Manhattan Corp.

National Labor Relations Board - Board Decisions

Jun 13, 1979

242 N.L.R.B. 1113 (N.L.R.B. 1979)

MANHATTAN CORPORATION
Manhattan Corporation, Manhattan Guest House,
Inc. and Service Employees International Union,
Local No. 275, AFL-CIO. Case 15-CA-7217
June 13, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND TRUESDALE
Upon a charge filed on March 1, 1979, by Service
Employees International Union, Local No. 275,
AFL-CIO, herein called the Union, and duly served
on Manhattan Corporation, Manhattan Guest
House, Inc., herein called Respondent, the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 15, issued a com-
plaint and notice of hearing on March 16, 1979,
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 Na-
tional 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 com-
plaint alleges in substance that on January 26, 1979,
following a Board election in Case 15-RC-6305 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 26, 1979, and at all times there-
after, 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
March 28, 1979, Respondent filed its answer to the
complaint admitting in part, and denying in part, the
allegations in the complaint.
On April 5, 1979, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment. Subsequently, on April 11, 1979, the
Board issued an order transferring the proceeding to
the Board and a Notice To Show Cause why the Gen-
eral Counsel's Motion for Summary Judgment should
not be granted. Respondent thereafter filed no re-
sponse to Notice To Show Cause.
I Official notice is taken of the record in the representation proceeding,
Case 15-RC-6305, 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 (4th Cir.
1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26
(5th Cir. 1969); Inrtertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va. 1957);
Follett Corp., 164 NLRB 38 (1967), enfd. 397 F.2d 91 (7th Cir. 1968); Sec.
9(d) of the NLRA, as amended.
Pursuant to the provisions of 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 following:
Ruling on the Motion for Summary Judgment
In its answer to the complaint, Respondent admits
its refusal to bargain but attacks the Union's certifica-
tion on the basis that the Board erred in certifying the
Union as the exclusive collective-bargaining repre-
sentative of Respondent's employees in the appropri-
ate unit. In his Motion for Summary Judgment, coun-
sel for the General Counsel alleges that Respondent
seeks to relitigate issues previously considered in the
underlying representation case and that there are no
factual issues warranting a hearing.
Our review of the record herein, including the rec-
ord in Case 15-RC-6305, discloses, inter alia, that
pursuant to a Stipulation for Certification Upon Con-
sent Election an election was conducted among the
employees in the stipulated unit on June 23. 1978,
and that the tally of ballots furnished the parties after
the election showed 43 votes cast for, and 42 against,
the Union. There were five challenged ballots and
three void ballots, a sufficient number to affect the
results. Respondent filed timely objections which al-
leged in substance that the Board agent conducting
the election voided three ballots which should have
been counted. Two of the disputed ballots had no
markings on their faces, but were marked with an
"X" on the blank reverse side. The third disputed bal-
lot had no markings on its face, but had the word
"NO" written on the blank reverse side. Respondent
contended that these ballots should have been
counted as clear manifestations of the voters' intent.
After investigation, the Acting Regional Director on
August 16, 1978, issued his Report on Objections and
Challenged Ballots to the Board in which he recom-
mended that the objections be overruled and that two
of the challenges be sustained. In accordance with the
stipulation of all parties, the challenges to the remain-
ing three ballots were sustained.
On August 30, 1978, Respondent filed exceptions
to the Acting Regional Director's report in which it
essentially reiterated the allegations and contentions
set forth in its objections and in which it cited addi-
tional authority in support thereof. On January 26,
1979, the Board issued a Decision and Certification of
Representative, 2 adopting the Acting Regional Direc-
tor's report and recommendations.'
2 240 NLRB 272.
1 Member Murphy, dissenting, would have counted the ballot marked
"NO" on the back as a clear manifestation of the voter's intent.
242 NLRB No. 156
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DE('ISIONS OF NATIONAL LABOR RELATIONS BOARD
On January 31. 1979, the Union. by letter re-
quested and is continuing to request Respondent to
recognize the Union and to meet and bargain collec-
tively and to provide the Union with information for
the purpose of commencing collective-bargaining ne-
gotiations.4 In its answer to the complaint, Respon-
dent admits that it has refused and is continuing to
refuse to recognize the Union, to meet and bargain
collectively with the Union. and to provide the Union
with relevant information for the purpose of collec-
tive bargaining in order to test the certification of the
Union as the exclusive collective-bargaining repre-
sentative of its employees. It thus appears that Re-
spondent is attempting to raise herein issues which
were raised in the underlying representation case.
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 relitigate
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 FACI
1. THE BUSINESS OF RESPONDENT
Respondent, a Louisiana corporation, is engaged in
the health care of the elderly. During the past 12
months, a representative period, Respondent, in the
course and conduct of its business operations, re-
ceived gross revenues in excess of $100,000. During
the same period of time Respondent purchased sup-
plies and materials valued in excess of $10,000 which
were shipped directly to said facilities from points lo-
cated outside the State of Louisiana.
We find, on the basis of the foregoing, that Respon-
dent is, and has been at all times material herein, an
I This information includes the names, addresses, wage rates, and fringe
benefits of Respondent's employees.
ISee Pittsburgh Plate Glass Co. v. N L.R.B.. 313 U.S. 146, 162 (1941).
Rules and Regulations of the Board. Sees. 102.67(f) and 102.69(c).
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.
11. I I.ABOR ()R(ANIZA'l)ON INVO()I.VED
Service Employees International Union, Local No.
275, AFL CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
111. lit UNFAIR ABOR PRAC('TICES
A. The Representation 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 licensed
practical nurses, nurses aides, housekeeping em-
ployees, dietary employees, laundry employees
and groundsmen; excluding all professional em-
ployees, confidential secretary, watchmen,
guards and supervisors as defined in the Act.
2. The certification
On June 23, 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 15, 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 January 26, 1979, and the Union contin-
ues 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 31, 1979, 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 employ-
ees in the above-described unit. Commencing on or
about February 26, 1979, 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 and to furnish
the Union with the information requested by it.
Accordingly, we find that Respondent has, since
1114
MANHATTAN CORPORATION
February 26, 1979, and at all times thereafter, refused
to bargain collectively with the Union as the exclu-
sive representative of the employees in the appropri-
ate 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.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section
II1, 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 Compaun dbl/a Lamar Hotel,
140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th
Cir. 1964), cert. denied 379 U.S. 817 (1964); Burnett
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:
CONCI.USIONS OF LAW
1. Manhattan Corporation, Manhattan Guest
House, 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. 275, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All full-time and regular part-time licensed
practical nurses, nurses aides, housekeeping employ-
ees, dietary employees. laundry employees and
groundsmen: excluding all professional employees,
confidential secretary, watchmen, guards, and super-
visors as defined in the Act, constitute a unit appro-
priate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act.
4. Since January 26. 1979, the above-named labor
organization has been and now is the certified and
exclusive 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 February 26, 1979. and
at all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive bar-
gaining representative of all the employees of Re-
spondent in the appropriate unit and to furnish it in-
formation relevant for the purpose of collective
bargaining, Respondent has engaged in and is engag-
ing in unfair labor practices 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 the Respondent, Man-
hattan Corporation. Manhattan Guest House, Inc.,
Harvey, Louisiana, 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 Service Employees Inter-
national Union, Local No. 275, AFL-CIO, as the ex-
clusive bargaining representative of its employees in
the following appropriate unit:
All full-time and regular part-time licensed
practical nurses, nurses aides, housekeeping em-
ployees. dietary employees, laundry employees
and groundsmen: excluding all professional em-
ployees, confidential secretary, watchmen,
guards and supervisors as defined in the Act.
(b) Refusing to furnish the above-named labor or-
1115
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ganization with information relevant and necessary
for the purpose of collective bargaining.
(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 understand-
ing is reached, embody such understanding in a
signed agreement.
(b) Upon request, provide the above-named labor
organization with information relevant and necessary
for the purpose of collective bargaining.
(c) Post at its Manhattan Boulevard, Harvey, Lou-
isiana, facility copies of the attached notice marked
"Appendix."6 Copies of said notice, on forms pro-
vided by the Regional Director for Region 15, after
being duly signed by Respondent's representative,
shall be posted by Respondent immediately upon re-
ceipt thereof, and be maintained by it for 60 consecu-
tive 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, de-
faced, or covered by any other material.
(d) Notify the Regional Director for Region 15, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
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 Ser-
vice Employees International Union, Local No.
275, AFL-CIO, as the exclusive representative of
the employees in the bargaining unit described
below.
WE WILL NOT refuse to supply information re-
quested by the Union which is relevant and nec-
essary for the purpose of collective bargaining.
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
agreement. The bargaining unit is:
All full-time and regular part-time licensed
practical nurses, nurses aides, housekeeping
employees, dietary employees, laundry em-
ployees and groundsmen; excluding all profes-
sional employees, confidential secretary,
watchmen, guards and supervisors as defined
in the Act.
MANHATTAN CORPORATION, MANHATTAN
GUEST HOUSE, INC.
1116