Highland Terrace Convalescent Center

National Labor Relations Board - Board Decisions

Oct 20, 1977

233 N.L.R.B. 87 (N.L.R.B. 1977)

HIGHLAND TERRACE CONVALESCENT CENTER
Highland Terrace Convalescent Center, A Wholly
Owned Subsidiary of Centennial Villas, Inc. and
Service Employees International Union, Local No.
92, AFL-CIO. Case 36-CA-3063
October 20, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
Upon a charge filed on February 17, 1977, by
Service Employees International Union, Local No.
92, AFL-CIO, herein called the Union, and duly
served on Highland Terrace Convalescent Center, A
Wholly Owned Subidiary of Centennial Villas, Inc.,
herein called the Respondent, the General Counsel
of the National Labor Relations Board, by the
Regional Director for Region 19, issued a complaint
on April 1, 1977, 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 November 23,
1976, following a Board election in Case 36-RC-
3754, 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 February 1, 1977, and at all
times thereafter, and particularly on March 7, 1977,
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
April 4, 1977, Respondent filed its answer to the
complaint admitting in part, and denying in part, the
allegations in the complaint.
On April 25, 1977, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment.
On May 9, 1977, Respondent filed an amended
answer, with affirmative defenses, continuing to
admit in part and deny in part the allegations of the
complaint. Subsequently, on May 25, 1977, the
Board issued an order transferring the proceeding to
the Board and a Notice To Show Cause why the
'Official notice is taken of the record in the representation proceeding.
Case 36-RC-3754, 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 (C.A. 4,
233 NLRB No. 20
General Counsel's Motion for Summary Judgment
should not be granted. Respondent thereafter filed a
brief in opposition to the General Counsel's 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 its opposition to
General Counsel's Motion for Summary Judgment
Respondent admits the refusal to bargain but
contends that the certification of the Union in the
underlying representation case is invalid since the
Regional Director erroneously included certain
supervisors, namely, charge nurses, in the unit.
Furthermore, although Respondent concedes that its
representative signed a waiver of the right to request
review of the Regional Director's determination in
Case 36-RC-37554, it contends the waiver was
invalid since the form has never been filled out and
the representative, a nonlawyer, did not understand
the waiver due to the Hearing Officer's failure to
adequately inform him of its ramifications. Respon-
dent also contends that a new hearing is required to
demonstrate the prejudice Respondent suffered as a
result of the Regional Director's failure to serve a
copy of his Decision and Direction of Election on
Respondent's attorney prior to the election. Finally,
Respondent contends that, even in the event the
Board agrees with the original Decision, there has
been a change since the issuance of that Decision in
the supervisory authority of charge nurses requiring
that the Board grant a new hearing on the matter.
Based on this change in circumstances, Respondent
filed on June 10, 1977, a petition for clarification of
certification asking the Board to clarify the present
status of the charge nurses in the unit. Respondent
maintains that this UC petition should be consolidat-
ed with the present refusal-to-bargain matter.
Our review of the record herein, including the
record in Case 36-RC-3754, reveals that, at the
conclusion of the hearing the parties signed a waiver
of their right to present review of the Regional
Director's decision. Thereafter, the Regional Direc-
tor issued a Decision and Direction of Election in
which, inter alia, he found charge nurses, which
Respondent contended were supervisors, to be
employees included in the unit and directed that an
1968): Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26
(C.A. 5, 1%9); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va., 1967);
Follet Corp.. 164 NLRB 378 (1967), enfd. 397 F.2d (CA. 7, 1%968); Sec. 9(d)
of the NLRA, as amended.
87
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
election be conducted. An election was held on
November 15, 1976, which resulted in an 8-to-0 vote
in favor of the Union with no challenged ballots. No
objections to the election were filed and, on
November 23, 1976, the Union was certified as the
exclusive representative of the employees.
On December 6, 1976, Respondent requested the
Regional Director to rescind the Certification of
Representative and to reconsider the Decision and
Direction of Election for the following reasons: (1)
the unit description in the Certification of Represen-
tative is ambiguous in that it excludes supervisors but
includes charge nurses who are supervisors; (2)
Respondent was denied the opportunity to request
reconsideration of the Regional Director's decision
within the prescribed time due to the Regional
Director's failure to serve a copy of his decision on
Respondent's attorney and, therefore, Respondent
was denied an opportunity to seek reconsideration;
(3) the Regional Director did not fully consider
Respondent's October 26, 1976, brief before issuance
of his October 29, 1976, decision; (4) although the
Regional Director refers to a brief filed by Petitioner
no such brief was served on Respondent; and (5) the
Hearing Officer failed to adequately explain to
Respondent's representative the ramifications of its
waiver of the right of appeal. The Regional Director
denied the request by letter dated December 17,
1976.2 By letter dated March 17, 1977, Respondent
requested review of the matter.
The Board, by order of March 30, 1977, denied the
Respondent's request for review on the ground that
the Employer waived the right to file a request for
review with the Board and did not seek to withdraw
its waiver prior to the Regional Director's decision.
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
With the exception of Respondent's contention
that we should consolidate this proceeding with the
proceeding involving its UC petition, 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
2 Specifically, the Regional Director stated, inter alia, that he gave
further consideration to his oriinal decision and he adhered to it. He
declared that Respondent's October 26, 1976, brief was fully considered. He
also enclosed a copy of Petitioner's brief, noting that there is no provision
for reply briefs. Lastly, he cited in detail the portions of the transcript
indicating Respondent's representative had been given a full explanation of
the effect of the waiver he signed.
3 See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c).
that any special circumstances exist herein which
would require the Board to reexamine the decision
made in the representation proceeding. As to
Respondent's contention with respect to the UC
petition, the complaint alleges that Respondent
violated Section 8(a)(5) by refusing to bargain as of
February 1, 1977. The unit clarification petition is
based on an alleged change in the duties of charge
nurses since the date of the certification and
apparently, at least partially, since the date of the
alleged refusal to bargain. By this tactic it appears
that Respondent is seeking to relitigate the same
issues which we litigated in the earlier proceeding. In
effect Respondent is arguing that it has made such
drastic changes in the duties of unit employees since
the certification that it has eliminated the unit, all
without bargaining. This assertion, if true, would
simply constitute additional evidence of Respon-
dent's refusal to bargain with the Union since it
would be making unilateral changes without bargain-
ing.4 We therefore find that Respondent has not
raised any issue which is properly litigable in this
unfair labor practice proceeding.5 We shall, accord-
ingly, grant the Motion for Summary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent is, and has been at all times material
herein, a State of Washington corporation with an
office and place of business located at Camas,
Washington. It is engaged in the operation of a
proprietary nursing home facility. Respondent, dur-
ing the past 12 months, which period is representa-
tive of all times material herein, received gross
revenue in excess of $100,000. Respondent, through
its subsidiaries, during the past 12 months, which
period is representative of all times material herein,
in the course and conduct of its business operations,
purchased and caused to be transferred and deliv-
ered to its Camas facility, goods and materials valued
in excess of $5,000 which were transported to said
facility from States other than the State of Washing-
ton.
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
4 Kendall College, 228 NLRB 1083 (1977).
! In its answer to the complaint, Respondent denies knowledge sufficient
to form a belief that the Union is a labor organization within the meaning of
the Act, which under Sec. 102.20 of the Board's Rulies and Regulations
operates as a denial. This issue was or could have been litigated in the
underlying representation case and may not be relitigated here. Teledyne,
Landis Machine, 212 NLRB 73, 74, fn. 4(1974).
88
HIGHLAND TERRACE CONVALESCENT CENTER
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 Employees International Union, Local No.
92, AFL-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
constitute a unit appropriate for collective-bargain-
ing purposes within the meaning of Section 9(b) of
the Act:
All registered nurses employed by the Employ-
er at its facility located at 640 N.E. Everett,
Camas, Washington, but excluding all other
professional employees, office clerical employees,
guards and supervisors as defined in the Act, and
all other employees.
2. The certification
On November 15, 1976, 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 19, 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
November 23, 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 January 19, 1977, 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 February 1, 1977, and continu-
ing 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 February 1, 1977, 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 1, 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 com-
mences to bargain in good faith with the Union as
the recognized bargaining representative in the
appropriate 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. Highland Terrace Convalescent Center, A
Wholly Owned Subsidiary of Centennial Villas, Inc.,
is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Service Employees International Union, Local
No. 92, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All registered nurses employed by the Employ-
er at its facility located at 640 N.E. Everett, Camas,
Washington, but excluding all other professional
employees, office clerical employees, guards and
89
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 November 23, 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 February 1, 1977, 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)( ) 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 the Respondent,
Highland Terrace Convalescent Center, A Wholly
Owned Subsidiary of Centennial Villas, Inc., Camas,
Washington, 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 Service Employees
International Union, Local No. 92, AFL-CIO, as the
exclusive bargaining representative of its employees
in the following appropriate unit:
All registered nurses employed by Employer at
its facility located at 640 N.E. Everett, Camas,
Washington, but excluding all other professional
employees, office clerical 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:
(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 Camas, Washington, facility, copies
of the attached notice marked "Appendix." 6 Copies
of said notice, on forms provided by the Regional
Director for Region 19, 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 19, 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."
APPENDIX
NOTICE TO MEMBERS
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
Employees International Union, Local No. 92, 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:
90
HIGHLAND TERRACE CONVALESCENT CENTER
All registered nurses employed by the
Employer at its facility located at 640 N.E.
Everett, Camas, Washington, but excluding
all other professional employees, office
clerical employees, guards and supervisors,
as defined in the Act.
HIGHLAND TERRACE
CONVALESCENT CENTER,
A WHOLLY OWNED
SUBSIDIARY OF
CENTENNIAL VILLAS, INC.
91