Ohio Masonic Home

National Labor Relations Board - Board Decisions

Dec 7, 1977

233 N.L.R.B. 1004 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ohio Masonic Home and National Union of Hospital
and Health Care Employees, Local 1199H,
RWDSU, AFLCIO. Case 9-CA-11355
December 7, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
Upon a charge filed on May 11, 1977, by National
Union of Hospital and Health Care Employees,
Local 1199H, RWDSU, AFL-CIO, herein called the
Union, and duly served on Ohio Masonic Home,
herein called Respondent, the General Counsel of
the National Labor Relations Board, by the Regional
Director for Region 9, issued a complaint and notice
of hearing on June 7, 1977, against Respondent,
alleging that Respondent had engaged in and was
engaging in unfair labor practices affecting com-
merce 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 Adminis-
trative 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 April 25, 1977,
following a Board election in Case 9-RM-762 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 May 4, 1977, 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 June 27, 1977, Respondent filed its answer to the
complaint admitting in part, and denying in part, the
allegations in the complaint.
On July 18, 1977, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment. Subsequently, on July 26, 1977, 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. Respondent thereafter filed a response to
Notice To Show Cause.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
I Official notice is taken of the record in the representation proceeding,
Case 9-RM-762, as the term "record" is defined in Secs. 102.68 and
102.69(g) of the Board's Rules and Regulations, Senes 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
233 NLRB No. 148
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
Following the election in Case 9-RM-762, 2 Re-
spondent filed objections to the election with the
Regional Director. After the Regional Director filed
his Report on Objections to the Election in which he
recommended to the Board that all of Respondent's
objections be overruled, Respondent filed exceptions
to the Regional Director's report with the Board. The
Board adopted the Regional Director's findings and
recommendations and issued a certification of
representative. Respondent has subsequently refused
to bargain with the Union as the certified representa-
tive of its employees, and its refusal has given rise to
the issuance of the complaint in the present case.
In its answer to the complaint and also its response
to the Notice To Show Cause, Respondent asserts
that the bargaining unit in which the election was
held, as described in the certification of representa-
tive issued by the Board in Case 9-RM-762, is not an
appropriate bargaining unit because many of the job
titles set forth in such certification are no longer
utilized and other current job classifications have
been omitted from the unit description.
The record shows that the parties agreed on
November 2, 1976, to the bargaining unit description
set forth in the Stipulation for Certification Upon
Consent Election, the RM petition, and the official
election notice. Subsequently, on November 9, 1976,
Respondent by letter advised the Board's Regional
Office that certain job classification titles had been
revised. Respondent expressed its hope that the
Union would "agree to amend the Stipulation
Agreement to eliminate any confusion as to the
classifications of employees comprising the bargain-
ing unit." However, the Union was not agreeable to
the changes requested by Respondent. Therefore, in
the absence of a new agreement by the parties, the
Regional Director conducted the election in the unit
described in the consent election stipulation and,
subsequently, the Union was certified in this same
unit. Although Respondent filed objections to the
election, none of its objections relates to the matter
of the bargaining unit classifications.
In our judgment, the Regional Director acted
properly in deciding to go ahead with the election in
the unit described in the consent election agreement.
(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.
2 Not reported in volumes of Board decisions.
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OHIO MASONIC HOME
The Regional Director had no authority to reform
the unit in the absence of such agreement by the
parties. The Regional Director's only other available
option would have been to decline to proceed with
the election and this course of action would be
warranted only in a most extreme situation. Here, a
comparison of the job description in the agreed-upon
voting unit with the job description changes pro-
posed by Respondent shows that the latter are not so
substantially different from the former as to cause
confusion as to the classifications of employees
comprising the bargaining unit. Moreover, we note
that, although Respondent raised the unit classifica-
tion issue with the Regional Office prior to the
election, the matter was not raised or even referred to
in its objections to the election. Thus, Respondent
cannot legitimately complain about the Regional
Director's failure to resolve this issue when the
matter was not properly placed before the Regional
Director for investigation and determination.3
Respondent also argues that it was entitled to a
hearing because it did not have "an opportunity to
demonstrate the inadequacy of the representation
proceedings" and because the Region's handling of
the job description issue amounted to a denial of due
process. It has been established that parties do not
have an absolute right to a hearing on objections to
an election. It is only when the moving party presents
a prima facie showing of "substantial and material
issues" which would warrant setting aside the
election that he is entitled to an evidentiary hearing. 4
In our judgment, no such showing has been made
here.
With respect to the matters raised in Respondent's
objections, these objections allege (I) that the Union
issued a newsletter arousing racial and ethnic
prejudice; (2) that the preparation and use of a work
release schedule for voting caused confusion and ill
will toward Respondent, and may have caused
employee disenfranchisement; (3) that the Union's
use of a nonemployee union member who had legal
proceedings pending against her, relative to a
previous altercation with an employee of Respondent
as an election observer, interfered with the election's
laboratory conditions; (4) inadequate protection of
the ballot box between voting periods although it was
in the custody of the Board agent; (5) that union
agents coerced and intimidated bargaining unit
personnel; and (6) that at a meeting held by the
Union an unidentified person representing himself as
3 See Rules and Regulations of the Board, Sec. 102.69(a).
4 Farah Manuacturing Company, Inc., 203 NLRB 543 (1973); Modine
Manufacrunring Company, 203 NLRB 527 (1973): Heavenly Valley Ski Area, a
California Corporation, and Heavenly Valley, a Partnership, 215 NLRB 734
(1974); Williams Energy Comrpan,. 218 NLRB 1080 (1975); Allied Meat
Company, 220 NLRB 27(1975).
5 There was no discussion of the evidence concerning Objection 4
because Respondent's request to withdraw that objection was approved.
an agent of the National Labor Relations Board
advised employees of tactics available to discredit
Respondent. Respondent later withdrew its fourth
objection with the approval of the Regional Director.
In his Report on Objections, the Regional Director
considered each of Respondent's objections, dis-
cussed the evidence with respect thereto which had
been uncovered as a result of his investigation,5 and,
with respect to each of the pending objections, gave
specific reasons why he believed that the particular
objection should be overruled. However, Respondent
contends that the Regional Director's investigation
was totally inaccurate and that Respondent's wit-
nesses were virtually ignored during the investigation
process. Obviously, such a charge is of a serious
nature because it draws in question the impartiality
of Board representatives. However, even a charge as
serious as this requires some documentation or
substantiation to justify an investigation into the
matter. Respondent has not been specific as to the
identity of witnesses it claims should have been
called to testify, the evidence that would have been
adduced, or how this evidence would have contra-
dicted the findings made by the Regional Director in
his report. Accordingly, we are constrained to treat
Respondent's charge of a lack of impartiality on the
part of the Regional Office as an unsubstantiated
allegation which does not warrant further action.
Respondent also raises an issue with respect to its
objection to the manner in which employees were
released to vote. At the time the stipulation was
executed, it was agreed that Respondent would
prepare a voter release schedule for use during the
election, with the additional understanding that
charge nurses might be required to make some
adjustments for the release of individual voters to
ensure constant and adequate patient care. At the
preelection conference, it was discovered that Re-
spondent had not prepared the schedule but instead
planned to allow the charge nurses to release the
voters, an arrangement to which the Union would
not agree. The parties then agreed that the schedule
would be prepared by Respondent, that the Union
would inspect the schedule before the election, and
that the Board agent would announce over the
facility's speaker system when the polls were open.6
When errors were discovered in the schedule after
the election had begun, additional announcements
I The announcement read: "The polls in the National Labor Relations
Board election are now open. Employees who wish to vote may do so at
times indicated on schedules posted at all nursing station and time clocks, or
employees may vote during their off duty hours whenever the polls are
open.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were made over the speaker system to assure full
notice of when employees could vote.T Respondent
then contended that confusion and ill will resulted
toward it because of the poor voting scheduling
which it helped formulate, to which it agreed, and
which it executed. On this basis, it seeks to void the
election although no evidence was presented that any
employee did not vote because of poor scheduling.
The Regional Director found that, while voting
conditions were different in some respects from what
the employees had envisioned, the finding of non-
presence of the requisite laboratory conditions did
not automatically obtain. Further, the Regional
Director found that because of the announcements
the employees were adequately notified of the time of
the election, and there was not a sufficient irregulari-
ty of election procedures to justify setting aside the
election. Hence, the Regional Director recommended
overruling this objection and we agreed with his
recommendation when it was initially before us, and
we do now.
All issues raised by Respondent in this proceeding
were or could have been litigated in the prior
representation proceeding, and Respondent does not
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
I. THE BUSINESS OF RESPONDENT
Ohio Masonic Home, an Ohio corporation, at all
times material herein has operated a proprietary
nursing and convalescent home in the State of Ohio.
The principal office and place of business of Ohio
Masonic Home is at 2655 West National Road,
Springfield, Ohio. During the past 12 months,
Respondent, in the course and conduct of its
business operations, received gross revenues in excess
of $100,000. During the same period, Respondent
purchased and received goods and materials valued
in excess of $50,000 from firms located in the State of
Ohio, each of whom, in turn, purchased and received
said goods and materials at their respective places of
7 The same announcement was made as before with the additional
language that "Employees whose names do not appear on the list may vote
at any time there is adequate coverage."
business in Ohio directly from enterprises located
outside the State of Ohio.
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
National Union of Hospital and Health Care
Employees, Local 1199H, RWDSU, 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 full-time and regular part-time service and
maintenance employees employed at Respon-
dent's Springfield, Ohio, location, including nurs-
es aides, orderlies, cooks, kitchen helpers, housek-
eepers, groundskeepers, custodial employees,
dietary aides, laundry workers, powerhouse em-
ployees, maintenancemen, drivers, occupational
therapy aides, pharmacy clerks and physical
therapy aides and orderlies; but excluding all
office clerical employees, registered nurses, li-
censed practical nurses, occupational therapists,
physical therapists, pharmacists, beauticians, tele-
phone operators, professional employees, guards
and supervisors as defined in the Act, and all
other employees.
2. The certification
On December 8, 1976, 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 9, 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 April 25, 1977, and the Union
continues to be such exclusive representative within
the meaning of Section 9(a) of the Act.
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OHIO MASONIC HOME
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about April 28, 1977, 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 May 4, 1977, 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
May 4, 1977, 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 1, 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.
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. Ohio Masonic Home is an employer engaged
in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. National Union of Hospital and Health Care
Employees, Local 1199H, RWDSU, AFL-CIO, is a
labor organization within the meaning of Section 2(5)
of the Act.
3. All full-time and regular part-time service and
maintenance employees employed at Respondent's
Springfield, Ohio, location, including nurses aides,
orderlies, cooks, kitchen helpers, housekeepers,
groundskeepers, custodial employees, dietary aides,
laundry workers, powerhouse employees, mainte-
nance men, drivers, occupational therapy aides,
pharmacy clerks and physical therapy aides and
orderlies, but excluding all office clerical employees,
registered nurses, licensed practical nurses, occupa-
tional therapists, physical therapists, pharmacists,
beauticians, telephone operators, professional em-
ployees, guards, and supervisors as defined in the
Act, and all other employees, constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. Since April 25, 1977, 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 May 4, 1977, 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(aX5) 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 them in
Section 7 of the Act, and thereby has engaged in and
is engaging in unfair labor practices within the
meaning of Section 8(a)(l) 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,
1007
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ohio Masonic Home, Springfield, Ohio, 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 National Union of
Hospital and Health Care Employees, Local 1199H,
RWDSU, AFL-CIO, as the exclusive bargaining
representative of its employees in the following
appropriate unit:
All full-time and regular part-time service and
maintenance employees employed at Respon-
dent's Springfield, Ohio location, including nurses
aides, orderlies, cooks, kitchen helpers, housek-
eepers, groundskeepers, custodial employees,
dietary aides, laundry workers, powerhouse em-
ployees, maintenance men, drivers, occupational
therapy aides, pharmacy clerks and physical
therapy aides and orderlies, but excluding all
office clerical employees, registered nurses, li-
censed practical nurses, occupational therapists,
physical therapists, pharmacists, beauticians, tele-
phone operators, professional employees, guards
and supervisors as defined in the Act, and all
other employees.
(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 Springfield, Ohio, facility copies of
the attached notice marked "Appendix." 8 Copies of
said notice, on forms provided by the Regional
Director for Region 9, 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 thereaf-
ter, in conspicuous places, including all places where
notices 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 9, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
8 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
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 Na-
tional Union of Hospital and Health Care
Employees, Local 1199H, RWDSU, 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 full-time and regular part-time service
and maintenance employees employed at
Respondent's Springfield, Ohio location,
including nurses aides, orderlies, cooks,
kitchen helpers, housekeepers, groundskeep-
ers, custodial employees, dietary aides,
laundry workers, powerhouse employees,
maintenance men, drivers, occupational
therapy aides, pharmacy clerks and physical
therapy aides and orderlies, but excluding all
office clerical employees, registered nurses,
licensed practical nurses, occupational ther-
apists, pharmacists, beauticians, telephone
operators, professional employees, guards
and supervisors as defined in the Act, and all
other employees.
OHIO MASONIC HoME
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