Golden Hours Convalescent Hospitals

National Labor Relations Board - Board Decisions

Nov 14, 1972

200 N.L.R.B. 279 (N.L.R.B. 1972)

GOLDEN HOURS CONVALESCENT HOSPITALS 279
Herb A. Cook and Joan D . Cook d/b/a Golden Hours
Convalescent Hospitals and Service and Hospital
Employees Union, Local 399, Service Employees
International Union, SEIU, AFL-CIO. Case
31-CA-3039
November 14, 1972
DECISION AND ORDER
By MEMBERS FANNING, JENKINS, AND
KENNEDY
Upon a charge filed on April 14, 1972, by Service
and Hospital Employees Union, Local 399, Service
Employees International Union, SEIU, AFL-CIO,
herein called the Union, and duly served on Herb A.
Cook and Joan D. Cook d/b/a Golden Hours
Convalescent Hospitals, herein called the Respon-
dent, the General Counsel of the National Labor
Relations Board, by the Regional Director for
Region 31, issued a complaint on May 17, 1972,
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 parties to this proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on March 14,
1972, following a Board election in Case 31-RC-746
the Union was duly certified as the exclusive
collective-bargaining representative of Respondent's
employees in the unit found appropriate; 2 and that,
commencing on or about March 17, 1972, and at all
times thereafter, Respondent has refused, and con-
tinues 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 24, 1972, Respondent filed its
answer to the complaint admitting in part, and
denying in part, the allegations in the complaint.
On July 6, 1972, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment. Subsequently, on July 20, 1972, 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
r The title of 'Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972
a Official notice is taken of the record in the representation proceeding,
Case 31-RC-746, as the term "record" is defined in Secs. 102.68 and
102.69(f) of the Board's Rules and Regulations, Series 8, as amended. See
be granted. Respondent thereafter filed a response 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
authority in this proceeding to a three-member panel.
Ruling on the Motion for Summary Judgment
In its answer to the complaint, in its response to the
Motion for Summary Judgment and in numerous
letters to the Regional Office and the Associate
Executive Secretary of the Board, Respondent takes
the position that it is not required to bargain with the
Union because the election which resulted in the
Union's certification was invalid. We do not agree.
The record in Case 31-RC-746 indicates that an
election was conducted on April 17, 1968, pursuant
to a Stipulation for Certification Upon Consent
Election. Challenges were determinative of that
election and both parties filed objections to conduct
affecting the results of the election. After the
Regional Director's report and a hearing on the
challenged ballots and objections, that election was
set aside by the Board and a second election was
directed.3
The second election was conducted on October 21,
1971. The tally of ballots showed that of approxi-
mately 100 eligible voters, 65 cast ballots, of which 64
were for, and none against, the Union and one ballot
was void. Thereafter, Respondent filed objections to
conduct affecting the results of the election. Despite
two requests from the Regional Director for evidence
to support its objections, Respondent failed to
submit any evidence. Notwithstanding Respondent's
failure to cooperate, the Regional Director investi-
gated the objections and issued a detail Report on
Objections to Second Election, in which he consid-
ered each of Respondent's 35 objections and recom-
mended that the objections be overruled in their
entirety and the Union certified.
Respondent, thereafter, filed timely exceptions to
the Report on Objections to Second Election. The
Board, on March 14, 1972, issued a Decision and
Certification of Representative in which it adopted
the Regional Director's findings and recommenda-
tions and certified the Union as the collective-
bargaining representative of Respondent's employees
in the unit stipulated and found to be appropriate.
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.
3 182 NLRB 796.
200 NLRB No. 3
280 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
litigated in a prior representation proceeding.4
All issues raised by the Respondent in this
proceeding were or could have 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.5 We shall, accordingly,
grant the Motion for Summary Judgment.
On the basis of the entire record, the Board makes
the following:
III. UNFAIR LABOR PRACTICES
A. The Representation Proceeding
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 employees of the Respondent including
dietary employees, maids, janitors, storekeepers,
maintenance employees, grounds keepers, order-
lies, nurses' aides, licensed vocational nurses, and
laboratory helpers employed by Respondent at
22617 South Vermont, Torrance, California;
excluding all professional employees, including
physicians and registered nurses and all office
clerical employees, guards, and supervisors as
defined in the Act.
2. The certification
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is a partnership which operates four
convalescent hospitals at three locations in Califor-
nia; two in Long Beach, one in Riverside, and one in
Torrance, California. Respondent's annual gross
revenues exceed $100,000. During the past year,
Respondent purchased goods valued in excess of
$2,000 from firms located in the State of California
which obtained said goods directly from points
located outside the State of California. During the
same period, Respondent purchased goods and
services valued in excess of $3,000 directly from
points outside the State of California.
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
Service and Hospital Employees Union, Local 399,
Service Employees International Union, SEIU,
AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
4 See Pittsburgh Plate G l a s s Co v. NLRB, 313 U S 146,162 (1941),
Rules and Regulations of the Board, Secs 102 67(f) and 102.69(c)
5 We find no ment in Respondent's contention that the service of
'process herein was defective since Respondent does not contend there was
lack of service but merely contests the location of service. As to
Respondent's request for representation by counsel from the Regional
On October 21, 1971, 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 31 designated the Union as their
representative for the purpose of collective bargain-
ing with the Respondent. The Union was certified as
the collective-bargaining representative of the em-
ployees in said unit on March 14, 1972, 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 March 16, 1972, 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 March 17, 1972, 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 March 17, 1972, 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-
Office, there is no authority to provide counsel for litigants before the
Board With respect to the Respondent' s commerce data and its status as an
employer engaged in commerce and in a business affecting commerce, those
questions were determined in the representation case where the Respondent
executed a Stipulation for Certification Upon Consent Election which
established its data and involvement in commerce
GOLDEN HOURS CONVALESCENT HOSPITALS 281
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; Commerce Company d/b/a 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. Herb A. Cook and Joan D. Cook d/b/a
Golden Hours Convalescent Hospitals is an employ-
er engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Service and Hospital Employees Union Local
399, Service Employees International Union, SEIU,
AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. All employees of the Respondent including
dietary employees, maids, janitors, storekeepers,
maintenance employees, grounds keepers, orderlies,
nurses' aides, licensed vocational nurses, and labora-
tory helpers employed by Respondent at 22617 South
Vermont, Torrance, California; excluding all profes-
sional employees, including physicians and registered
nurses and all 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.
4. Since March 14, 1972, 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 March 17, 1972, 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)(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
Relations Board hereby orders that Respondent,
Herb A. Cook and Joan D. Cook d/b/a Golden
Hours Convalescent Hospitals, its 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 Service and Hospital
Employees Union, Local 399, Service Employees
International Union, SEIU, AFL-CIO, as the exclu-
sive bargaining representative of its employees in the
following appropriate unit:
All employees of the Respondent including
dietary employees, maids, janitors, storekeepers,
maintenance employees, grounds keepers, order-
lies, nurses' aides, licensed vocational nurses, and
laboratory helpers employed by Respondent at
22617 South Vermont, Torrance, California;
excluding all professional employees, including
physicians and registered nurses and all office
clerical employees, guards, and supervisors as
defined in the Act.
282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(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 facility at Torrance, California,
copies of the attached notice marked "Appendix." 6
Copies of said notice, on forms provided by the
Regional Director for Region 31 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 31 in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
6 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."
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,
embody such understanding in a signed agree-
ment. The bargaining unit is:
All employees of the Respondent including
dietary employees, maids, janitors, store-
keepers, maintenance employees, grounds
keepers, orderlies, nurses' aides, licensed
vocational nurses, and laboratory helpers
employed by Respondent at 22617 South
Vermont, Torrance, California; excluding all
professional employees, including physicians
and registered nurses and all office clerical
employees, guards, and supervisors as de-
fined in the Act.
HERB A. COOK AND
JEAN D. COOK D/B/A
GOLDEN HOURS
CONVALESCENT
HOSPITALS
(Employer)
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 Service
and Hospital Employees Union, Local 399,
Service Employees International Union, SEIU,
Dated By
(Representative) (Title)
This is an official notice and 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, Federal Building, Room 12100, 11000
Wilshire Boulevard, Los Angeles, California 90024,
Telephone 213-824-7351.