coun-
ty and Municipal Employees, AFL-CIO. Case
38-CA-1171
August 19;-1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
Upon a charge filed on May 7, 1971, by Illinois
Council of County and Municipal Employees Local
Union No. 44, affiliated with American Federation
of State, County and Municipal Employees,
AFL-CIO, herein called the Union, and duly served
on Clarytona Manor, Inc:, herein called the Respon-
dent, the General Counsel of the National Labor
Relations Board, by the Officer-in-Charge of Subre-
gion 38, issued a complaint on May 17, 1971, 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,, complaint, and notice of hearing
before a Trial Examiner were duly served on the
parties to this proceeding.
With respect to the -unfair labor practices, the
complaint alleges in substance that on April 2, 1971,
following a Board election in Case 38-RC-901, the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate;' and that, commenc-
ing on or about April 5, 1971, and at all times
thereafter, Respondent has refused, and continues 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 May 25, 1971, Respondent filed its answer to the
complaint admitting in part; and denying in part, the
allegations in the complaint and alleging an affirma-
tive defense.
On June 3,,1971, counsel for the General Counsel
filed directly with the Board a Motion` for Summary
Judgment. Subsequently, on June, 14, 1971, the Board
issued' an' order transferring the proceeding 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,
called Answer to 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
powers in colnnection with 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 and its response to
the Notice To Show Cause, Respondent contends
that the certification of the Union was invalid
because Respondent's objections raised issues which
warranted a new election and because the Board
refused to grant a hearing on its objections. The
record in Case 38-RC-901 indicates that pursuant to
a Stipulations for Certification Upon Consent Elec-
tion, the Officer-in-Charge of Subregion 38 conduct-
ed on November 20, 1970,,an election among the 68
employees in the stipulated unit, in which 36 votes
were cast for, and 25 against, the Union and 4 ballots
were challenged. Respondent filed objections to
conduct affecting the results of the election. There-
after it submitted a letter, with attachments, which
was the asserted basis of its objections and in which
it stated that it had no additional documentary
evidence and no oral testimony to submit for the
Regional Director's consideration. Respondent's
objections were based upon two leaflets mailed by
the Union and received at employees' homes during
the 2 days prior to the election. The leaflets were also
distributed in front of Respondent's premises during
the 2 days preceding the election. According to the
Respondent, the leaflets contained union misrepre-
sentations which the Respondent had insufficient
time to rebut, and improperly reported to employees
that the Board favored the Union in the election. On
December 22, 1970, the Regional Director issued a
Report on Objections in which he recommended that
the objections be overruled'in their entirety. Respon-
dent filed exceptions to the Regional Director's
report with the Board, specifically excepting to the
Regional Director's failure to direct a hearing on its
objections. On April 2, 1971, the Board'issued its
Decision and Certification of Representative in
which it rejected Respondent's exceptions, adopted
the Regional Director's findings and recommenda-
tions, and certified the Union. It thus appears that
Respondent seeks herein to relitigate the same issues
considered and determined by the,, Board in the
underlying representation case.
3 Official notice, is taken of the record in the representation 683 (C.t4. 4,4968); Golden Age Beverage Co., 167 NLRB 151; Intertype
proceeding, Case 38-RC-901, as the term "record" is defined is secs. Po. v. Penello, 269 F. Supp. 573 (DC. Va., 1967); Follett Corp., 164
102.68 and 102.69(f) of the Board's Rules and Regulations, Series , 8, as NLRB 378, enfd . 397 F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA.
amended. See LTV Electrosystems, Inc., 166 NLRB 938, enfd . 388 F.2d
192 NLRB No. 114
782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
,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
litigatedin a prior representation'" proceeding?
All issues raised by the Respondent in this
proceeding were or couldRhave,been litigated in the
prior representation proceeding, and the Respondent
does not offer to adduce at a hearing any newly
discovered 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 the Respondent has not raised
any issue which is properly litigable in, this unfair
labor practice proceeding.3 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 THE RESPONDENT
Clarytona _Manor, ,Inc,, is an Illinois corporation
providing services for profit -as a nursing and
convalescent, home at Lewiston, Illinois. During the
past calendar years Respondent's gross revenues
from kits- Lewiston, Illinois, operation were in excess
of $100,000. Additionally,, during the same period of
time, Respondent purchased and received goods' and
materials which originated from outside the State of
Illinois in excess of $2,000.
We -find, on , the -basis ^of the foregoing, that
Respondent is, and -has ' been at all times material
herein, and 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.
H. THE LABOR ORGANIZATION INVOLVED
,,Illinois Council of County and Municipal Employ-
ees Local No. 44, affiliated with American Federa-
tion of State, County and Municipal Employees,
AFL-'CIO, is a labor', organization within the mean-
ing of Section-2(5), of the Act.
III. THE UNFAIR' LABOR PRACTICES
A. The Representation pimeeding
1. The unit'
The following employees of the Respondent
constitute a unit appropriate for collective-bargain-
ing purposes within, the- meaning of Section 9(b) of
the Act:
All full-time and, regular part-time , nurses aides,
orderlies, licensed practical -nurses, housekeepers,
dietary workers, laundry employees and activity
employees employed by the Employer at its
Lewiston, Illinois,, facility; but excluding regis-
tered nurses, office clerical, employees, technical
and professional employees , guards, dietary su-
pervisor, laundry supervisor, maintenance super-
visor, and other supervisors as defined in the Act.
2. The certification
On November 20, 1970, a majority of the employ-
ees of Respondent in said unit , in a secret ballot
election conducted under the supervision , of the
Regional Director for Region 13, designated, the
Union as their representative for the purpose , of
collective bargaining with the, Respondent. The
Union was certified as the ' collective-bargaining
representative of the employees , in said unit , on April
2, 1971, 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 April 5, 1971, and at all
times thereafter, the 'Union has ' requested the
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 Apri15, 1971, and continuing at
all times thereafter to date , the Respondent has
refused, and continues to refuse, to recognize and
bargain with the Union as the exclusive representa-
tive for collective bargaining of all employees in said
unit.'
Accordingly, we find that the 'Respondent has,
since April' 5, , 1971, and', at all times thereafter,
refused to bargain collectively with, the Union as the
exclusive representative' of the employees in the
appropriate unit, and that, by such refusal, Respon-
2 See Pittsburgh Plate Glass Co. v. N.LRB., 313 U.S. 146, 162 (1941); requested by a respondent in an unfair labor practice proceeding . We find
Rules and Regulations of the Board, Secs. '102.67(f) and 102,69(c). no merit in this contention. See Janler 'Plastic'Mold Corp., 191 NLRB No.
3 In its response toCthe Notice To Show Cause the Respondent also 24;' Crest Leather Manufacturing Corporation, 167 NLRB 1085,'1086, and
contends that Section 10(b)'of the Act precludes the granting of the Motion cases cited therein.
for Summary Judgment because it makes a hearing mandatory where
CLARYTONA MANOR, INC. 783
dent 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 LAEOR
PRACTICES UPON COMMERCE
The activities of the 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,
traffic, and'commerce among the-several States and
tend to lead to labor disputes burdening and
obstructing 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
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 commenc-
es to bargain in good faith with the Union as the
recognized bargaining representative in the appropri-
ate unit. See Mar-Jac Poultry Company, Inc., 136
NLRB 785; Commerce Company d/bla Lamar Hotel,
140 NLRB 226, 229, enfd. 328 F.2d 600 (C.A. 5),
cert. denied 379 U.S. 817; Burnett Construction
Company, 149 NLRB 1419, 1421, enfd. 350 F.2d 57
(C.A. 10).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Clarytona Manor, Inc., is an employer engaged
in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Illinois Council of County and Municipal
Employees Local Union No. 44, affiliated with
American Federation of State, County and Munici-
pal Employees, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. All full-time and regular part-time nurses aides,
orderlies, licensed practical nurses , housekeepers,
dietary workers, laundry employees and activity
employees employed by the Employer at its Lewis-
ton, Illinois, • facility; but excluding registered
nurses, office clerical employees, `technical and
professional - employees, guards, dietary supervisor,
laundry supervisor, maintenance supervisor, and
other 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 April 2, 1971, 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 April 5, 1971, 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, coerced, and is
interfering with, restraining, and coercing; employees
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 Respondent,
Clarytona Manor, Inc., its officers, agents, succes-
sors, 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 Illinois Council of
County and Municipal Employees Local Union No.
44, affiliated with American Federation of State,
County and Municipal Employees, AFL-CIO, as the
exclusive bargaining representative of its employees
in the following appropriate unit:
All full-time and regular part-time nurses aides,
orderlies, licensed practical nurses, housekeepers,
dietary workers, laundry employees and activity
employees employed by the Employer at its
Lewiston, Illinois, facility; but excluding regis-
tered nurses, office clerical employees, technical
and professional employees, guards, dietary su-
pervisor, laundry supervisor, maintenance super-
visor, and other supervisors as defined in the Act.
784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) In any like or, related manner interfering with,
restraining, or coercing , employees in 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 Lewiston, Illinois, copies of
the attached notice marked "Appendix."4 Copies of
said -notice, on forms provided by the Officer-in-
Charge of Subregion 38, after being duly signed by
Respondent's representative , shall be posted by
Respondent immediately, upon receipt thereof, and
be maintained by it for X60jconsecutive,,days^thereaF.
tier,{in'pOnspicuous places, including all places where
notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered
by any other material.
(c) Notify the Officer-in-Charge of Subregion 38, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
Federation of State,_ County and Municipal
Employees, AFL-CIO, as the exclusive represent-
ative 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 understandingis reached,
embody such understanding in a signed agree-
ment. The bargaining unit is:
All full-time and regular part-time nurses
aides, orderlies, licensed practical nurses,
housekeepers, dieiary workers, laundry em-
ployees and activity employees employed by
the Employer at' its Lewiston, Illinois,
facility; but excluding registered nurses,
office clerical employees, technical and
professional employees, guards, dietary su-
pervisor, laundry supervisor, maintenance
supervisor, and other supervisors as defined
in the Act.
In the event that the Board 's 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
be changed to 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 Illinois
Council of County and Municipal Employees
Local Union No. 44. affiliated with American
CLARYTONA MANOR,
INC.
(Employer)
Dated By '
(Representative) (Title)
This is an official 'noticeand must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or` compli-
ance with its provisions may be directed to the
Board's Office, Savings Center Tower, 10th Floor,
.411 Hamilton Boulevard, Peoria, Illinois 61602,
Telephone "309-673-9282.