Morgan Health Care Center, Inc.

National Labor Relations Board - Board Decisions

Apr 2, 1979

241 N.L.R.B. 650 (N.L.R.B. 1979)

Rbode
-CA-
Rhode
AFL-
8(a)(5)
2(6)
I-RC-
-RC- -RM-
8(a)(5)
I Official record representation
ef a/., term "rce-
W s . 102.69(g)
8. Elecfrary~frmc. Inc., 166
(19671. F.2d 1968); Golden Bewraxe
I51 (1%7), ~ . 2 d 1969); t i e r rypr C; v. Pmello.
F.Supp. (D.C.V.., 1%7); Folleff Corp., 164 (1967).
F.2d 1%8); Scc. 9(d) the an
8(a)(1)
transferring
proceedihg,
1-
a/., 1-RM-1043,
eleo
tion
fmding recom-
collective-
650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Morgan Health Care Center, Inc. and District 1199
Island, National Union of Hospital and
Health Care Employees, RWDSU, AFL-CIO. Case
1 14984
April 2, 1979
DECISION AND ORDER
Upon a charge filed on September 22, 1978, by
District 1199 Island, National Union of Hos-
pital and Health Care Employees, RWDSU,
CIO, herein called the Union, and duly served on
Morgan Health Care Center, Inc., herein called Re-
spondent, the General Counsel of the National Labor
Relations Board, by the Regional Director for Region
1, issued a complaint on October 4, 1978, against Re-
spondent, alleging that Respondent had engaged in
and was engaging in unfair labor practices affecting
commerce within the meaning of Section and
(1) and Section and (7) of the National Labor
Relations Act, as amended. Copies of the charge,
complaint, and notice of hearing before an Adminis-
trative 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 September 12,
1978, following a Board election in Cases
15733, 1 15734, and 1-RC-15735; 1 1042;
and 1-RM-1043, the Union was duly certified as the
exclusive collective-bargaining representative of Re-
spondent's employees in the unit (voting group (b))
found appropriate1 and that, commencing on or
about September 19, 1978, and at all times thereafter,
Respondent has refused, and continues to date to re-
fuse, to bargain collectively with the Union as the
exclusive bargaining representative, although the
Union has requested and is requesting it to do so. On
October 12, 1978, Respondent filed its answer to the
complaint, admitting in part, and denying in part, the
allegations in the complaint. Respondent admits all
the factual allegations in the complaint but denies
those paragraphs which allege that a majority of the
employees of Respondent in the unit described in the
complaint designated and selected the Union as their
representative for the purposes of collective bargain-
ing and that the Union has been, and is, the repre-
sentative of a majority of the employees. Respondent
also denies that it violated Section and (1) of
the Act.
notice is taken of the in the proceeding.
Cars I-RC-15733 I-RM-1042, and I-RM-1043, as the

ord" is defined in
102.68and of the Board's Rules and Regu-
lations, Series as amended. See LTV NLRB 938
enfd. 388 683 (4th Cir. Age Co., 167
NLRB enfd. 415 26 (5th Cir.

269
573 NLRB 378 enfd.
397 91 (7th Cir. of NLRA. amended.
On November 17, 1978, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment and a motion for transfer to the
Board for decision, with exhibits attached. Counsel
for the General Counsel submits, in effect, that Re-
spondent, in its answer, is seeking to relitigate issues
which were or could have been litigated in the prior
representation proceeding and that the allegations in
paragraphs 12, 13, 14, and 15 of the complaint may
be evaluated and decided without the need for a hear-
ing in the matter. He therefore moved that the Board
find: (1) that a majority of the employees in the ap-
propriate unit, by a valid secret-ballot election, desig-
nated the Union as their representative for the pur-
poses of collective bargaining and that at all times
since the said election on May 25, 1978, the Union
has been the exclusive representative for the purposes
of collective bargaining for the employees in said
unit; (2) that the Respondent did, on September 19,
1978, refuse and continues to refuse to bargain collec-
tively with the Union as the exclusive representative
of all employees in voting group (b); (3) that all other
material allegations in the complaint, which Respon-
dent has, in effect, admitted in its answer, be deemed
to be true; and (4) that Respondent be found to have
violated Section and (5) of the Act without the
taking of evidence in support of the allegations of the
complaint. Subsequently, on November 29, 1978, the
Board issued an order 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 an oppo-
sition to the General Counsel's motion, contending
that summary judgment should not be granted.
Upon the entire record in this the
Board makes the following:
Ruling on the Motion for Summary Judgment
Review of the record herein reveals that in Cases
RC-15733 et 1-RM-1042, and a
Stipulation for Certification Upon Consent Election
was approved by the Regional Director, and the
was conducted on May 25, 1978. On May 30,
1978, Respondent, Morgan Health Care Center, Inc.,
filed objections to conduct affecting the results of the
election. The Acting Regional Director issued his Re-
port on Objections on July 5, 1978, finding no merit
in the objections and recommending that the Union
be certified as to voting group (b). Respondent filed
exceptions to the Acting Regional Director's report
on objections. On September 12, 1978, the Board is-
sued a Decision and Certification in which it adopted
the Acting Regional Director's and

mendations and certified the Union as the

1
(b).2
wages,
Res~ondent
union has repr&ntaGve
8(a)(5)
em~lovees
aAdwere
un-
Certihtion
Memben Penello agreement Re-
Food Inc.. 1
suted misrepmsentation
standards
Hollywmd ceramic^ Conmpany, Inc., 140 (1%2),
Firestone Divuion Firestone
235 General Cali/ornia. Inc.,
(1978). Penello
overruled
cogently Hollywood
Trues-
misnpr*lentation
set
Penello
case.
-RC- -RM-
8(a)(5)
annual
$100,000
$50,000
2(6)
' S C ~ Plate GIau N.LR.B., 146,
102.67(f) 102.69(c).
MORGAN HEALTH CARE CENTER, INC. 65
bargaining representative for the employees in voting
group
Following a request by the Union on or about Sep-
tember 19, 1978, that Respondent bargain collectively
in good faith with respect to rates of pay,
hours of employment, and other terms and conditions
of employment, Respondent refused to recognize and
bargain with the Union as the exclusive bargaining
representative of its employees in the certified unit.
Respondent has refused to bargain with the Union
since September 19, 1978.
On October 12. 1978. filed its answer
admitting in part, and denying in part, the allegations
of the complaint. Respondent admits all the factual
allegations in the complaint but denies those para-
graphs which allege that a majority of the employees
of Respondent in the unit described in the complaint
designated and selected the Union as their represent-
ative for the purposes of collective bargaining and
that the been, and is, the of
a majority of the employees. Respondent also denies
that it violated Section and (1) of the Act.
Additionally, Respondent alleges that the Union
"was not properly certfied," because the Union "en-
gaged in campaign misconduct sufficient to require
that the election be set aside." Respondent further
contends that the union agents' actions "constitute
misrepresentation of material facts involving a sub-
stantial departure from the truth made by a party
with special knowledge of the truth communicated so
shortly before the election that the Respondent had
insufficient time to correct it, and further that it in-
volved the facts about which the were not
in the position to know the truth of such
grievous nature that a fair election was rendered an
impossibility." Respondent finally alleges that the Re-
gional Director abused his discretion in denying it a
hearing on the objections. The General Counsel con-
tends that Respondent is improperly seeking to reliti-
gate issues which were raised and decided in the
In fn. 2 of the underlying Decision and of Representative,
and Murphy stated their with the Acting
gional Director's conclusion that the alleged misrepresentation did not war-
rant the setting aside of the election, for the reasons set forth in their separate
opinions in Shqping Kart Market. 228 NLRB 131 (1977). Chair-
man Fanning that he would find the alleged did not
warrant setting aside the election but that he relied on the enunci-
ated in NLRB 221 and
Steel Products, a of Tire and Rubber Company,
NLRB 548 (1978). Subsequently, in Knit of 239
NLRB No. 101 the Board. Members and Murphy dissenting.
Shqping Kart, and returned to "the standard of review for alleged
misrepresentations most articulated in Ceramics Com-
pany." Accordingly, Chairman Fanning and Members Jenkins and
dale have considered the objections alleged herein under
the standard of review as forth in General Knit and, under that standard.
find that the misrepresentation allegations are not sufficient to warrant set-
ting aside the election. Members and Murphy adhere to their respec-
tive positions in Shqping Kart and, as stated previously in the underlying
representation find no merit in Respondent's election objections.
derlying representation proceeding. We agree with
the General Counsel.
Clearly, by its answer to the complaint, and more
specifically by its denials, in whole or in part, of the
allegations of the complaint and the allegations in its
answer, Respondent is attempting to relitigate the
same issues which it raised in the underlying repre-
sentation Cases 1 15733 et al., 1 1042, and
1-RM-1043, and which were decided against it
therein.
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 is not entitled to reliti-
gate issues which were or could have been litigated in
a prior representation proceeding?
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:
I. THE BUSINESS OF RESPONDENT
Respondent is, and has been at all times material
,herein, a Rhode Island corporation engaged in the
operation of a nursing home and has gross
revenues in excess of and annually pur-
chases goods and materials valued in excess of
from points located directly outside the State
of Rhode Island. At all times mentioned herein, Re-
spondent has maintained its principal office and place
of business at 80 Morgan Avenue, Johnston, Rhode
Island.
We find, on the basis of the foregoing, that Respon-
dent is, and has been at all times material herein, an
employer engaged in commerce within the meaning
of Section and (7) of the Act and that it will
effectuate the policies of the Act to assert jurisdiction
herein.
Pittsburgh Co. v. 313 U.S. 162 (1941);
Rules and Regulation8 of the Board. Sees. and
2(5)
111.
9(b)
1,
9(a)
Reficral
8(a)(5)
UNFAIR
111,
8(a)(5)
a~propriate
Poultty
(1962), F.2d
1964), Burnett
149 (1964),
F.2d
2(6)
2(5)
652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
11. THE LABOR ORGANIZATION INVOLVED
District 1199 Rhode Island, National Union of
Hospital and Health Care Employees, RWDSU,
AFL-CIO, is a labor organization within the mean-
ing of Section of the Act.
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 of the Act:
(b) All licensed practical nurses, orderlies,
nurses aides, housekeeping employees, dietary
employees, maintenance employees, activities
aide and unit ward clerks employed by Respon-
dent at its 80 Morgan Avenue, Johnston, Rhode
Island location excluding all business office cleri-
cal employees, administrator, assistant adminis-
trator, director of nursing, assistant director of
nursing (staff development director), chef (food
service director), activities director, housekeep-
ing supervisor, medical records aide, guards and
supervisors as defined in the Act.
2. The certification
On May 25, 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 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 September 12, 1978, and the Union con-
tinues to be such exclusive representative within the
meaning of Section of the Act.
B. The Request To Bargain and Respondent's
Commencing on or about September 19, 1978, and
at all times thereafter, the Union has requested Re-
spondent to bargain collectively with it as the exclu-
sive collective-bargaining representative of all the em-
ployees in the above-described unit. Commencing on
or about September 19, 1978, 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
September 19, 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 by such refusal, Respondent has
engaged in and is engaging in unfair labor practices
within the meaning of Section and (1) of the
Act.
IV. THE EFFECT OF THE LABOR PRACTICES

UPON COMMERCE

The activities of Respondent set forth in section
above, occumng 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 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
unit. See Mar-Jac Company, Inc., 136 NLRB
785 (1962); Commerce Company d/b/a Lamar Hotel,
140 NLRB 226, 229 enfd. 328 600 (5th
Cir. cert. denied 379 U. S. 8 17 (1964);
Construction Company, NLRB 1419, 1421
enfd. 350 57 (10th Cir. 1965).
The Board, upon the basis of the foregoing facts
and the entire record makes the following:
1. Morgan Health Care Center, Inc., is an em-
ployer engaged in commerce within the meaning of
Section and (7) of the Act.
2. District 1199 Rhode Island, National Union of
Hospital and Health Care Employees, RWDSU,
AFL-CIO, is a labor organization within the mean-
ing of Section of the Act.
3. All licensed practical nurses, orderlies, nurses
aides, housekeeping employees, dietary employees,
maintenance employees, activities aide, and unit
9(b)
9(a)
8(a)(5)
8(a)(l)
2(6)
(b)
affnnative
"Appendi~."~
k e n ta.ken
1qc)
Rela.
1
the eveat cb.1 this enforced r Judgment r United Sutm
Coun Apperls, w& mding "Pawl Ordcr the
Nrtionrl Relrtioar Baud" lh l l rad " h i e d Rvnunt r
the Uniwl Shtm Cwrt Appulr Enforcing m d the National
Rclatioru Board."
NOTICE To
POSTED ORDER
NATIONAL ABOR ELATIONS BOARD
653 MORGAN HEALTH CARE CENTER, INC.
ward clerks employed by the Respondent at its 80
Morgan Avenue, Johnston, Rhode Island, location,
excluding all business office clerical employees, ad-
ministrator, assistant administrator, director of nurs-
ing, assistant director of nursing (staff development
director), chef (food service director), activities direc-
tor, housekeeping supervisor, medical records aide,
guards, and supervisors as defined in the Act, consti-
tute a unit appropriate for the purposes of collective
bargaining within the meaning of Section of the
Act.
4. Since September 12, 1978, the above-named la-
bor 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 of
the Act.
5. By refusing on or about September 19, 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 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 to them in
Section 7 of the Act and thereby has engaged in and
is engaging in unfair labor practices within the mean-
ing of Section of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section and (7) of the Act.
ORDER
Pursuant to Section of the National Labor
Relations Act, as amended, the National Labor
tions Board hereby orders that Respondent, Morgan
Health Care Center, Inc., Johnston, Rhode Island, 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 District 199 Rhode Is-
land, National Union of Hospital and Health Care
Employees, RWDSU, AFL-CIO, as the exclusive
bargaining representative of its employees in the fol-
lowing appropriate unit:
All licensed practical nurses, orderlies, nurses
aides, housekeeping employees, dietary employ-
ees, maintenance employees, activities aide and
unit ward clerks employed by the Respondent at
its 80 Morgan Avenue, Johnston, Rhode Island
location excluding all business office clerical em-
ployees, administrator, assistant administrator,
director of nursing, assistant director of nursing
(staff development director), chef (food service
director), activities director, housekeeping super-
visor, medical records aide, guards and supervi-
sors as defined in the Act.
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 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 an4 if an understand-
ing is reached, embody such understanding in a
signed agreement.
(b) Post at its 80 Morgan Avenue, Johnston,
Rhode Island, location copies of the attached notice
marked Copies of said notice, on forms
provided by the Regional Director for Region 1, 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.
(c) Notify the Regional Director for Region 1, in
writing, within 20 days from the date of this Order,
what steps have to comply herewith.
* In Order is by of

of the in the notice by
of

Labor to Judgment
of of Order
Labor
APPENDIX
EMPLOYEES

BY
OF THE
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 Dis-
trict 1 199 Rhode Island, National Union of Hos-
pital and Health Care Employees, RWDSU,
AFL-CIO, as the exclusive representative of the
employees in the bargaining unit described be-
low.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
RELATlONS
maintlenance
Rhode
service
654 DECISIONS OF NATIONAL LABOR
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 licensed practical nurses, orderlies, nurses
aides, housekeeping employees, dietary em-
BOARD
ployees, employees, activities
aide and unit ward clerks employed by us at
our 80 Morgan Avenue, Johnston, Is-
land, location excluding all business office
clerical employees, administrator, assistant ad-
ministrator, director of nursing, assistant di-
rector of nursing (staff development director),
chef (food director), activities director,
housekeeping supervisor, medical records aide,
guards and supervisors as defined in the Act.