Hy-Load Convalescent Hospital

National Labor Relations Board - Board Decisions

Sep 28, 1977

232 N.L.R.B. 450 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hy-Lond Enterprises, Inc. d/b/a Hy-Lond Convales-
cent Hospital and Hospital and Institutional
Workers Union, Local 250, AFL-CIO. Case 20-
CA-12964
September 28, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
Upon a charge filed on June 7, 1977, by Hospital
and Institutional Workers Union, Local 250, AFL-
CIO, herein called the Union, and duly served on
Hy-Lond Enterprises, Inc., d/b/a Hy-Lond Conva-
lescent Hospital, herein called Respondent, the
General Counsel of the National Labor Relations
Board, by the Regional Director for Region 20,
issued a complaint on June 24, 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 March 1,
1977, following a Board election in Case 20-RC-
13662, the Union was duly certified as the exclusive
collective-bargaining representative of Respondent's
employees in the unit found appropriate; 1 and that,
commencing on or about March 23, 1977, and at all
times thereafter, Respondent, contrary to the
Union's request, has refused, and continues to date
to refuse, to bargain collectively with the Union as
the exclusive bargaining representative and to pro-
vide it with information relating to the wages, hours,
and terms of employment of the employees in the
appropriate unit. On July 7, 1977, Respondent filed
its answer to the complaint admitting in part, and
denying in part, the allegations in the complaint.
On July 14, 1977, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment. Subsequently, on August 3, 1977, 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. Respondent thereafter filed
an answer to Notice To Show Cause, and the
i Official notice is taken of the record in the representation proceeding,
Case 20-RC-13662, 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 Electrosysteems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (C.A. 4,
232 NLRB No. 68
General Counsel filed a response to Respondent's
answer.
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 answers to the complaint and the Notice To
Show Cause, Respondent contends that the certifica-
tion of the Union in the underlying representation
case is invalid on the basis of its objections therein
and that the Regional Director denied it due process
by not directing an evidentiary hearing thereon.
A review of the record herein, including the record
in Case 20-RC-13662, reveals that, pursuant to a
Stipulation of Certification Upon Consent Election,
an election was held on September 23, 1976, and
resulted in a 36-to- 11 vote in favor of the Union, with
3 challenged ballots.
Respondent filed timely objections to conduct
affecting the results of the election containing the
following allegations: The Union engaged in election-
eering among employees waiting in line to vote and
made false and misleading statements, promises of
benefits, and threats to induce employees to vote for
it; the Board agent interfered with the fair operation
of the election by not following procedures as to
challenges and instructions to observers, permitting
electioneering, and failing to exclude children from
the voting area.
On November 8, 1976, the Regional Director
issued her Report on Objections in which she found
that Respondent's objections raised no substantial or
material issues of fact or law with respect to the
election and were consequently without merit.
Accordingly, she recommended that the objections
be overruled and a certification of representative be
issued to the Union.
Respondent filed timely exceptions to the Regional
Director's Report on Objections reiterating its
objections and request for a hearing. On March 11,
1977, the Board issued its Decision and Certification
of Representative adopting the Regional Director's
findings and recommendations.
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
1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26
(C.A. 5, 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va., 1967);
Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec.
9(d) of the NLRA, as amended.
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HY-LOND CONVALESCENT HOSPITAL
to relitigate issues which were or could have been
litigated in a prior representation proceedings
All issues raised by Respondent in this proceeding
were or could have been litigated in the prior
representation proceeding, and Respondent does not
offer to adduce at a hearing any newly discovered or
previously unavailable evidence,3 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 Respondent has not raised any issue which
is properly 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
I. THE BUSINESS OF RESPONDENT
Respondent, a California corporation with its
principal place of business in Modesto, California, is
engaged in the operation of a convalescent hospital.
During the past calendar year, Respondent received
gross revenues in excess of $100,000, and received
payments from Medicare and Medic-Aid in excess of
$5,000.
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
Hospital and Institutional Workers Union, Local
250, 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
i. 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 housekeeping aides, orderlies, maintenance,
kitchen employees, and licensed vocational nurses
employed by Respondent; excluding all registered
nurses, office clerical employees, guards, watch-
2 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).
men and engineers, and supervisors as defined in
the Act.
2. The certification
On September 23, 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 20, designated the
Union as their representative for the purpose of
collective bargaining with Respondent. The Union
was certified as the collective-bargaining representa-
tive of the employees in said unit on March 11, 1977,
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 23, 1977, and at
all times thereafter, the Union has requested Respon-
dent 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 May 23, 1977, and continuing at all times
thereafter to date, Respondent has refused, and
continues 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
March 23, 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, Respondent has
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the
Act.
C. The Request for Information and
Respondent's Refusal
Commencing on or about March 23, 1977, and at
all times thereafter, the Union has requested Respon-
dent to provide it with information relating to the
wages, hours, and terms of employment of all the
employees in the above-described unit. Commencing
on or about March 23, 1977, and continuing at all
times thereafter to date, Respondent has refused, and
continues to refuse, to provide the Union with said
information.
Accordingly, we find that Respondent has, since
March 23, 1977, and at all times thereafter, refused to
provide the Union with information relevant to its
function as the exclusive representative of the
3 See CSC Oil Company, 220 NLRB 19 (1975).
451
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees in the above-described 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 (I) 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.
We shall also order it to provide the requested
information.
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
I. Hy-Lond Enterprises, Inc., d/b/a/ Hy-Lond
Convalescent Hospital, is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. Hospital and Institutional Workers Union,
Local 250, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. All housekeeping aides, orderlies, mainte-
nance, kitchen employees, and licensed vocational
nurses employed by Respondent; excluding all
registered nurses, office clerical employees, guards,
watchmen and engineers, 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 11, 1977, 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 purposes of
collective bargaining within the meaning of Section
9(a) of the Act.
5. By refusing on or about March 23, 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 refusing on or about March 23, 1977, and at
all times thereafter, to furnish the Union with
information relating to wages, hours, and terms of
employment of the employees 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.
7. By the aforesaid refusal to bargain with the
Union and to provide it with the requested informa-
tion, Respondent has interfered with, restrained, and
coerced, and is interfering with, restraining, and
coercing, employees 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)(l)
of the Act.
8. 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,
Hy-Lond Enterprises, Inc., d/b/a Hy-Lond Conva-
lescent Hospital, Modesto, California, 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 Hospital and Institu-
tional Workers Union, Local 250, AFL-CIO, as the
exclusive bargaining representative of its employees
in the following appropriate unit:
All housekeeping aides, orderlies, maintenance,
kitchen employees, and licensed vocational nurses
employed by Respondent; excluding all registered
452
HY-LOND CONVALESCENT HOSPITAL
nurses, office clerical employees, guards, watch-
men and engineers, and supervisors as defined in
the Act.
(b) Refusing to furnish the above-named labor
organization with information relevant to its function
as the exclusive representative of the employees in
the appropriate unit.
(c) 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) Upon request, provide the Union with informa-
tion relevant to its function as the exclusive represen-
tative of the employees in the appropriate unit.
(c) Post at its Modesto, California, place of
business copies of the attached notice marked
"Appendix." 4 Copies of said notice, on forms
provided by the Regional Director for Region 20,
after being duly signed by Respondent's representa-
tive, 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 Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
I 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 Hospi-
tal and Institutional Workers Union. Local 250,
AFL-CIO, as the exclusive representative of the
employees in the bargaining unit described below.
WE WILL NOT refuse to provide the above-
named Union with information relevant to its
function as the exclusive representative of the
employees in the bargaining unit.
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 housekeeping aides, orderlies, mainte-
nance, kitchen employees, and licensed
vocational nurses employed by Respondent;
excluding all registered nurses, office clerical
employees, guards, watchmen and engineers,
and supervisors as defined in the Act.
WE WILL, upon request, provide the above-
named Union with information relevant to its
function as the exclusive representative of the
employees in the bargaining unit.
HY-LOND ENTERPRISES,
INC. D/B/A HY-LOND
CONVALESCENT HOSPITAL
453