Maple Shade Nursing Home

National Labor Relations Board - Board Decisions

Apr 13, 1977

228 N.L.R.B. 1457 (N.L.R.B. 1977)

MAPLE SHADE NURSING HOME
Maple Shade Nursing Home, Inc. d/b/a Maple Shade
Nursing Home and Convalescent Center and
Retail Clerks Union , Local 1360 a/w Retail Clerks
International Association , AFL-CIO. Case 4-CA-
8135
April 13, 1977
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND JENKINS
Upon a charge filed on August 3, 1976, by Retail
Clerks Union, Local 1360 a/w Retail Clerks Interna-
tional Association, AFL-CIO, herein called the
Union, and duly served on Maple Shade Nursing
Home, Inc. d/b/a Maple Shade Nursing Home and
Convalescent Center, herein called Respondent, the
General Counsel of the National Labor Relations
Board, by the Regional Director for Region 4, issued
a complaint and notice of hearing on September 9,
1976, 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 July 9, 1976,
following a Board election in Case 4-RC-11539 the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate;1 and that, commenc-
ing on or about July 27, 1976, 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 September 20, 1976, Respondent filed its answer
to the complaint admitting in part, and denying in
part, the allegations in the complaint.
On October 21, 1976, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on November 1,
1976, 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 as a response to Notice To Show
1 Official notice is taken of the record in the representation proceeding,
Case 4-RC-11539, 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,
228 NLRB No. 188
1457
Cause a "Statement and Memorandum in Opposi-
tion to Board'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 response to the
Notice To Show Cause, Respondent contends that
the single unit of licensed practical nurses (LPNs)
and registered nurses (RNs), found appropriate in
the underlying representation case, is inappropriate
because the two classifications of nurses should be
separately represented and because the nurses are
supervisors. It also argues that the Union's certifica-
tion is invalid because the Union's preelection
remarks against Respondent destroyed the laborato-
ry conditions for conducting an election. The
General Counsel asserts that Respondent has raised
no substantial issues which are litigable herein or
which require an evidentiary hearing. We agree with
the General Counsel.
Review of the record herein, including that in Case
4-RC-11539, discloses that after a hearing in the
representation proceeding the Regional Director, on
May 21, 1975, issued his Decision and Direction of
Elections in which he found (I) that, contrary to
Respondent, the LPNs and the RNs were not
supervisors within the meaning of the Act; and (2)
that since the LPNs and the RNs have a sufficient
community of interest they may constitute a single
appropriate unit. However, because he found that the
RNs were professional employees, a majority of
whom, under Section 9(b)(1) of the Act, must vote
for inclusion in the single nurses' unit, the Regional
Director, in accord with usual Board practice,
directed elections in separate voting groups of LPNs
and RNs. On May 22, 1975, Respondent filed a
motion to reopen the record, requesting that the
record be reopened to consider evidence with regard
to the impact on the voting units of recent Board
decisions, issued since the hearing, in which the
Board found that RNs should be represented in a
separate unit and that LPNs should be represented
with other technical employees. Respondent also
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
1458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
requested that the election be stayed pending
disposition of these matters.2 On June 3, 1975, the
Regional Director denied Respondent's motions to
reopen the record and to delay the holding of the
elections. Respondent filed a timely request for
review, reiterating its unit contentions and its
contention as to the supervisory status of the nurses.
It also requested special permission to appeal from
the denial of its motions to delay the elections, and
reopen the hearing, arguing that it was thereby
deprived of due process and requesting that the
Regional Director, at the very least, be required to
conduct an investigation and/or hold a hearing. On
June 20, 1975, the Board denied the request for
review of the Regional Director's Decision and
Direction of Elections as it raised no substantial
issues warranting review and also denied the request
for special permission to appeal the Regional
Director's denial of the motions to reopen the record
and to delay the elections.
In the elections subsequently held on June 26,
1975, the tally of ballots showed (1) that in the LPN
voting group the vote was in favor of the Union, and
(2) that in the RN unit the vote on the question of
representation was five for, and seven against, the
Union with three challenges; the vote on the question
of inclusion with the LPNs was six for and six
against, with three challenges. Respondent filed nine
timely objections, alleging, in substance and in
pertinent part, the following union conduct: (1)
preelection waiver of initiation fees; (2) offers of
money to buy employee support; (3) distribution of a
union leaflet and a statement that the employees who
signed the leaflet were union supporters and those
who did not were against the Union; (4) antisemitic
remarks at meetings of employees prior to the
election. On August 29, 1975, the Acting Regional
Director directed that the objections and challenges
be consolidated for hearing with the complaint in
Cases 4-CA-7387 and 4-CA-7612 which alleged
that two of the challenged voters had been unlawful-
2 On May 23, 1975, Respondent filed a motion to delay the holding of
the elections because a fire prevented it from effectively exercising its right
to express views, arguments, or opinions as permitted under Sec 8(c) of the
Act
3 At the hearing, Respondent withdrew five of the nine objections
The Certification of Representative described the unit as
Unit A Licensed practical nurses of Maple Shade Nursing Home,
inc. d/b/a Maple Shade Nursing and Convalescent Center at its
nursing home in Maple Shade, New Jersey, but excluding all other
professional and nonprofessional employees, guards and supervisors as
defined in the Act
Unit B All registered nurses of Maple Shade Nursing Home, Inc.
d/b/a Maple Shade Nursing and Convalescent Center at its nursing
home in Maple Shade, New Jersey, but excluding all other professional
and nonprofessional employees, guards, and supervisors as defined in
the Act
Contrary to the Respondent 's contention , a single unit of LPNs and
RNs is not inappropriate because of subsequent Board precedents
Respondent contends that such decisions, emphasizing the separate
ly terminated in violation of Section 8(a)(3) and (1)
of the Act. After a hearing, Administrative Law
Judge Ricci issued his Decision in which he found
that the aforesaid four objections were without
merit3 and recommended that they and the three
challenges be overruled. Respondent filed timely
exceptions to the Administrative Law Judge's Deci-
sion. On May 17, 1976, the Board issued its Decision,
Order, and Direction (223 NLRB 1475), in which it
adopted, with certain modifications, the rulings,
findings, conclusions, and recommendations of the
Administrative Law Judge and directed, inter alia,
that the Regional Director open and count the three
challenged ballots and issue a revised tally of ballots
and the appropriate certification. On June 7, 1976,
Respondent filed a motion for reconsideration,
reiterating its objection pertaining to antisemitic
remarks. On June 23, 1976, the Board denied the
motion as it contained nothing not previously
considered. On June 29, 1976, revised tallies of
ballots were issued showing that the RNs voted 9 to 6
to be included in a single unit with the LPNs, and
that the employees in the single unit voted 14 to 10 in
favor of representation by the Union. Thereafter, on
July 9, 1976, the Regional Director issued his
Certification of Representative certifying the Union
as the exclusive representative of the LPNs and the
RNs in a single unit.4
It thus appears that Respondent's contentions
herein are matters which were raised and determined
in the underlying representation and unfair labor
practice cases.5
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.6
All issues raised by Respondent in this proceeding
were or could have been litigated in the prior
representation proceeding, and Respondent does not
community of interest of the RNs, make it clear that the RNs are a
subgroup of professional employees who should not be treated like other
professional employees We find no merit in that contention The cases on
which the Respondent relies do not establish that LPNs and RNs may not
be combined in a single unit, only that separate LP and RN units may be
appropriate. Those decisions did not treat RNs as a special subgroup of
professional employees and were not intended to, nor did they, dilute the
community of interest between RNs and LPNs. They did not foreclose a
finding, such as that by the Regional Director in the underlying representa-
tion proceeding, that RNs and LPNs may be included in a single unit,
subject, of course , to the statutorily required consent of professional
employees for inclusion in the same unit with nonprofessional employees
Pinecrest Convalescent Home, Inc, 222 NLRB 13 (1976), which Respondent
relies on , at most establishes that a relief RN may be excluded from a
petitioned for LPN unit as a professional employee That issue, however,
was not discussed in the Board's Decision . Accordingly, we find no need for
further hearing on this point.
6 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)
MAPLE SHADE NURSING HOME
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 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
1. THE BUSINESS OF RESPONDENT
Respondent, a New Jersey corporation, is engaged
in the operation of providing skilled help and nursing
facilities and services from its location in Maple
Shade, New Jersey. During the past year, Respon-
dent's dollar value of performance of services
exceeded $100,000 and it received goods valued in
excess of $5,000 from firms located in the State of
New Jersey, which firms received said goods directly
from outside the State of New Jersey.
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
Retail Clerks Union , Local 1360 a/w Retail Clerks
International Association , 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 Respondent constitute
a unit appropriate for collective-bargaining purposes
within the meaning of Section 9 (b) of the Act:
All registered nurses and licensed practical nurses
of Maple Shade Nursing Home , Inc. d/b/a
Maple Shade Nursing and Convalescent Center
at its nursing home in Maple Shade , New Jersey;
but excluding all other professional and nonpro-
fessional employees , guards, and supervisors as
defined in the Act.
2. The certification
1459
On June 26, 1975, a majority of the employees of
Respondent in said unit, in a secret ballot election
conducted under the supervision of the Regional
Director for Region 4 designated the Union as their
representative for the purpose of collective bargain-
ing with Respondent. The Union was certified as the
collective-bargaining representative of the employees
in said unit on July 9, 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 July 19 , 1976, 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 July 27, 1976, 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
July 27, 1976, 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.
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.
1460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 (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. Maple Shade Nursing Home, Inc. d/b/a
Maple Shade Nursing Home and Convalescent
Center, is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. Retail Clerks Union, Local 1360 a/w Retail
Clerks International Association, AFL-CIO, is a
labor organization within the meaning of Section 2(5)
of the Act.
3. All registered nurses and licensed practical
nurses of Maple Shade Nursing Home, Inc. d/b/a
Maple Shade Nursing, and Convalescent Center at
its nursing home in Maple Shade, New Jersey; but
excluding all other professional and nonprofessional
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 July 9, 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 July 27, 1976, 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
r 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
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 the Respondent,
Maple Shade Nursing Home , Inc. d/b/a Maple
Shade Nursing Home and Convalescent Center,
Maple Shade , New Jersey , 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 Retail Clerks Union,
Local 1360 a/w Retail Clerks International Associa-
tion , AFL-CIO, as the exclusive bargaining represen-
tative of its employees in the following appropriate
unit:
All registered nurses and licensed practical nurses
of Maple Shade Nursing Home, Inc. d/b/a
Maple Shade Nursing and Convalescent Center
at its nursing home in Maple Shade, New Jersey;
but excluding all other professional and nonpro-
fessional 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 facilities in Maple Shade, New
Jersey, copies of the attached notice marked "Appen-
dix." 7 Copies of said notice, on forms provided by
the Regional Director for Region 4, 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 thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
MAPLE SHADE NURSING HOME 1461
dent to insure that said notices are not altered,
defaced , or covered by any other material.
(c) Notify the Regional Director for Region 4, in
writing , within 20 days from the date of this Order,
what steps have been taken to comply herewith.
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 Retail
Clerks Union, Local 1360 a/w Retail Clerks
International Association, 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
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 registered nurses and licensed practical
nurses of Maple Shade Nursing Home, Inc.
d/b/a Maple Shade Nursing and Convales-
cent Center at its nursing home in Maple
Shade, New Jersey; but excluding all other
professional and nonprofessional employees,
guards, and supervisors as defined in the
Act.
MAPLE SHADE NURSING
HOME, INC. D/B/A
MAPLE SHADE NURSING
HOME AND
CONVALESCENT CENTER