Convalescent West

National Labor Relations Board - Board Decisions

Mar 16, 1977

228 N.L.R.B. 736 (N.L.R.B. 1977)

736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Louisiana Corporation, Inc. d/b/a Convalescent West
and Hospital and Institutional Workers Local 250,
Service Employees International Union, AFL-
CIO. Case 20-CA-11949
March 16, 1977
DECISION AND ORDER
By CHAIRMAN MURPHY AND MEMBERS
FANNING AND JENKINS
Upon a charge filed on September 22, 1976, by
Hospital and Institutional Workers Local 250,
Service Employees International Union, AFL-CIO,
herein called the Union, and duly served on
Louisiana Corporation, Inc. d/b/a Convalescent
West, herein called Respondent, the General Counsel
of the National Labor Relations Board, by the
Regional Director for Region 20, issued a complaint
and notice of hearing on October 28, 1976, 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 an Administrative Law Judge were duly
served on the pasties to this proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on July 22, 1976,
following a Board election in Case 20-RC-12272, 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 August 19, 1976, 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 November 9, 1976, Respondent filed its answer to
the complaint admitting in part, and denying in part,
the allegations in the complaint.
On November 26, 1976, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on December 9,
1976, 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. Respon-
i Official notice is taken of the record in the representation proceeding
Case 20-RC-12272, 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 Eleclrosyslems, Inc, 166 NLRB 938 (1967), enfd. 388 F.2d 683 (C.A. 4,
1968); Golden Age Beverage Co, 167 NLRB 151 (1967), enfd. 415 F.2d 26
(C A. 5, 1969), Iniertype Co v. Penello, 269 F. Supp. 573 (D.C Va, 1967);
Follett Corp, 164 NLRB 378 (1967), enfd. 397 F2d 91 (C.A. 7, 1968), Sec.
9(d) of the NLRA, as amended.
dent thereafter filed a response to Notice To Show
Cause entitled `Respondent's Answer to Notice To
Show Cause and Request for Oral Argument."
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Upon the entire record in this proceeding,2 the
Board makes the following:
Ruling on the Motion for Summary Judgment
In its answer to the complaint and response to the
Notice To Show Cause Respondent, in substance,
denies the validity of the Union's majority status and
certification and asserts that it was denied due
process in that it was not afforded a hearing on
certain of its objections to the election in the
underlying representation case . The General Counsel
contends that there are no disputed issues of fact
requiring a hearing in this proceeding. We agree.
Review of the entire record, including that in Case
20-RC-12272, discloses that pursuant to a Stipula-
tion for Certification Upon Consent Election, an
election was held on November 7, 1974, among
Respondent's employees in a bargaining unit of
health care employees referred to as "Unit B."3 The
Union prevailed 14 to 8. Respondent filed timely
objections to conduct affecting the results of the
election alleging, in substance, (1) that the Union (a)
made material misrepresentations of fact and law to
the employees; (b) made threats of personal injury
against the employees if they did not vote for the
Union; (c) made promises of benefits to employees;
(d) offered to waive union initiation fees; (e)
permitted overt acts of violence, intimidation, and
property damage which interfered with the fair
conduct of the election; (f) interrogated employees
regarding their election preferences; and (g) cam-
paigned and electioneered through supervisors
and/or management personnel; and (2) that the
Board failed to insure that employees voted only
once and failed to safeguard the integrity of the
election and the balloting process.
Upon investigation, the Acting Regional Director
issued on April 28, 1975, a report on challenged
ballots and objections, order consolidating cases, and
notice of hearing which, inter alia, recommended
overruling all Respondent's objections except with
regard to the waiver of initiation fees and ordered a
2 Respondent 's request for oral argument is hereby denied as the
submissions of the General Counsel and Respondent adequately present the
positions of the parties.
3 Similar elections were held among health care employees of the Spring
Road Corporation, Inc. d/b/a Convalescent East and the Heartwood
Avenue Corporation d/b/a The Heartwood located m Vallejo, California.
These bargaining units were referred to as "Unit A" and "Unit C,"
respectively.
228 NLRB No. 81
CONVALESCENT WEST 737
hearing, consolidated with the hearing in Case 20-
CA-9799, to be held thereon before an Administra-
tive Law Judge. Respondent subsequently filed
timely exceptions with the Board alleging that 11 of
its objections were erroneously overruled without a
hearing on the substantial and material issues raised
thereby. On November 12, 1975, the Board issued a
Decision and Order (221 NLRB 608) adopting the
Acting Regional Director's report and directing, inter
alia, that a hearing be held only on Respondent's
objection concerning the waiver of union initiation
fees. After the hearing, the Administrative Law
Judge issued a Decision on April 9, 1976, recom-
mending to the Board that the Respondent's objec-
tions be overruled and that the Union be certified in
Unit B. Respondent filed exceptions, with a brief, to
the Administrative Law Judge's Decision, reiterating
its waiver of initiation fees objection. The Board
issued a Decision, Order, Certification, and Direc-
tion of Second Election on July 22, 1976, which, inter
alia, overruled Respondent's exceptions and certified
the Union in Unit B (225 NLRB 719).
It thus appears that Respondent is raising issues
which have been considered and resolved in the
underlying representation case. Respondent con-
tends in its response to Notice To Show Cause that
the failure to hold a hearing on its other objections
constitutes a denial of due process. We find no merit
in his contention. In footnote 2 of its Decision and
Order of November 12, 1975, the Board, in adopting
the Acting Regional Director's recommendation for
a hearing only as to Respondent's objection concern-
ing the waiver of union initiation fees, specifically
found that "the Employer's exceptions in our opinion
raise no issue which would warrant reversal of the
Acting Regional Director's findings, conclusions,
and recommendations." In so doing, the Board
necessarily found that there were no substantial and
material issues warranting a hearing. To be entitled
to a hearing Respondent must raise substantial or
material issues which would warrant setting aside the
election.4 This qualified right to a hearing satisfies all
statutory and constitutional requirements of due
process.5 As Respondent here did not satisfy the
qualifications for a hearing in that it failed to raise
substantial or material issues in the representation
case below, it has not been denied due process by the
Board's failure to grant a hearing on those issues.6
4 N L.R B v Modme Manufacturing Co, 500 F 2d 914 , 916 (C A. 8,
1974), enfg 203 NLRB 527 (1973)
Allied Meat Company, 220 NLRB 27 (1975); Amalgamated Clothing
Workers of America [Winfield Manufacturing Company] v N L.R B, 424
F 2d 818, 828 (C A D C., 1970)
" CSC Oil Company, 220 NLRB 19 ( 1975), Big Three Industries, Inc,
Formerly, Big Three Industrial Gas & Equipment Co, 214 NLRB 580 (1974),
Raub Supply Company, 215 NLRB 830 (1974)
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
litigated in a prior representation proceeding.?
All issues raised by Respondent in this proceeding
were or could have been litigated in the prior
representation proceeding, and 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 Respondent has not raised any issue which
is properly litigable in this unfair labor practice
proceeding. We shall, accordingly, grant the Motion
for Summary Judgment.8
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is now, and has been at all times
material herein, a corporation doing business in the
State of California, with an office and place of
business at Vallejo, California, where it is engaged in
the operation of a skilled nursing facility in the
health care industry. Respondent, in the normal
course and conduct of its business operations, had
gross revenues in excess of $100,000 during the
calendar year 1974 and received in excess of $5,000
from the State of California Medi-Cal program
during that time.
We find, on the basis of the foregoing, that
Respondent 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
Hospital and Institutional Workers Local 250,
Service Employees International Union, AFL-CIO,
is a labor organization within the meaning of Section
2(5) of the Act.
7 See Pittsburgh Plate Glass Co v NLRB, 313 U.S. 146, 162 (1941),
Rules and Regulations of the Board , Secs 102 67(f) and 102 69(c).
9 The granting of the General Counsel 's Motion for Summary Judgment
is appropriate in those cases where , as here , the issues raised have been
previously considered and there are no other substantial and material issues
of fact warranting a hearing Madisonville Concrete Co a Division of Corum
& Edwards, Inc, 220 NLRB 668 (1975), Wells Fargo Alarm Services, A
Division of Baker Industries, Inc, 218 NLRB 68 (1975).
738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 nursing
department , housekeeping department and di-
etary department employees employed by Louisi-
ana Corporation, Inc. d/b/a Convalescent West, at
its facility located in Vallejo, California, including
licensed vocational nurses, nurses aides, house-
keepers, janitors, cooks, dietary aides, laundry
workers and maintenance employees; excluding
registered nurses, 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.
2. The certification
On November 7, 1974, a majority of the employees
of Respondent in said unit, in a secret ballot election
conducted under the supervision of the Regional
Director for Region 20, designated the Union as their
representative for the purpose of collective bargain-
ing with Respondent. The Union was certified as the
collective-bargaining representative of the employees
in said unit on July 22, 1976, 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 August 10, 1976, and at
all times thereafter, the Union has requested Respon-
dent to bargain collectively with it as the exclusive
collective-bargaining representative of all the em-
ployees in the above-described unit. Commencing on
or about August 19, 1976, 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
August 19, 1976, 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-
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 LABOR
PRACTICES UPON COMMERCE
The activities of 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 (1962); Commerce Company d/b/a Lamar
Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600
(C.A. 5, 1964), cert. denied 379 U.S. 817 (1964);
Burnett Construction Company, 149 NLRB 1419, 1421
(1964), enfd. 350 F.2d 57 (C.A. 10, 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Louisiana Corporation, Inc. d/b/a Convales-
cent West is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Hospital and Institutional Workers Local 250,
Service Employees International Union, AFL-CIO,
is a labor organization within the meaning of Section
2(5) of the Act.
3. All full-time and regular part-time nursing
department, housekeeping department and dietary
department employees employed by Louisiana Cor-
poration, Inc. d/b/a Convalescent West, at its facility
located in Vallejo, California, including licensed
vocational nurses, nurses aides, housekeepers, jani-
tors, cooks, dietary aides, laundry workers and
maintenance employees; excluding registered nurses,
office clerical employees, guards and supervisors as
defined in the Act, constitute a unit appropriate for
CONVALESCENT WEST 739
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. Since July 22, 1976, 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 August 19, 1976, 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, and coerced, and
is interfering with, restraining, and coercing, employ-
ees 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
(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 under-
standing is reached, embody such understanding in a
signed agreement.
(b) Post at its Vallejo, California, skilled nursing
facility copies of the attached notice marked "Ap-
pendix."9 Copies of said notice, on forms provided
by the Regional Director for Region 20, 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 Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board hereby orders that the Respondent,
Louisiana Corporation , Inc. d/b/a Convalescent
West, Vallejo , California , 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 Hospital and Institu-
tional Workers Local 250 , Service Employees Inter-
national Union , AFL-CIO, as the exclusive bargain-
ing representative of its employees in the following
appropriate unit:
All full-time and regular part -time nursing
department , housekeeping department and di-
etary department employees employed by Louisi-
ana Corporation, Inc. d/b/a Convalescent West, at
its facility located in Vallejo , California, including
licensed vocational nurses, nurses aides, house-
keepers, janitors, cooks , dietary aides, laundry
workers and maintenance employees ; excluding
registered nurses, 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.
9 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 "
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 Hospi-
tal and Institutional Workers Local 250, Service
Employees International Union, 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 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 understanding is reached,
740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
embody such understanding in a signed agree-
ment . The bargaining unit is:
All full-time and regular part-time nurs-
ing department , housekeeping department
and dietary department employees em-
ployed by Louisiana Corporation, Inc. d/b/a
Convalescent West, at its facility located in
Vallejo, California, including licensed voca-
tional nurses, nurses aides, housekeepers,
janitors , cooks, dietary aides , laundry work-
ers and maintenance employees ; excluding
registered nurses, office clerical employees,
guards and supervisors as defined in the Act,
constitute a unit appropriate for the purpos-
es of collective bargaining within the mean-
ing of Section 9(b) of the Act.
LOUISIANA CORPORATION,
INC. D/B/A
CONVALESCENT WEST