East Michigan Care Corp.

National Labor Relations Board - Board Decisions

Nov 14, 1979

246 N.L.R.B. 458 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
East Michigan Care Corporation, Marlin Manor Divi-
sion, A Wholly Owned Subsidiary of Care Corpora-
tion and Michigan Licensed Practical Nurses Asso-
ciation. Case 7 CA-16403
November 14. 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS MURPIHY
AND TRUESDALE
Upon a charge filed on May 22, 1978, by Michigan
Licensed Practical Nurses Association, herein called
the Union, and duly derved on East Michigan Care
Corporation, Marlin Manor Division, A Wholly
Owned Subsidiary of Care Corporation, herein called
Respondent, the General Counsel of the National La-
bor Relations Board, by the Regional Director for
Region 7, issued a complaint on June 11, 1979,
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 Na-
tional Labor Relations Act, as amended. Copies of
the charge and complaint were duly served on the
parties to this proceeding.
With respect to the unfair labor practices, the com-
plaint alleges in substance that on March 30, 1979,
following a Board election in Case 7-RC-15073, the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate;' and that, commencing
on or about May 10, 1979, and at all times thereafter,
Respondent has refused, and continues to date to re-
fuse, to bargain collectively with the Union as the
exclusive bargaining representative, although the
Union has requested and is requesting it to do so. On
June 19, 1979, Respondent filed its answer to the
complaint admitting in part, and denying in part, the
allegations in the complaint.
On July 2, 1979, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment with exhibits attached. Subsequently, on
July 13, 1979, 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-
mary Judgment should not be granted. Respondent
thereafter filed a response to the Notice To Show
Cause.
'Official notice is taken of the record in the representation proceeding.
Case 7 RC 15073, 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 Electrosystems, 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 (DC.Va. 19671;
Follelt Corp. 164 NI.RB 378 (1967). enfd. 397 F.2d 91 (7th (Cir. 1968): Sec.
9(d) of the NLRA, as amended.
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 for Summary Judgment
In its answer to the complaint and its response to
the Notice To Show Cause, Respondent admits the
request and the refusal to bargain. However, it asserts
that the certification of the Union in the underlying
representation proceeding is invalid because the Re-
gional Director in his Decision and Direction of Elec-
tion erroneously rejected Respondent's contention
that all its nurses at its West North Street, Jackson,
Michigan, facility were statutory supervisors. Hence,
according to Respondent, the Regional Director erro-
neously directed an election in a unit of all full-time
and part-time nurses at that facility. It further asserts
that, following the election, the Regional Director in
his Supplemental Decision on Determinative Chal-
lenges and Order erroneously overruled Respondent's
challenges to the ballots cast by its nurses which Re-
spondent had challenged on the ground that the
nurses were supervisors. Finally, Respondent con-
tends that summary judgment is inappropriate herein
because new evidence exists with respect to changes
in the duties of its nurses since the date of the hearing
in the underlying representation proceeding which es-
tablishes that its nurses are statutory supervisors and
which requires the holding of a hearing.
Review of the record herein, including the repre-
sentation proceeding in Case 7 RC 15073, reveals
that on September 12, 1978, Local 79, Service Em-
ployees International Union, AFL CIO. filed a peti-
tion under Section 9 of the National Labor Relations
Act seeking certification as the collective-bargaining
representative of certain nurses employed by Respon-
dent at its facility located at 434 West North Street,
Jackson, Michigan. The Michigan Licensed Practical
Nurses Association, the Union herein, was permitted
to intervene at the hearing subsequently conducted
on the petition. Following the hearing, the Regional
Director for Region 7 issued a Decision and Direc-
tion of Election on November 15, 1978, in which he,
inter alia, rejected Respondent's contention that all
the nurses at its facility were supervisors within the
meaning of the Act and that, therefore, the petition
should be dismissed. Based on his consideration of
the various duties and responsibilities of the nurses,
including the fact that the great majority of the
nurses' work was patient-related, and that the nurses
had no authority to carry out directly or to recom-
246 NLRB No. 72
458
EAST MICHIGAN ('ARE CORPORATION
mend effectively personnel action involving employ-
ees, the Regional Director concluded that the peti-
tioned-for nurses were not supervisors as defined in
the Act, and that the guidance they gave to, and lim-
ited supervision they exercised over, other employees
occurred in the exercise of professional judgment inci-
dental to the treatment of patients. Since the parties
had stipulated to the appropriateness of a single unit
of all nurses and to their community of interest, the
Regional Director directed an election among all full-
time and part-time nurses at Respondent's facility.
Respondent thereafter requested review of the Re-
gional Director's decision. By telegraphic order dated
December 14, 1978, the Board denied review.
Thereafter, on December 15, 1978, an election was
conducted among the employees in the unit found
appropriate. The tally of ballots showed that all 16
ballots cast were challenged. The challenged ballots
were determinative of the election results. No objec-
tions to the election were filed by the parties.
Thereafter, the parties entered into a stipulation
that two of the challenged ballots were cast by ineligi-
ble employees and that the challenges to their ballots
be sustained. On January 16, 1979, the Regional Di-
rector approved the parties' stipulation and served on
them a corrected tally of ballots.
On January 18, 1979, the Regional Director issued
a Supplemental Decision on Determinative Chal-
lenges and Order, in which he found, inter alia, that
the Employer did not contend that its nurses' duties
had changed in any way since the issuance of the
Decision and Direction of Election and that the Em-
ployer had submitted no evidence in support of its
position on the challenges which was not presented
either at the representation hearing or in its request
for review. He therefore concluded that the Employer
was attempting, through the challenge procedure, and
without presenting newly discovered or previously
unavailable evidence, to relitigate issues which were
fully litigated and resolved at the original representa-
tion hearing. Accordingly, he overruled the chal-
lenges to the remaining 14 ballots cast and ordered
that these ballots be opened and counted and that a
revised tally be issued. Thereafter, Respondent re-
quested review of the Regional Director's Supple-
mental Decision, in which it again contended that its
nurses were statutory supervisors. By telegraphic or-
der dated March 2, 1979, the Board denied Respon-
dent's request for review. Subsequently. pursuant to
the Regional Director's Supplemental Decision, the
14 challenged ballots were opened and counted and a
revised tally of ballots was issued which showed 13
votes cast for the Michigan Licensed Practical Nurses
Association, no votes cast for Local 79, Service Em-
ployees International Union, and I vote cast against
the participating labor organizations. On March 30,
1979, the Acting Regional Director certified the
Michigan Licensed Practical Nurses Association as
the exclusive bargaining representative of the employ-
ees in the unit found appropriate.
It is well settled that in the absence of newlK dis-
covered 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.-
In the instant proceeding, Respondent has raised
defenses based on its contentions previously made
and rejected in the underlying representation pro-
ceeding.' Additionally, apart from the arguments
which it presented during the underlying representa-
tion proceeding, Respondent offers to adduce at a
hearing allegedly newly discovered and previously
unavailable evidence and asserts that changed cir-
cumstances exist here which require the Board to re-
examine the decision made in the representation pro-
ceeding. Respondent has submitted affidavits of its
management personnel and other documentary evi-
dence in support of its allegations. Such evidence re-
lates to alleged changes in the duties of its nurses
since the election held on December 15. 1978. and,
more specifically, since January 1., February 25. and
March 10, 1979, respectively. The additional evidence
which Respondent now seeks to adduce does not in-
volve facts which existed at the time of the hearing in
the underlying proceeding and, therefore, does not
constitute newly discovered and previously unavail-
able evidence. Moreover. we note that, although Re-
spondent's changes in the duties of its nurses alleg-
edly occurred prior to the Union's certification, it did
not at that time nor thereafter seek to adduce such
additional evidence in the underlying representation
proceeding by filing a motion to reopen the record or
otherwise. It thus appears that Respondent is seeking
to relitigate the same issue which was litigated in the
underlying representation proceeding. Furthermore,
Respondent, in effect, is arguing that it has made such
drastic changes in the duties of its nurses during the
period between the election on December 15, 1978,
and the Union's certification on March 30, 1979, that
it has eliminated the unit, all without bargaining. This
assertion, if true, would simply constitute additional
evidence of Respondent's refusal to bargain since Re-
2See Ptt.sburgh Plate Glass C v. , L1 R B.. 313 S. 146. 162 (1941);
Rules and Regulations of the Board Sees. 102.67(f) and 102.69c).
' Respondent has submitted a cops of a letter. dated May 10, 1979. in
which ts attorney advised the Union that it was refusing to bargain with the
latter n order to obtain further review of the Regional Director's decision
and he Board's denial of review thereof with respect to its position that the
nurses n the bargaining unit were super, ors
459
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent thereby would have made unilateral
changes without bargaining.4
All issues raised by Respondent in this proceeding
were or could have been litigated in the prior repre-
sentation proceeding, and Respondent does not offer
to adduce at a hearing any newly discovered or previ-
ously unavailable evidence, nor does it allege that any
special circumstances exist herein which would re-
quire the Board to reexamine the decision made in
the representation proceeding. We therefore find that
Respondent has not raised any issue which is prop-
erly litigable in this unfair labor practice proceeding.
Accordingly, we grant the General Counsel's Motion
for Summary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. TIlE BUSINESS OF RESPONDENT
Respondent is, and has been at all times material
herein, a Michigan corporation with an office and
place of business located at Jackson, Michigan, where
it is engaged in the operation of a skilled care nursing
home facility. During the year ending December 31,
1978, which period is representative of its operations
during all times material hereto, Respondent, in the
course and conduct of its business operations, pur-
chased and caused to be transported and delivered at
its Jackson facility food, supplies, pharmaceutical
supplies, and other goods and materials valued in ex-
cess of $500,000, of which goods and materials valued
in excess of $50,000 were transported and delivered to
said facility in Jackson, Michigan, and received from
other enterprises located in the State of Michigan,
each of which other enterprises had received the said
goods and materials delivered to Respondent's Jack-
son facility directly from points located outside the
State of Michigan.
We find, on the basis of the foregoing, that Respon-
dent 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.
4 See Highland Terrace Convalescent Center. etc, 233 NLRB 87, 88 (1977}.
There the alleged change in the supervisor) authority of nurses was made
after the date of certification and apparently. in part. after the date of the
employer's refusal to bargain. Although the alleged changes in the instant
case assertedly were made prior to the Union's certification and belbre Re-
spondent's May 10. 1979. refusal to bargain. the principles (of Highland Ter-
race are still applicable. In this regard, it is well settled that when a union has
received a majority of the votes cast in an election an employer acts at its
peril in unilaterally changing the terms and working conditions of its em-
ployees before certification of the union. Mike O'Connor Chevrolet-Biick-
GMC Co., Inc., and Pat O'Connor Chevrolet-Buick-GMC Co., Inc., 209
NLRB 701, 703 (1974).
II. Jil; LAB()R OR(iANIZATION INVOLIVEI)
Michigan Licensed Practical Nurses Association is
a labor organization within the meaning of Section
2(5) of the Act.
111. Fill: UNFAIR .ABO()R PRACTIC(ES
A. The Representation Proceeding
I. 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 nurses em-
ployed by the Employer at its facility located at
434 West North Street, Jackson, Michigan, but
excluding nurses' aides, orderlies, dietary em-
ployees, housekeeping employees. laundry em-
ployees, general maintenance employees, man-
agerial employees, confidential employees, office
clerical employees, activity employees, casual
employees, professional employees, guards, and
supervisors as defined in the Act, and all other
employees.
2. The certification
On December 15, 1978, a majority of the employ-
ees of Respondent in said unit, in a secret-ballot elec-
tion conducted under the supervision of the Regional
Director for Region 7, designated the Union as their
representative fr the purpose of collective bargaining
with Respondent. The Union was certified as the col-
lective-bargaining representative of the employees in
said unit on March 30, 1979, and the Union continues
to be such exclusive representative within the mean-
ing of Section 9(a) of the Act.
B. The Request To Bargain and Respondent's ReJitsal
Commencing on or about May 3, 1979, and at all
times thereafter, the Union has requested Respondent
to bargain collectively with it as the exclusive collec-
tive-bargaining representative of all the employees in
the above-described unit. Commencing on or about
May 10, 1979, and continuing at all times thereafter
to date, Respondent has refused, and continues to re-
fuse, 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
May 10, 1979, and at all times thereafter, refused to
460
EAST MICHIGAN (ARE CORPORATION
bargain collectively with the Union as the exclusive
representative of the employees in the appropriate
unit, and that, by such refusal, Respondent has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) and () of the
Act.
IV. HE EFFECT( OF IHE UNFAIR I.ABOR PRA(II(1S
UPON (COMMER(CE
The activities of Respondent set forth in section
III, above, occurring in connection with its operations
described in section 1, above, have a close, intimate.
and substantial relationship to trade, traffic, and com-
merce among the several States and tend to lead to
labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. TE REMEI)Y
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the mean-
ing 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 ap-
propriate unit, and, if an understanding is reached,
embody such understanding in a signed agreement.
In order to insure that the employees in the appro-
priate unit will be accorded the services of their se-
lected bargaining agent for the period provided by
law, we shall construe the initial period of certifica-
tion as beginning on the date Respondent commences
to bargain in good faith with the Union as the recog-
nized bargaining representative in the appropriate
unit. See Mar-Jac Poultry Company, Inc., 136 NLRB
785 (1962); Commerce Company db/a Lamar Hotel,
140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th
Cir. 1964), cert. denied 379 U.S. 817: Burnett Con-
struction Company, 149 NLRB 1419, 1421 (1964),
enfd. 350 F.2d 57 (lOth Cir. 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. East Michigan Care Corporation, Marlin Man-
or Division, A Wholly Owned Subsidiary of Care
Corporation, is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Michigan Licensed Practical Nurses Association
is a labor organization within the meaning of Section
2(5) of the Act.
3. All full-time and regular part-time nurses em-
ployed by the Employer at its facility located at 434
West North Street, Jackson, Michigan, but excluding
nurses' aides, orderlies, dietary employees, house-
keeping employees, laundry employees, general main-
tenance employees, managerial employees, confiden-
tial employees, office clerical employees, activity
employees, casual employees, professional employees,
guards and supervisors as defined in the Act, and all
other employees constitute a unit appropriate for the
purposes of collective bargaining within the meaning
of Section 9(b) of the Act.
4. Since March 30. 1979, the above-named labor
organization has been and now is the certified and
exclusive representative of all employees in the afore-
said appropriate unit for the purpose of collective
bargaining within the meaning of Section 9(a) of the
Act.
5. By refusing on or about May 10, 1979, and at all
times thereafter, to bargain collectively with the
above-named labor organization as the exclusive bar-
gaining representative of all the employees of Re-
spondent in the appropriate unit, Respondent has en-
gaged 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, Respondent
has interfered with, restrained, and coerced, and is
interfering with, restraining, and coercing, employees
in the exercise of the rights guaranteed them in Sec-
tion 7 of the Act, and thereby has engaged 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 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 Rela-
tions Board hereby orders that the Respondent, East
Michigan Care Corporation, Marlin Manor Division,
A Wholly Owned Subsidiary of Care Corporation.
Jackson. Michigan, its officers, agents, successors, and
assigns, shall:
I. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and con-
ditions of employment with Michigan Licensed Prac-
tical Nurses Association as the exclusive bargaining
representative of its employees in the following ap-
propriate unit:
All full-time and regular part-time nurses em-
ployed by the Employer at its facility located at
434 West North Street, Jackson, Michigan, but
excluding nurses' aides, orderlies, dietary em-
ployees, housekeeping employees, laundry em-
461
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees, general maintenance employees, man-
agerial employees, confidential employees, office
clerical employees, activity employees, casual
employees, professional employees, 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 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 understand-
ing is reached, embody such understanding in a
signed agreement.
(b) Post at its Jackson, Michigan, facility copies of
the attached notice marked "Appendix."5 Copies of
said notice, on forms provided by the Regional Direc-
tor for Region 7, after being duly signed by Respon-
dent's representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said no-
tices are not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director for Region 7, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
s 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
NOTIC(E To EMPLOYEES
POSTED BY ORDER OF HtH
NATIONAL LABOR REI.ATIONS BOARD
An Agency of the United States Government
WF WILl NOTI refuse to bargain collectively
concerning rates of pay, wages, hours, and other
terms and conditions of employment with Michi-
gan Licensed Practical Nurses Association, 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 wl.l., upon request, bargain with the
above-named Union, as the exclusive representa-
tive of all employees in the bargaining unit de-
scribed below, with respect to rates of pay,
wages, hours, and other terms and conditions of
employment, and, if an understanding is
reached, embody such understanding in a signed
agreement. The bargaining unit is:
All full-time and regular part-time nurses em-
ployed by the Employer at its facility located
at 434 West North Street, Jackson, Michigan,
but excluding nurses' aides, orderlies, dietary
employees, housekeeping employees, laundry
employees, general maintenance employees,
managerial employees, confidential employ-
ees, office clerical employees, activity employ-
ees, casual employees, professional employees,
guards and supervisors as defined in the Act,
and all other employees.
EAST MICHIGAN CARE CORPORATION, MAR-
LIN MANOR DIVISION, A WHOI.I.LLY OWNED
SUBSIDIARY OF CARE CORPORATION
462