New London Convalescent Home

National Labor Relations Board - Board Decisions

Mar 29, 1985

274 N.L.R.B. 1442 (N.L.R.B. 1985)

1442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Eastern Connecticut Health Services , Inc. d/b/a
New London Convalescent Home and New Eng-
land Health Care Employees Union , District
1199 , RWDSU, AFL-CIO. Case 39-CA-2265
29 March 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
Upon a charge filed by the Union 23 July 1984
and amended 5 September 1984, the General Coun-
sel of the National Labor Relations Board issued a
complaint 6 September 1984 against the Company,
alleging that it has violated Section 8(a)(5) and (1)
of the National Labor Relations Act.
The complaint alleges that on 14 June 1984, fol-
lowing a Board election in Case 39-RC-450, the
Union was certified as the exclusive collective-bar-
gaining representative of the Company's employees
in the unit found appropriate. (Official notice is
taken of the "record" in the representation pro-
ceeding as defined in the Board's Rules and Regu-
lations, Secs. 102.68 and 102.69(g), amended Sept.
9, 1981, 46 Fed.Reg. 45922 (1981); Frontier Hotel,
265 NLRB 343 (1982).) The complaint further al-
leges that since 22 June 1984 the Company has re-
fused to bargain with the Union. On 15 September
1984 the Company filed its answer admitting in
part and denying in part the allegations in the com-
plaint, submitting affirmative defenses, and request-
ing that the complaint be dismissed in its entirety.
On 1 October 1984 the General Counsel filed a
Motion for Summary Judgment. On 3 October
1984 the Board issued an order transferring the
proceeding to the Board and a Notice to Show
Cause why the motion should not be granted. The
Company filed a response.
Ruling on Motion for Summary Judgment
The Company's answer admits its refusal to bar-
gain ; but raises certain affirmative defenses. The
Company contends that it is not the successor to
the previous owner, New London Convalescent
Home, Inc. (New London), in whose name the
Board's Decision and Certification of Representa-
tive issued.' The Company also contends that if it
is a successor, the Union's certification is invalid
because the unit is inappropriate and the Union en-
gaged in objectionable conduct during the election
campaign Further, the Company asserts that since
the election the Union has engaged in egregious
misconduct which warrants revocation of its certi-
fication. Finally, the Company argues that its refus-
I Not included in bound volumes
al to bargain did not violate Section 8(a)(5) because
the Union's postcertification change in national af-
filiation was invalid under the standards set forth in
Amoco Production Co., 262 NLRB 1240 (1982)
The General Counsel contends that the Compa-
ny has admitted in its answer sufficient facts to es-
tablish that it is a successor to New London and
that the Company's "pro forma" denial raises no
material issues of fact warranting a hearing. The
General Counsel further argues that the Company's
defense that the Certification of Representative is
invalid similarly raises no material issue of fact, but
merely seeks to relitigate issues litigated and decid-
ed in the prior representation proceeding. In this
regard, the General Counsel asserts that the Com-
pany has failed to allege that it has any newly dis-
covered or previously unavailable evidence.
The record, including the record in Case 39-
RC-450, reveals that an election was held 16
August 1983 pursuant to a Stipulated Election
Agreement. The tally of ballots shows that of ap-
proximately 66 eligible voters, 42 cast valid ballots
for and 17 against the Union; there was 1 chal-
lenged ballot, an insufficient number to affect the
results of the election. After conducting a hearing
on New London's objections, the hearing officer
on 5 December 1983 issued his report recommend-
ing that the objections be overruled and denying
the Company's motion to reopen the record. New
London and the Company filed separate exceptions
to the recommendation. On 14 June 1984 the Board
adopted the hearing officer's recommendations,
denied the Company's motion to intervene, and
certified the Union as the exclusive bargaining rep-
resentative of the employees in the stipulated unit.
By mailgram on 22 June 1984 the Union request-
ed the Company to bargain collectively with it
concerning the wages, hours, and other terms and
conditions of employment of the unit employees.
Since 22 June 1984 the Company has failed and re-
fused to bargain collectively with the Union.
With respect to the Company's contention that it
is not a successor to New London, the Company's
answer reveals that up until 22 March 1984 New
London operated a nursing home at the facility at
issue here providing inpatient medical and profes-
sional services to geriatric patients, and that on 22
March 1984 the Company purchased the assets,
property, and business of New London and since
that date has operated the nursing home providing
inpatient medical and professional services. The
Company also admits that since 22 March 1984 it
has been engaged in the same business operations
as New London at the same location and "has, as a
majority of its employees, individuals who were
previously employees of' New London.
274 NLRB No. 204
NEW LONDON CONVALESCENT HOME
The Board's traditional test for successorship
status, affirmed by the Supreme Court in NLRB v.
Burns Security Services, 406 U.S. 272 (1972), is
whether there is a continuity in the employing en-
terprise We find that the Company has admitted
facts sufficient to show substantial continuity in this
case. Thus the Company admits that (1) it pur-
chased the property and business of New London;
(2) it has continued to operate the same business at
the same location, (3) it has provided the same
services without any interruption; and (4) a majori-
ty of its employees were previously employed by
New London. Accordingly, we conclude that the
Company is a successor to New London and there-
fore had a duty to recognize and bargain with the
certified collective-bargaining representative of its
employees on and since 14 June 1984.2
It is well settled that in the absence of newly dis-
covered and 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 that were or could have been
litigated in a prior representation proceeding. See
Pittsburgh Glass Co. v. NLRB, 313 U.S. 146, 162
(1941); Secs. 102.67(f) and 102.69(c) of the Board's
Rules and Regulations
The issues raised by the Company regarding the
unit scope and alleged objectionable conduct were
or could have been litigated in the prior representa-
tion proceeding. The Company 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 representa-
tion proceeding.
Further we find no merit in the Company's con-
tention that the Union has engaged in egregious
misconduct sufficient to warrant revocation of its
certification and relieve the Company of any obli-
gation to bargain with the Union In addition, we
2 See Canterbury Villa Inc, 271 NLRB 144 (1984)
1443
find no material issue raised by the Company's as-
sertion that the alleged misconduct, the change in
ownership, and alleged employee turnover consti-
tute "unusual circumstances" sufficient to over-
come the presumption of the Union's continued
majority status. Accordingly, as to the aforemen-
tioned contentions, we find that the Company has
not raised any issue that is properly litigable in this
unfair labor practice proceeding.3
We find, however, that the Company's answer
raises material issues with respect to the Union's
disaffiliation from the Retail, Wholesale and De-
partment Store Union and its affiliation with the
National Union of Hospital and Health Care Em-
ployees.4 The Company's allegation that bargaining
unit members neither were notified of, nor given an
opportunity to vote on, the Union's reaffiliation
raises issues of fact and law under Amoco Produc-
tion Co., 262 NLRB 1240 (1982). Accordingly, we
shall order a hearing limited to the issue of wheth-
er the Union's reaffiliation after the certification
comported with the due process standards set forth
in Amoco, and therefore whether the Company was
obligated to bargain with the reaffiliated Union.
ORDER
It is ordered that this proceeding is remanded to
the officer in charge for Subregion 39 for the
pupose of arranging and giving notice of a hearing
before an administrative law judge, at which hear-
ing the validity of the Union's affiliation with the
National Union of Hospital and Health Care Em-
ployees shall be determined under the standards set
forth in Amoco Production Co, 262 NLRB 1240'
(1982). '
' See Brooks v NLRB, 348 U S 96 (1954)
4 Chairman Dotson did not participate in the underlying representation
proceeding but agrees that a hearing is required on the disaffihaiign and
affiliation issues Contrary to his colleagues, however, the Chairman
would include for hearing the issues raised as to the Union's purported
loss of majority status and alleged misconduct as well as the appropriate-
ness of the unit stipulated to by the former Employer herein and the
successorship question