NHE/Michigan, Inc.

National Labor Relations Board - Board Decisions

Jul 30, 1975

219 N.L.R.B. 833 (N.L.R.B. 1975)

NHE LANSING 833
NHE/Michigan, Inc., d/b/a NHE Lansing and Michi-
gan Council #55, American Federation of State,
County and Municipal Employees , AFL-CIO. Case
7-CA- 11811
July 30, 1975
DECISION AND ORDER
By CHAIRMAN MURPHY AND MEMBERS JENKINS AND
KENNEDY
Upon a charge filed on February 25, 1975, by
Michigan Council #55, American Federation of
State, County and Municipal Employees, AFL-CIO,
herein called the Union, and duly served on NHE/
Michigan, Inc., d/b/a NHE Lansing, herein called
the Respondent, the General Counsel of the National
Labor Relations Board, by the Regional Director for
Region 7, issued a complaint on March 10, 1975,
against Respondent, alleging that Respondent had
engaged in and was engaging in unfair labor prac-
tices affecting commerce within the meaning of Sec-
tion 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 be-
fore 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 October 25, 1974,
following a Board election in Case 7-RC-12300 the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate;' and that, commenc-
ing on or about October 29, 1974, and more particu-
larly on December 2, 1974, and at all times thereaf-
ter, 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 21, 1975, Respondent filed its answer to the
complaint admitting in part, and denying in part, the
allegations in the complaint.
On May 14, 1975, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment. Subsequently, on May 22, 1975, the Board
issued an order transferring the proceeding to the
Board and a Notice To Show Cause why the General
'Official notice is taken of the record in the representation proceeding.
Case 7-RC-12300, 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,
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., 1957);
Follett Corp., 164 NLRB 378 (1967), enfd . 397 F.2d 91 (C.A. 7, 1968), Sec.
9(d) of the NLRA.
Counsel's Motion for Summary Judgment should not
be granted. Respondent did not file a response to
Notice To Show Cause.
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 denies
the majority representative status of the Union pri-
marily because of its objections to the election.
Counsel for the General Counsel contends that Re-
spondent seeks to test in this unfair labor practice
proceeding the Union's certification by relitigating
representation case issues and that those issues may
not be litigated here.
Our review of the record including that of the rep-
resentation case reveals that on April 19, 1974, pur-
suant to a Stipulation for Certification Upon Con-
sent Election, an election was held. The tally of
ballots showed 32 votes cast for the Union, 30
against, and 1 challenged ballot.
Respondent filed timely objections alleging, in
substance, that the Union made threats and made
misrepresentations concerning fines and assessments,
increases in dues, and ownership of the insurance
company which provided employee coverage; the
Board agent at the polls erred in permitting an intox-
icated employee to vote; the union agent during the
election engaged in election campaigning in the area
outside the polling place; the Regional Office erred
in not permitting a hospitalized employee to vote and
erred in accepting the Union's showing of interest
secured with the waiver of initiation fees, the Union
violated Respondent's personnel policies and created
the impression Respondent supported union activi-
ties ; the Union told employees Respondent was a
liar; and it improperly influenced employees by pay-
ing their election observer an excessive amount of
money.
After investigation, the Regional Director, on May
1, 1974, issued his Report on Objections to Election,
Order and Notice of Hearing in which he concluded
that the objections in major part raised issues of sub-
stantial and material facts, requiring credibility reso-
lutions, and therefore ordered a hearing. No excep-
tions were filed to the report and order.
After the hearing, the Hearing Officer issued on
June 20, 1974, his Report and Recommendations on
Objections in which- he concluded the Respondent's
objections did not raise any material substantial is-
219 NLRB No. 152
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sues which impaired employees' free choice in the
election and recommended that all objections be ov-
erruled and the appropriate certification issue. Re-
spondent then filed exceptions with the Board to the
Hearing Officer's Report and Recommendations on
Objections in which it basically reiterated its objec-
tions.
On October 25, 1974, a Decision and Certification
of Representative issued in which the Board, after
considering the objections, the Hearing Officer's Re-
port, and the exceptions and briefs, adopted the
Hearing Officer's findings and recommendations and
certified the Union as the exclusive bargaining repre-
sentative of the employees in the appropriate unit.
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 reliti-
gate issues which were or could have been litigated in
a prior representation proceeding.'
All issues raised by the Respondent in this pro-
ceeding were or could have been litigated in the prior
representation proceeding, and the Respondent does
not offer to adduce at a hearing any newly discov-
ered or previously unavailable evidence, nor does it
allege that any special circumstances exist herein
which would require the Board to reexamine the de-
cision made in the representation proceeding. We
therefore find that the 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 THE RESPONDENT
NHE/Michigan, Inc., d/b/a NHE Lansing, is a
Michigan corporation engaged in the business of
providing nursing care at its facility located at 1313
Mary Avenue, Lansing, Michigan; the only facility
2 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)
3 In its answer to the complaint Respondent states it is without knowledge
concerning the allegations that the Union requested bargaining by letters
dated October 29, 1974, and February 18, 1975 Respondent further denies
a refusal to bargain since October 29, 1974, and December 2, 1974. At-
tached as an exhibit to the complaint is a copy of the February 18, 1975,
letter from the Union requesting bargaining and a notation that a copy was
also sent to Respondent 's counsel . Appended to the Motion for Summary
Judgment is a letter of March 4 , 1975, in which Respondent 's counsel writes
to the Board agent clearly stating Respondent would not commence bar-
gaining with or recognize the Union. This letter is signed by Respondent's
involved in this proceeding. During the calendar year
ending December 31, 1974, a representative period,
Respondent, in the course and conduct of its busi-
ness operations, had revenues in excess of $100,000
and purchased and received goods and materials val-
ued in excess of $5,000 which were shipped to its
Lansing facility directly from points outside the State
of Michigan.
We find, on the basis of the foregoing, that Re-
spondent is, and has been at all times material here-
in, 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 juris-
diction herein.
II. THE LABOR ORGANIZATION INVOLVED
Michigan Council #55, American Federation of
State, County and Municipal Employees, AFL-CIO,
is a labor organization within the meaning of Section
2(5) of the Act.
Ill. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of the Respondent con-
stitute a unit appropriate for collective -bargaining
purposes within the meaning of Section 9 (b) of the
Act:
All full-time and regular part-time employees
employed by the Employer at its 1313 Mary Av-
enue , Lansing, Michigan , facility, including
nurses aides , dietary , housekeeping, mainte-
nance , and laundry employees; but excluding li-
censed practical nurses , office clerical employ-
ees, registered nurses , guards and supervisors as
defined in the Act.
2. The certification
On April 19, 1974, 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 7 designated the Union as their
counsel , the same person who filed the answer to the complaint Under
these circumstances, we view the denial of the February 18, 1975, request to
bargain as being frivolous and the filing of the charge herein on February
25, 1975, as a renewal of the request , as it was clearly an expression to the
Respondent that the Union desired to act as bargaining representative in
collective bargaining with Respondent . We find any other requests to bar-
gain would have been futile in light of Respondent 's uncontroverted letter
of March 4, 1975, which, we find, establishes a refusal to bargain as of that
date . Sewanee Coal Operators Association, 167 NLRB 172 (1967).
NHE LANSING 835
representative for the purpose of collective bargain-
ing with the Respondent . The Union was certified as
the collective -bargaining representative of the em-
ployees in said unit on October 25, 1974 , 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 October 29 , 1974, and at
all times thereafter , including February 18, 1975, the
Union has requested the Respondent to bargain col-
lectively with it as the exclusive collective-bargaining
representative of all the employees in the above-de-
scribed unit . Commencing on or about March 4,
1975, and continuing at all times thereafter to date,
the Respondent has refused , and continues to refuse,
to recognize and bargain with the Union as the ex-
clusive representative for collective bargaining of all
employees in said unit.
Accordingly , we find that the Respondent has,
since March 4, 1975, 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 that , by such refusal, Respondent
has engaged in and is engaging in unfair labor prac-
tices 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, inti-
mate , 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 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 ap-
propriate unit will be accorded the services of their
selected bargaining agent for the period provided
by law, we shall construe the initial period of certifi-
cation as beginning on the date Respondent com-
mences to bargain in good faith with the Union as
the recognized bargaining representative in the ap-
propriate 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. NHE/Michigan, Inc., d/b/a NHE Lansing, is
an employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. Michigan Council #55, American Federation
of State , County and Municipal Employees, AFL-
CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. All full-time and regular part-time employees
employed by the Employer at its 1313 Mary Avenue,
Lansing, Michigan , facility, including nurses aides,
dietary , housekeeping , maintenance , and laundry
employees ; but excluding licensed practical nurses,
office clerical employees , registered nurses , guards
and supervisors as defined in the Act, constitute a
unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the
Act.
4. Since October 25, 1974, 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 March 4, 1975, 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 , Respondent has en-
gaged 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, 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 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.
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that Respondent NHE/
Michigan, Inc., d/b/a NHE Lansing, Lansing, Mich-
igan, 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 Michigan Council #55,
American Federation of State, County and Munici-
pal Employees, AFL-CIO, as the exclusive bargain-
ing representative of its employees in the following
appropriate unit:
All full-time and regular part-time employees
employed by the Employer at its 1313 Mary Av-
enue, Lansing, Michigan, facility, including
nurses aides, dietary, housekeeping, mainte-
nance, and laundry employees; but excluding li-
censed practical nurses, office clerical employ-
ees, registered nurses, 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 Lansing, Michigan, facility copies of
the attached notice marked "Appendix." a Copies of
said notice, on forms provided by the Regional Di-
rector for Region 7, after being duly signed by
Respondent's representative, shall be posted by Re-
spondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where no-
tices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered
by any other material.
(c) Notify the Regional Director for Region 7, 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 "Post 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 Mich-
igan Council #55, American Federation of
State, County and Municipal Employees, AFL-
CIO, as the exclusive representative of the em-
ployees 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 represen-
tative of all employees in the bargaining unit de-
scribed below, with respect to rates of pay, wag-
es, 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 employees
employed by the Employer at its 1313 Mary
Avenue, Lansing, Michigan, facility, includ-
ing nurses aides, dietary, housekeeping, main-
tenance, and laundry employees; but exclud-
ing licensed practical nurses, office clerical
employees, registered nurses, guards and su-
pervisors as defined in the Act.
NHE/MICHIGAN, INC., d/b/a LANSING