Highview, Incorporated

National Labor Relations Board - Board Decisions

Jun 18, 1979

242 N.L.R.B. 1247 (N.L.R.B. 1979)

HIGIVItEW, IN(CORPORATED)
Highview, Incorporated and American Federation of
State, County, and Municipal Employees. AFL-
CIO. Case 10 CA 14012
June 18, 1979
DECISION AND ORDER
By CHAIRMAN FANNING ANi) M MBERS JENKINS
ANt) MURPIIY
Upon a charge filed on September 21. 1978. by
American Federation of State, County, and Munici-
pal Employees. AFL-CIO, herein called the Union.
and duly served on Highview, Incorporated, herein
called Respondent, the General Counsel of the Na-
tional Labor Relations Board, by the Regional Direc-
tor for Region 10. issued a complaint and notice of
hearing on October 6, 1978, against Respondent, al-
leging that Respondent had engaged in and was en-
gaging 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 proceed-
ing.
With respect to the unfair labor practices, the com-
plaint alleges in substance that on June 23. 1978. fol-
lowing a Board election in Case 10-RC 10256. 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 11. 1978, 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.
Respondent filed its answer and an amended an-
swer to the complaint on October 16. 1978. and De-
cember 12, 1978, respectively, admitting in part. and
denying in part, the allegations in the complaint.
On December 15, 1978, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently. on December 26,
1978, the Board issued an order transferring the pro-
ceeding to the Board and a Notice To Show Cause
why the General Counsel's Motion for Summary
I Official notice is laken of the record in the repreenlation proceeding.
Case IO R 10256. as the term "record" is defined in Sees 10)28 nd
102.6 9(g) of the Board's Rules and Regulations. Series 8. :s amendeid See
1.71 Eleirovtrnms. In, Ih6 NLRB 938l19671. entd 388 1 2d 683 4th (lr
1968) Golden .4ge Becerage (Co. 167 NLRB 151 (1967). enti 415 F 2 26
(5th (ir. 1969); Intert-pe (io . Pencl., 269 f Supp 573 I)( .a 19(7>)
Follett Corp. 164 NlRB 378 1967), entd. 397 F 2d 91 (7th (ir 1968): and
Sec. 9(d of the NLRA. as amended
Judgment should not be granted. Respondent there-
after filed a response to the Notice To Show ('Cause.
Pursuant to the provisions oft 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 ftllowing:
Ruling on the Motion (fr Summary Judgment
In its amended answer to the complaint. Respon-
dent admits the flctual allegations made in the Gen-
eral Counsel's Motion tor Sumniar Judgment but
denies that it is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act
and that its conduct is violative of Sectionl 8(a)( I ) and
(5).
In the Motion for Summary Judgment. counsel for
the General Counsel contends that all issues raised b\
Respondent were previously litigated and decided bs
the Board in the prior proceeding ( Hightiew, Incorpo-
ralefd, 223 NLRB 646 (1976)), that the pleadings raise
no factual issues litigable in this proceeding. and that
summary judgment is proper. We agree.
Review of the record, including that in the underl -
ing representation proceeding. Case 10 R('C 10256.
shows that on April 3. 1975. the Regional Director for
Region 10 issued a Decision and Order in )which he
declined to assert jurisdiction over the Employer's op-
erations and dismissed the petition. concluding that
the nursing home services by Respondent were so in-
timiately connected with the municipal functions of
the local government that Respondent should share
the latter's statutor. exemption froml the Board's ju-
risdiction. On May 20. 1975. the Board granted the
Petitioner's request for revieu.
Subsequently. on April 6. 1976, the Board reversed
the Regional Director and issued a Decision on Re-
view and Direction of Election. finding.2 iner lia.
that in all significant aspects Respondent is opera-
tionall independent from, and subject to no actual
control b., the local government: that its activities
are not intimately connected with those of an exempt
governmental entity: and that, since it otherwise met
the Board's jurisdictional standards, it would effectu-
ate the purposes of the Act to assert jurisdiction.
An election was conducted oin May 6 1976. The
Petitioner failed to receive a mnajority of the valid
votes cast bhut filed timely objections which were co-
extensive with the allegations of the complaint issued
in (Cases 10 CA 11941 and 10-('A 11174.' Due to
Respondent's pervasive unfiair labor practices and
2Ililmhltcv I, ;s7irdl, .1. r,Ii
lhese .uses ere c.wshdatd for heariing. .along .lth ( asc Ii R(
10256 h Order dted &lguSi 13. 1976
242 NLRB No. 175
1247
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
otherwise objectionable conduct, the election was set
aside.4
The Union won the second election, conducted on
May 24, 1978. On June 1, 1978, Respondent filed
timely objections to the conduct of the election. The
Regional Director, on June 23, 1978, issued a Supple-
mental Decision and Certification overruling Respon-
dent's objections and certifying the Union as the ex-
clusive representative of Respondent's employees in
the appropriate unit. The Board denied Respondent's
request for review of the Regional Director's decision
on August 15, 1978. Under the provisions of Section
102.67(f) of the Board's Rules and Regulations, Se-
ries 8, as amended, denial of a request for review con-
stitutes an affirmance of the Regional Director's ac-
tion and also precludes relitigating any such issues in
any related unfair labor practice proceeding.
It is well settled that in the absence of newly 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 reliti-
gate issues which were or could have been litigated in
a prior representation proceeding.5
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 Motion for Summary
Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
The complaint alleges, and Respondent's answer
admits, that Respondent is a private nonprofit Geor-
gia corporation, with an office and place of business
4231 NLRB 1251, enfd. in part and remanded in part 590 F.2d 174 (5th
Cir. 1979). There Respondent contended that, since the Fulton County Com-
missioners had passed a resolution indicating an intent to take over opera-
tion of the nursing home, the Board's assertion of jurisdiction was inappro-
priate. Although the court found that, prior to the resolution. Respondent
was not a political subdivision and therefore did not share the county's statu-
tory exemption, it remanded the case to the Board to determine whether the
county had in fact assumed operation of the home. Noting that the county
had later rescinded its resolution expressing an intent to take over operation
of the home, the court enforced the Board's order in its entirety. 590 F.2d
174 vacated and enforcement granted May 2. 1979.
See Pitsburgh Plate Glass o. V..L.R.B., 313 U.S. 146. 162 (1941). and
Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c).
located in Fulton County, Georgia, where it is en-
gaged in the operation of a nursing home. Respon-
dent, during the past calendar year. received gross
revenue in excess of $100,000 for services rendered
and purchased and received goods valued in excess of
$50,000 directly from suppliers located outside the
State of Georgia.
We find, on the basis of the fregoing 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.
II. TilE LABOR ORiANIZATION INVOI.VFI )
American Federation of State, County. and Mu-
nicipal Employees, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
Ill. THE UNFAIR LABOR PRAC(TIC(ES
A. The Representlation Proceeding
1. 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 service and
maintenance employees, including nurses aides.
orderlies, dietary department employees, house-
keeping employees, licensed engineers, and other
engineering department employees: excluding all
registered nurses, licensed practical nurses, office
clerical employees, technical and professional
employees, guards, and supervisors as defined in
the Act.
2. The certification
On May 24. 1978, a majority of the employees of
Respondent in said unit, in a secret-ballot election
conducted under the supervision of the Regional Di-
rector for Region 10, designated the Union as their
representative for the purpose of collective bargaining
with Respondent. The Union was certified as the col-
lective-bargaining representative of the employees in
said unit on June 23, 1978, 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 Re/isal
Commencing on or about August 22, 1978, and at
all times thereafter, the Union has requested Respon-
dent to bargain collectively with it as the exclusive
1248
HIGHViEW, INCORPORATED
collective-bargaining representative of all the employ-
ees in the above-described unit. Commencing on or
about September 11, 1978, and continuing at all times
thereafter to date, Respondent has refused, and con-
tinues to refuse, 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
September 11, 1978, and at all times thereafter, re-
fused to bargain collectively with the Union as the
exclusive representative of the employees in the ap-
propriate unit and that, by such refusal, Respondent
has engaged in and is engaging in unfair labor prac-
tices 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 operations
described in section I, 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. THE REMEDY
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 d/b/a Lamar Hotel,
140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th
Cir. 1964), cert. denied 379 U.S. 817 (1964); and Bur-
nett Construction Company, 149 NLRB 1419, 1421
(1964), enfd. 350 F.2d 57 (10th Cir. 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Highview, Incorporated, is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. American Federation of State, County, and Mu-
nicipal Employees, AFL-CIO. is a labor organization
within the meaning of Section 2(5) of the Act.
3. All full-time and regular part-time service and
maintenance employees, including nurses aides, or-
derlies, dietary department employees, housekeeping
employees, licensed engineers, and other engineering
department employees and excluding all registered
nurses, licensed practical nurses, office clerical em-
ployees, technical and professional employees,
guards, and supervisors as defined in the Act, consti-
tute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the
Act.
4. Since June 23, 1978, the above-named labor or-
ganization has been and now is the certified and ex-
clusive 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 September 11, 1978,
and at all times thereafter, to bargain collectively
with the above-named labor organization as the ex-
clusive bargaining representative of all the employees
of Respondent in the appropriate unit, Respondent
has engaged in and is engaging in unfair labor prac-
tices 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 Respondent, High-
view, Incorporated, Atlanta, Georgia, 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 con-
ditions of employment with American Federation of
State, County, and Municipal Employees, AFL-CIO.
as the exclusive bargaining representative of its em-
ployees in the following appropriate unit:
All full-time and regular part-time service and
maintenance employees, including nurses aides,
orderlies, dietary department employees, house-
keeping employees, licensed engineers, and other
1249
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
engineering department employees; excluding all
registered nurses, licensed practical nurses. office
clerical employees, technical and professional
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 understand-
ing is reached, embody such understanding in a
signed agreement.
(b) Post at its place of business at 2800 Springdale
Road, SW., Atlanta, Georgia, copies of the attached
notice marked "Appendix." 6 Copies of said notice, on
forms provided by the Regional Director for Region
10, after being duly signed by Respondent's repre-
sentative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are cus-
tomarily 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 10, 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 Uinited States
Court of Appeals, the words in the notice reading "Posted by order of the
National abor 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 WVILl NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and other
terms and conditions of employment with
American Federation of State, County, and Mu-
nicipal Employees, 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 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 agree-
ment. The bargaining unit is:
All full-time and regular part-time service and
maintenance employees, including nurses
aides, orderlies, dietary department employ-
ees, housekeeping employees, licensed engi-
neers, and other engineering department em-
ployees: excluding all registered nurses,
licensed practical nurses, office clerical em-
ployees, technical and professional employees,
guards, and supervisors as defined in the Act.
HIGHVIEW, INCORPORATED
1250