Heritage Nursing Center, Inc.

National Labor Relations Board - Board Decisions

Dec 12, 1973

207 N.L.R.B. 826 (N.L.R.B. 1973)

826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Heritage Nursing Center , Inc. and Local 222 United
Nursing Home and Hospital Employees' Federa-
tion . Case 30-CA-2345
December 12, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
Upon a charge filed on May 14, 1973, by Local
222, United Nursing Home and Hospital Employees'
Federation, herein called the Union, and duly served
on Heritage Nursing Center, Inc., herein called the
Respondent, the General Counsel of the National
Labor Relations Board, by the Regional Director for
Region 30, issued a complaint on June 18, 1973,
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 April 13, 1973,
following a Board election in Case 30-RC-1878 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 18, 1973, 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 June 26 and July 30, 1973, respectively, Respon-
dent filed its answer and an amended answer to the
complaint admitting in part, and denying in part, the
allegations in the complaint.
On August 3, 1973, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on August 14,
1973, 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-
dent thereafter filed a response to Notice To Show
Cause, entitled Affidavit in Opposition to Motion for
Summary Judgment.
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, 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, the Respondent attacks the
validity of the Union's certification because of the
alleged erroneous determinations of the legal issues
involving its objections and exceptions in representa-
tion Case 30-RC-1878 and because of newly
discovered evidence which allegedly constitutes
special circumstances warranting relitigation of
representation case issues.
Our review of the record herein reflects that an
election was conducted on November 10, 1972,
pursuant to a Stipulation for Certification Upon
Consent Election, among the employees in the
stipulated unit. The tally of ballots furnished the
parties showed that of approximately 79 eligible
voters, 34 voted for, and 30 against, the Union and 3
ballots were challenged.2 Thereafter, the Respondent
filed timely objections to conduct affecting the
results of the election which alleged, in substance,
that (1) an alleged erroneous interpretation by the
Board agent as to employees eligible to vote resulted
in the wrongful exclusion from voting of employee
Shill who would have voted against the Union; and
(2) unknown to the Respondent, the stipulation
setting the time of the election prevented certain
employees from voting in the election. After investi-
gation, the Regional Director on December 29, 1972,
issued his Report and Recommendation on Objec-
tions in which he found that the Respondent's
objections did not raise substantial or material issues
with respect to conduct of the election and in which
he recommended that the objections be overruled in
their entirety and the Union certified.
Thereafter, the Respondent filed timely exceptions
to the Regional Director's report, specifically arguing
again the merits of its Objection 1. On April 23, 1973,
the Board issued its Decision and Certification of
Representative finding that the exceptions raised no
material or substantial issues of fact or law warrant-
ing the reversal of the Regional Director's findings
and recommendations, which the Board adopted. In
so finding, the Board noted that, as to Objection 1,
the Respondent was largely responsible for Shill's not
appearing at the polls to vote in the election; and, as
1 Official notice is taken of the record in the representation proceeding, Intertype Co. v. Penello, 269 F.Supp. 573 (D.C. Va., 1967); Follett Corp., 164
Case 30-RC-1878, as the term "record" is defined in Secs. 102.68 and NLRB 378, enfd. 397 F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA.
102.69(f) of the Board 's Rules and Regulations, Series 8, as amended . See 2 These challenges were withdrawn on December 22, 1972, and the
LTV Electrosystens, Inc., 166 NLRB 938, enfd. 388 F.2d 683 (C.A. 4, 1968); ballots opened and counted . The revised tally showed the vote to be 34 to 33
Golden Age Beverage Co., 167 NLRB 151, enfd. 415 F.2d 26 (C.A. 5, 1969); in favor of the Union.
207 NLRB No. 118
HERITAGE NURSING CENTER, INC. 827
to Objection 2, it adopted pro forma the Regional
Director's recommendation to overrule the objection
in the absence of further exceptions. Accordingly, it
certified the Union. To the extent that the Respon-
dent is seeking relitigation of issues raised by its
objections and exceptions and adversely determined
in the representation case, it may not do so.
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.3
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.
As indicated above, however, the Respondent
contends it is entitled to relitigate representation case
issues because of newly discovered evidence which
constitutes special circumstances . In substance, this
evidence relates to (1) the voting eligibility of an
employee who terminated his employment with the
Respondent immediately after voting in the election
but who had accepted other employment prior to the
election of November 10, 1972-a fact not discov-
ered by the Respondent until sometime in April or
May of 1973; (2) the Union's alleged serious
misrepresentations relative to the existence of con-
tracts with other employees when it actually had no
such contracts, as the Respondent was able to
ascertain in April or May of 1973 after a lengthy
investigation; and (3) the Union's allegedly false
statements in response to the Respondent's informa-
tion as to its precarious financial condition-state-
ments which the Respondent became aware of only
several months after January 1973, when it filed its
exceptions to the Regional Director's report. We find
no merit in the Respondent's contention. First, we
are of the opinion that the Respondent has failed to
show that, with due diligence, it could not have
uncovered the alleged evidence within a reasonably
short period of time after the November 10, 1972,
election rather than over 4 months later., Further-
more , Respondent does not explain why it could not
have disclosed the evidence to the Board at the time
of discovery rather than waiting until it had filed the
3 See Pittsburgh Plate Glass Co v. N.L.RB., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Sees. 102.67(f) and 102.69(c).
answer to the complaint on June 6, 1973, nearly 7
months after the election. In these circumstances, we
find that the alleged evidence should not be
considered newly discovered or previously unavaila-
ble evidence and does not constitute special circum-
stances warranting the relitigation of such issues in
the representation case . Further, we note that the
alleged evidence does not relate to the objections and
exceptions previously filed by the Respondent, but
relates to issues which could have been raised and
litigated in the representation case. }Therefore,
objections to conduct of the election based upon
such evidence would be considered new objections
and would be subject to Section 102.69 of our Rules
and Regulations which provides that objections must
be filed within 5 days after the tally of ballots has
been furnished -to the parties. In the instant case, the
alleged newly discovered evidence was not filed with
or disclosed to the Board until after the Respondent
had filed its answer to the complaint herein on June
6, 1973, long after November 17, 1972, the last day
for filing objections herein. In these circumstances,
and in view of the Board's determination that to
achieve certainty in procedural matters it is essential
that the parties be held to a strict adherence to the
Board's Rules and Regulations, any objection based
on the alleged evidence would not be considered
timely filed and therefore would be overruled.
Finally, with respect to the voting eligibility of an
employee who terminated his employment with the
Respondent after voting because, prior to the
election, he had secured other employment else-
where, the alleged evidence would not support a
meritorious objection or challenge to that employee's
vote in the election.4 We shall, accordingly, grant the
General Counsel's 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 wholly owned subsidiary of Herit-
age Nursing Homes, Inc., a Wisconsin corporation, is
engaged in providing nursing home care at its
Sheboygan, Wisconsin, facility., During the past
calendar year, a representative period, Respondent
derived gross revenues in excess of $500,000 for
services provided at its Sheboygan, Wisconsin,
facility. During the same period, Respondent re-
ceived materials and supplies valued in excess of
$5,000 from points located outside the State of
Wisconsin.
4 See Personal Products Corporation, 114 NLRB 959, 961.
828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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.
H. THE LABOR ORGANIZATION INVOLVED
Local 222, United Nursing Home and Hospital
Employees' Federation , 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
constitute a unit appropriate for collective-bargain-
ing purposes within the meaning of Section 9(b) of
the Act:
All employees of the Respondent at its Sheboy-
gan, Wisconsin, location, excluding registered
nurses, licensed practical nurses, professional
employees, office clerical employees, confidential
employees, guards and supervisors as defined in
the Act.
2. The certification
On November 10, 1972, 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 30, 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
13, 1973, 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 18, 1973, 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 April 18, 1973, 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 18, 1973, 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; Commerce Company d/b/a Lamar Hotel,
140 NLRB 226, 229, enfd. 328 F.2d 600 (C.A. 5,
1964), cert. denied 379 U.S. 817 (1964); Burnett
Construction Company, 149 NLRB 1419, 1421, 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. Heritage Nursing Center, Inc., is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Local 222, United Nursing and Hospital
Employees' Federation, is a labor organization
within the meaning of Section 2(5) of the Act.
3. All employees of the Respondent at its Sheboy-
gan, Wisconsin, location, excluding registered nurses,
HERITAGE NURSING CENTER, INC.
licensed practical nurses, professional employees,
office clerical employees , confidential 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 April 13, 1973, 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 18, 1973, 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,
Heritage Nursing Center, Inc., Sheboygan, Wiscon-
sin, its officers, 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 Local 222, United
Nursing Home and Hospital Employees' Federation,
as the exclusive bargaining representative of its
employees in the following appropriate unit:
All employees of the Respondent at its Sheboy-
gan, Wisconsin, location, excluding registered
nurses, licensed practical nurses, professional
employees, office clerical employees, confidential
employees, guards and supervisors as defined in
the Act.
(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:
829
(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 Sheboygan, Wisconsin, facility copies
of the attached notice marked "Appendix." 5 Copies
of said notice, on forms provided by the Regional
Director for Region 30, 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 thereaf-
ter, in conspicuous 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 Regional Director for Region 30, 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
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 Local
222, United Nursing Home and Hospital Em-
ployees' Federation, as the exclusive representa-
tive 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 at its
Sheboygan, Wisconsin, location excluding
registered nurses, licensed practical nurses,
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
professional employees, office clerical em- This is an official notice and must not be defaced
ployees, confidential employees , guards and by anyone.
supervisors as defined in the Act . This notice must remain posted for 60 consecutive
days from the date of posting and must not be
HERITAGE NURSING altered, defaced, or covered by any other material.
CENTER, INC; Any questions concerning this notice or compli-
(Employer) ance with its provisions may be directed to the
Board's Office,' Commerce Building, Second Floor,
Dated By 744 North 4th Street, Milwaukee, Wisconsin 53203,
(Representative) (Title) Telephone 414-224-3861.