Family Heritage Home--Beaver Dam Inc.

National Labor Relations Board - Board Decisions

Mar 29, 1972

195 N.L.R.B. 1100 (N.L.R.B. 1972)

1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Family Heritage Home-Beaver Dam Incorporated
and Local 150 , Service and Hospital Employees'
International Union , AFL-CIO. Case 30-CA-1733
March 29, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
Upon a charge filed on October 6, 1971, by Local
150, Service and Hospital Employees' International
Union, AFL-CIO, herein called the Union, and duly
served on Family Heritage Home-Beaver Dam Incor-
porated, herein called the Respondent, the General
Counsel of the National Labor Relations Board, by the
Regional Director for Region 30, issued a complaint on
November 30, 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 com-
plaint alleges in substance that on August 24, 1971,
following a Board election in Case 30-RC-1488, 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 September 7, 1971, and more particularly
on or about September 14, 1971, and at all time there-
after, 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
December 6, 1971, Respondent filed its answer to the
complaint admitting in part, and denying in part, the
allegations in the complaint.
On December 23, 1971, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. The Respondent filed a motion in
opposition. Subsequently, on January 4, 1971, the
Board issued an order transferring the proceeding to
the Board and a Notice To Show Cause why the Gen-
eral Counsel's Motion for Summary Judgment should
not be granted. Respondent thereafter filed a response
to Notice To Show Cause.
' Official notice is taken of the record in the representation proceeding,
Case 30-RC-1488, as the term "record" is defined in Secs. 102.68 and
102.69 (£) of the Board 's Rules and Regulations , Series 8, as amended. See
LTV Electrosystems, Inc., 166 NLRB 938, enfd. 388 F.2d 683 (C.A. 4,
1968); Golden Age Beverage Co., 167 NLRB 151; Intertype Co. v. Penello,
269 F.Supp. 573 (D.C. Va., 1967); Follett Corp., 164 NLRB 378, enfd. 397
F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA.
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
The record in Case 30-RC-1488 shows that pursu-
ant to the Regional Director 's Decision and Direction
of Election ,' an election was conducted in which of
approximately 43 eligible employees, 18 voted for, and
17 against, the Union, and the ballots of 3 voters, in-
cluding that of Jeanne Stern, were challenged. The Re-
gional Director investigated the challenges and on Au-
gust 24, 1971, issued his Supplemental Decision, Order,
and Certification of Representative ordering that the
challenges be sustained and the Union certified. The
Respondent filed with the Board a timely request for
review contending, in effect, that the Regional Direc-
tor's ruling that Stern was ineligible to vote, because
she was not working on the eligibility date was prejudi-
cial, erroneous, and supported by no record and that,
alternatively, a hearing should be directed on the fac-
tual issues. On September 13, 1971, the Board denied
the request as it raised no substantial issues warranting
review.
In its motion opposing summary judgment and in its
response to the Notice To Show Cause, the Respondent
contends that the Regional Director's ruling as to the
ballot of Stern was not based on a hearing, but on an
investigation pursuant to Section 102.69(c) of the
Board's Rules and Regulations and that during the
investigation the Respondent had no opportunity to
confront witnesses against it, to examine and cross-
examine them, and to present evidence to the contrary,
as it would have if a hearing were held. In effect, the
Respondent has raised the same contentions previously
considered and decided by the Board in the underlying
representation case.
It is well settled that in the absence of newly discov-
ered or previously unavailable evidence or special cir-
cumstances 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.'
' On July 1, 1971, the Board denied the Respondent 's request for review
from the Regional Director 's determination that a single nursing home unit
was appropriate as raising no substantial issues warranting review. This unit
issue is not raised herein.
' See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S . 146, 162 ( 1941);
Regulations of the Board , Secs . 102.67 (£) and 102 . 69(c). We find no merit
in the Respondent 's contention that the above rule against relitigation of
representation case issues in hearings under Section 8(a)(5) of the Act is
inapplicable to representation issues decided upon investigation rather than
195 NLRB No. 197
FAMILY HERITAGE HOME
All issues raised by the Respondent in this proceed-
ing were or could have been litigated in the prior repre-
sentation 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 prop-
erly litigable in this unfair labor practice proceeding.'
We shall, accordingly, grant the Motion for Summary
Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent , a Wisconsin corporation , is engaged in
the operation of a nursing home at Beaver Dam, Wis-
consin . During the last calendar year, a representative
period, Respondent received gross revenues in excess of
$100,-000 from the operation of said nursing home.
During the same period, Respondent purchased and
received goods and materials, in interstate commerce,
valued in excess of $3,000 from points located directly
outside the State of Wisconsin.
We find, on the basis of the foregoing, that Respond-
ent 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 effectu-
ate the policies of the Act to assert jurisdiction herein.
a hearing and that the Supreme Court decision in Pittsburgh Plate is inap-
posite herein. While it is true that the Supreme Court decision involved a
unit issue upon which a hearing had been held , we believe that the basic
principle against relitigation underlying that decision is equally applicable
to representation issues decided upon an investigation . In fact, the Board has
consistently so applied the rule against relitigation . See e.g Town and Coun-
try Manufacturing Co. of Texas, Inc., 184 NLRB No. 111; Samson Tug and
Barge Company, Inc., 194 NLRB No. 46; Schwartz Brothers, Inc. and
Discount Records, Inc., 194 NLRB No. 13, Suwannee Lumber Manufactur-
ing Co, Inc, 192 NLRB No. 35.
4 In its answer , the Respondent stated that it was without knowledge or
information sufficient to form a belief as to the truth of, and therefore denied,
the allegations of the complaint that on or about September 7, 1971, the
Union requested the Respondent to bargain collectively. To overcome this
denial, the General Counsel attached to his Motion for Summary Judgment
a letter dated September 7, 1971, which purports to be a demand by the
Union upon the Respondent for contract negotiations . Since the Respond-
ent in its response to the Notice To Show Cause neither alludes to, nor seeks
to controvert , the contents of the letter, the allegations of the complaint as
to the Union 's September 7 demand for bargaining stand admitted Adams
Concrete Products Company, 187, NLRB No. 19. We note further that the
Respondent had admitted the fact that since on or about September 14,
1971, it has refused to bargain with the Union.
II. THE LABOR ORGANIZATION INVOLVED
1101
Local 150, Service and Hospital Employees' Interna-
tional Union, ALF-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 the Respondent consti-
tute a unit appropriate for collective-bargaining pur-
poses within the meaning of Section 9(b) of the Act:
All employees of Respondent and its Beaver
Dam, Wisconsin, location, including licensed
practical nurses, maintenance employees , activity
director , and medical aides, excluding registered
nurses, professional employees, office clerical em-
ployees, confidential employees, guards and super-
visors as defined in the Act.
2. The certification
On July 15, 1971, a majority of the employees of
Respondent in said unit , in a secret ballot election con-
ducted under the supervision of the Regional Director
for Region 30, designated the Union as their represent-
ative 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 August 24, 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 September 7, 1971, and at
all times thereafter, the Union has requested the Re-
spondent 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 September 14, 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 representative for collective bar-
gaining of all employees in said unit.
Accordingly, we find that the Respondent has, since
September 14, 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, Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act.
FAMILY HERITAGE HOME
All issues raised by the Respondent in this proceed-
ing were or could have been litigated in the prior repre-
sentation 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 prop-
erly litigable in this unfair labor practice proceeding.'
We shall, accordingly, grant the Motion for Summary
Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, a Wisconsin corporation, is engaged in
the operation of a nursing home at Beaver Dam, Wis-
consin. During the last calendar year, a representative
period, Respondent received gross revenues in excess of
$100,000 from the operation of said nursing home.
During the same period, Respondent purchased and
received goods and materials, in interstate commerce,
valued in excess of $3,000 from points located directly
outside the State of Wisconsin.
We find, on the basis of the foregoing, that Respond-
ent 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 effectu-
ate the policies of the Act to assert jurisdiction herein.
a hearing and that the Supreme Court decision in Pittsburgh Plate is inap-
posite herein . While it is true that the Supreme Court decision involved a
unit issue upon which a hearing had been held, we believe that the basic
principle against relitigation underlying that decision is equally applicable
to representation issues decided upon an investigation . In fact, the Board has
consistently so applied the rule against relitigation . See e .g. Town and Coun-
try Manufacturing Co. of Texas, Inc., 184 NLRB No. 111; Samson Tug and
Barge Company, Inc., 194 NLRB No. 46; Schwartz Brothers, Inc and
Discount Records, Inc., 194 NLRB No. 13; Suwannee Lumber Manufactur-
ing Co., Inc., 192 NLRB No. 35.
' In its answer, the Respondent stated that it was without knowledge or
information sufficient to form a belief as to the truth of, and therefore denied,
the allegations of the complaint that on or about September 7, 1971, the
Union requested the Respondent to bargain collectively . To overcome this
denial , the General Counsel attached to his Motion for Summary Judgment
a letter dated September 7, 1971, which purports to be a demand by the
Union upon the Respondent for contract negotiations. Since the Respond-
ent in its response to the Notice To Show Cause neither alludes to, nor seeks
to controvert , the contents of the letter, the allegations of the complaint as
to the Union's September 7 demand for bargaining stand admitted. Adams
Concrete Products Company, 187 NLRB No. 19. We note further that the
Respondent had admitted the fact that since on or about September 14,
1971, it has refused to bargain with the Union.
II. THE LABOR ORGANIZATION INVOLVED
1101
Local 150, Service and Hospital Employees' Interna-
tional Union, ALF-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 the Respondent consti-
tute a unit appropriate for collective-bargaining pur-
poses within the meaning of Section 9(b) of the Act:
All employees of Respondent and its Beaver
Dam, Wisconsin, location, including licensed
practical nurses, maintenance employees, activity
director, and medical aides, excluding registered
nurses, professional employees, office clerical em-
ployees, confidential employees, guards and super-
visors as defined in the Act.
2. The certification
On July 15, 1971, a majority of the employees of
Respondent in said unit, in a secret ballot election con-
ducted under the supervision of the Regional Director
for Region 30, designated the Union as their represent-
ative 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 August 24, 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 September 7, 1971, and at
all times thereafter, the Union has requested the Re-
spondent 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 September 14, 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 representative for collective bar-
gaining of all employees in said unit.
Accordingly, we find that the Respondent has, since
September 14, 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, Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act.
FAMILY HERITAGE HOME 1103
(b) Post at its Beaver Dam, Wisconsin , location co-
pies of the attached notice marked "Appendix."5 Co-
pies of said notice , on forms provided by the Regional
Director for Region 30, after being duly signed by Re-
spondent 's representative , shall be posted by Respond-
ent immediately upon receipt thereof, and be main-
tained 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 Respondent to insure that said notices
are not altered , defaced , or covered by any other
material.
(c) Notify the Regional Director for Region 30, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
CHAIRMAN MILLER , dissenting:
Upon motion for summary judgment in this type of
proceeding , it is incumbent upon us to review the
record to be completely sure that a respondent 's rights
have not been prejudiced and that there are no issues
upon which a hearing is required. In reviewing this
record, I am of the view that we improvidently denied
Respondent's request for a hearing in the underlying
representation case on the issue of the eligibility of
Jeanne Stern to vote . It would appear that there were
factual issues as to what the "payroll period" of the
employee was and, further, as to whether Mrs. Stem
was in fact employed during the particular "payroll
period" which had been designated as the measuring
period for voter eligibility. Because we accepted the
Regional Director's resolution of that issue even
though there was a dispute as to the facts, I believe
Respondent ' is now entitled, before we issue our final
bargaining order , to a hearing on that question, and I
would so order.
terms and conditions of employment with Local
150, Service and Hospital Employees ' Interna-
tional Union , AFL-CIO, as the exclusive repre-
sentative 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 Sec-
tion 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 de-
scribed below, with respect to rates of pay, wages,
hours , and other terms and conditions of employ-
meat , and, if an understanding is reached , embody
such understanding in a signed agreement. The
bargaining unit is:
All employees of Respondent at its Beaver
Dam, Wisconsin , location , including licensed
practical nurses,, maintenance employees, ac-
tivity director, and medical aides, excluding
registered nurses, professional employees,
office clerical employees, confidential em-
ployees, guards and supervisors as defined in
the Act.
FAMILY HERITAGE
HOME-BEAVER
DAM
INCORPORATED
(Employer)
Dated By
(Representative) (Title)
' 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 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
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 days from the
date of posting and must not be altered, defaced, or
covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, Commerce Building Second Floor, 744 North
Fourth Street, Milwaukee, Wisconsin 53203, Tele-
phone 414-224-3861.
WE WILL NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and other