Medi-Center of America

National Labor Relations Board - Board Decisions

Feb 12, 1991

301 N.L.R.B. 680 (N.L.R.B. 1991)

680
301 NLRB No. 92
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On January 14, 1991, District 6, International Union of Industrial Service
Transport and Health Employees, filed a request for special permission to ap-
peal the Regional Director’s denial of its motion to intervene in the instant
proceeding. The District claims that it is entitled to intervene inasmuch as it
was an intervenor in the underlying representation proceedings, and because
it would otherwise be foreclosed from seeking judicial review of the issues
raised in those proceedings. On January 24, 1991, the General Counsel filed
an opposition to the District’s request.
We deny the District’s request for special permission to appeal. Sec. 10(b)
of the Act expressly provides that intervention in unfair labor practice pro-
ceedings is discretionary with the Board, and not a matter of right. In the exer-
cise of that discretion, we find that the purposes and policies of the Act would
best be served by denying intervention in the instant circumstances. First, al-
lowing District 6 to intervene in this proceeding would afford it an avenue
for obtaining judicial review of the issues in the representation proceeding that
the statutory scheme otherwise denies. See American Federation of Labor v.
NLRB, 308 U.S. 401, 411 (1940). Second, the District’s participation as an in-
tervening party, with all the rights that such participation extends, would un-
duly delay the proceeding. The Board’s bargaining order in this case runs only
against the Respondent Employer, its successors and assigns—not the Dis-
trict—and the Respondent is fully capable of defending itself in this regard.
Finally, to the extent District 6 seeks to assert objections or protect interests
different from the Respondent’s, it has other means by which to do so. See
NLRB v. Lawrence Typographical Union 570, 376 F.2d 643 (10th Cir. 1967);
and American Bread Co. v. NLRB, 411 F.2d 147 (6th Cir. 1969) (validity of
election reviewed in subsequent 8(b)(7) proceeding).
2 In its exceptions to the Regional Director’s finding that its election objec-
tions were untimely, the Respondent argued that the Board should adopt Mem-
ber Cracraft’s dissenting position in Drum Lithographers, 287 NLRB 22
(1987), and extend the time for filing objections to allow for the intervening
Thanksgiving holiday. At no time, however, has the Respondent argued that
the Board should follow the additional position set forth in Member Cracraft’s
Drum Lithographers dissent and apply the ‘‘postmark’’ rule to objections; or
alleged that its objections, which were filed the day after the due date, would
have been timely under that rule. Accordingly, we find it unnecessary to ad-
dress in this case whether the Board’s recent decision in John I. Haas, 301
NLRB 300 (1991), which overruled Drum Lithographers and adopted the
‘‘postmark’’ rule for objections, should be applied retroactively.
Holiday Medical Center, Inc., d/b/a Medi-Center of
America, HBA Corporation, and Health Care
Services group, Inc. and 1115 Nursing Home
and Hospital Employees Union, A Division of
1115 Joint Board. Case 4–CA–19075
February 12, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND OVIATT
October 16, 1990, the General Counsel of the Na-
tional Labor Relations Board issued a complaint alleg-
ing that the Respondent has violated Section 8(a)(5)
and (1) of the National Labor Relations Act by refus-
ing the Union’s request to bargain following the
Union’s certification in Cases 4–RC–17010 and 4–RC–
17021. (Official notice is taken of the ‘‘record’’ in the
representation proceeding as defined in the Board’s
Rules and Regulations, Secs. 102.68 and 102.69(g);
Frontier Hotel, 265 NLRB 343 (1982).) The Respond-
ent filed an answer admitting in part and denying in
part the allegations in the complaint.
On December 26, 1990, the General Counsel filed a
Motion for Summary Judgment. On January 2, 1991,
the Board issued an order transferring the proceeding
to the Board and a Notice to Show Cause why the mo-
tion should not be granted. On January 15, 1991, the
Respondent filed a response.1
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
Ruling on Motion for Summary Judgment
In its answer and response to the Notice to Show
Cause the Respondent admits its refusal to bargain, but
attacks the validity of the certification based both on
the substance of its objections to the election in the
representation proceeding, and on the ground that the
Board improperly rejected those objections as untimely
filed.2
All representation issues raised by the Respondent
were or could have been litigated in the prior represen-
tation proceeding. The Respondent does not offer to
adduce at a hearing any newly discovered and pre-
viously unavailable evidence, nor does it allege any
special circumstances that would require the Board to
reexamine the decision made in the representation pro-
ceeding. We therefore find that the Respondent has not
raised any representation issue that is properly litigable
in this unfair labor practice proceeding. See Pittsburgh
Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941).
Accordingly, we grant the Motion for Summary Judg-
ment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, Holiday Medical Center, Inc., d/b/a
Medi-Center of America, HBA Corporation, and
Health Care Services Group, Inc., a New Jersey cor-
poration, operates a nursing home at its facility in
Lakewood, New Jersey, where it received gross reve-
nues in excess of $100,000 and purchased and received
goods and materials valued in excess of $10,000 di-
rectly from points outside the State of New Jersey, all
during the past calendar year. We find that the Re-
spondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act and
that the Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following an election held November 22, 1989, the
Union was certified on May 18, 1990, as the collec-
tive-bargaining representative of the employees in the
following appropriate unit:
Included: All full-time and regular part-time or-
derlies, nurses aides, dietary workers, house-
681MEDI-CENTER OF AMERICA
3 If 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 Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
keepers and laundry workers employed by the Re-
spondent at its Lakewood, New Jersey facility.
Excluded: All other employees, professional
employees, registered nurses, licensed practical
nurses, technical employees, maintenance employ-
ees, clerical employees, cooks, recreation employ-
ees, instructors, guards and supervisors as defined
in the Act.
The Union continues to be the exclusive representative
under Section 9(a) of the Act.
B. Refusal to Bargain
Since on or about May 22, 1990, the Union has re-
quested the Respondent to bargain, and, since July 5,
1990, the Respondent has refused. We find that this re-
fusal constitutes an unlawful refusal to bargain in vio-
lation of Section 8(a)(5) and (1) of the Act.
CONCLUSION OF LAW
By refusing on and after July 5, 1990, to bargain
with the Union as the exclusive collective-bargaining
representative of employees in the appropriate unit, the
Respondent has engaged in unfair labor practices af-
fecting commerce within the meaning of Section
8(a)(5) and (1) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has violated Sec-
tion 8(a)(5) and (1) of the Act, we shall order it to
cease and desist, to bargain on request with the Union,
and, if an understanding is reached, to embody the un-
derstanding in a signed agreement.
To ensure that the employees are accorded the serv-
ices of their selected bargaining agent for the period
provided by law, we shall construe the initial period of
the certification as beginning the date the Respondent
begins to bargain in good faith with the Union. Mar-
Jac Poultry Co., 136 NLRB 785 (1962); Lamar Hotel,
140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th
Cir. 1964), cert. denied 379 U.S. 817 (1964); Burnett
Construction Co., 149 NLRB 1419, 1421 (1964), enfd.
350 F.2d 57 (10th Cir. 1965).
ORDER
The National Labor Relations Board orders that the
Respondent, Holiday Medical Center, Inc. d/b/a Medi-
Center of America, HBA Corporation, and Health Care
Services Group, Inc., Lakewood New Jersey, its offi-
cers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with 1115 Nursing Home
and Hospital Employees Union, a Division of 1115
Joint Board , as the exclusive bargaining representative
of the employees in the bargaining unit.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclu-
sive representative of the employees in the following
appropriate unit on terms and conditions of employ-
ment, and if an understanding is reached, embody the
understanding in a signed agreement:
Included: All full-time and regular part-time or-
derlies, nurses aides, dietary workers, house-
keepers and laundry workers employed by the Re-
spondent at its Lakewood, New Jersey facility.
Excluded: All other employees, professional
employees, registered nurses, licensed practical
nurses, technical employees, maintenance employ-
ees, clerical employees, cooks, recreation employ-
ees, instructors, guards and supervisors as defined
in the Act.
(b) Post at its facility in Lakewood, New Jersey,
copies of the attached notice marked ‘‘Appendix.’’3
Copies of the notice, on forms provided by the Re-
gional Director for Region 4, after being signed by the
Respondent’s authorized representative, shall be posted
by the Respondent immediately on receipt and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
MEMBER CRACRAFT, dissenting.
As indicated by the majority, it is my position that
the 7-day period for filing objections should be ex-
tended by 1 day where a holiday falls during the first
6 days of the objections filing period. See my dis-
senting opinion in Drum Lithographers, 287 NLRB 22,
23 (1987). I dissented on this ground in the underlying
representation case and would have found that the Re-
spondent’s objections were timely filed. Therefore, in
my view, the certification of the Union was improper.
Accordingly, I would deny the General Counsel’s Mo-
tion for Summary Judgment and I dissent from my col-
leagues’ finding of a violation of Section 8(a)(5) here-
in.
682 DECISIONS 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
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to bargain with 1115 Nursing
Home and Hospital Employees Union, a Division of
1115 Joint Board 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 you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain with the Union and
put in writing and sign any agreement reached on
terms and conditions of employment for our employees
in the bargaining unit:
Included: All full-time and regular part-time or-
derlies, nurses aides, dietary workers, house-
keepers and laundry workers employed by the Re-
spondent at its Lakewood, New Jersey facility.
Excluded: All other employees, professional
employees, registered nurses, licensed practical
nurses, technical employees, maintenance employ-
ees, clerical employees, cooks, recreation employ-
ees, instructors, guards and supervisors as defined
in the Act.
HOLIDAY MEDICAL CENTER, INC. D/B/A
MEDI-CENTER OF AMERICA, HBA COR-
PORATION, AND HEALTH CARE SERV-
ICES GROUP, INC.