Salvation Army Eventide Residence

National Labor Relations Board - Board Decisions

Sep 26, 1979

245 N.L.R.B. 370 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Salvation Army Eventide Residence and Nursing
and Convalescent Home Employees' Division of Lo-
cal 79, Service Employees International Union,
AFL-CIO. Case 7-CA-16281
September 26, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENE.I.O
Upon a charge filed on April 16, 1979, by Nursing
and Convalescent Home Employees' Division of Lo-
cal 79, Service Employees International Union,
AFL-CIO, herein called the Union, and duly served
on The Salvation Army Eventide Residence, herein
called Respondent, the General Counsel of the Na-
tional Labor Relations Board, by the Regional Direc-
tor for Region 7, issued a complaint on May 2, 1979,
against Respondent, alleging that Respondent had
engaged in and was engaging in unfair labor practices
affecting commerce within the meaning of Section
8(a)(5) and (1) and Section 2(6) and (7) of the Na-
tional Labor Relations Act, as amended. Copies of
the charge, complaint, and notice of hearing before
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 February 8, 1979,
following a Board election in Case 7 RC-14977, the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate;' and that, commencing
on or about April 2, 1979, 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
May 11, 1979, Respondent filed its answer to the
complaint admitting in part, and denying in part, the
allegations in the complaint. Specifically, Respondent
admitted, inter alia, that the Board certified the
Union as the exclusive bargaining representative on
February 8, 1979; that the Union requested bargain-
ing on and after February 22, 1979; and that Respon-
dent refused to bargain with the Union on and after
April 2, 1979. Respondent's answer denies that the
I Official notice is taken of the record in the representation proceeding.
Case 7-RC-14977, 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 Electrosystemr, Inc., 166 NLRB 938 (1967). enfd. 388 F.2d 683 (4th Cir.
1968); Golden Age Beverage Co., 167 NLRB 151 (1967). enfd. 415 F.2d 26
(5th Cir. 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va.. 1967);
Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir 1968); Sec.
9(d) of the NLRA, as amended.
Union is the properly designated exclusive bargaining
representative of the unit employees, and that its re-
fusal to bargain is for the sole reason that it doubts
the validity of the outstanding certification. Respon-
dent neither admitted nor denied certain other allega-
tions related to the Union's status as a labor organiza-
tion, that the certified unit is an appropriate unit, and
that a majority of the employees in the appropriate
unit selected the Union as their exclusive bargaining
representative in the September 7, 1978, election. Fi-
nally, Respondent denies the conclusionary allega-
tions that it acted unlawfully in refusing to recognize
and bargain with the Union.2
On June 19, 1979, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment. Subsequently, on June 27, 1979, 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 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
As indicated above, Respondent's answer admits in
part, and denies in part, the allegations of the com-
plaint. In response to the Notice To Show Cause, Re-
spondent contends that the distribution of literature
by the Union created the impression that the Board
was endorsing the Union, that Respondent's objec-
tion should have been sustained, and that a new elec-
tion should have been directed. The General Counsel
contends that all material factual issues are admitted
in Respondent's answer or have previously been de-
cided by the Board. We agree with the General Coun-
sel.
Our review of the record herein reveals that, pursu-
ant to a Stipulation for Certification Upon Consent
Election, Case 7-RC 14977, an election was held on
September 7, 1978, in the appropriate unit. The tally
was 32 for, and 25 against, the Union; there were 5
challenged ballots, an insufficient number to affect
the results of the election. On October 6. 1978. the
2 Respondent also included in its answer the following affirmative de-
fenses:
(1) Respondent is a nonprofit corporation, which does not engage In nor
affect interstate commerce within the scope of the Act;
(2) The factual matters alleged in the complaint do not constitute an un-
fair labor practice within the meaning of the Act;
(3) Respondent's gross revenues are below the standards established hv
the Board as requisite for it to exercise jurisdiction in this matter.
245 NLRB No. 31
370
SALVATION ARMY EVENTIDE RESII)ENCE
Regional Director issued his Report and Recommen-
dation on Objections and Notice of Hearing, in which
he recommended that the Employer's Objection 2 be
overruled and that a hearing be held on Objection .
On November 3, 1978, the Hearing Officer. Karen
Cordry, issued her Report and Recommendation on
Objections. Respondent filed exceptions to the Report
on Objections with the Board. On February 8, 1979,
the Board issued a Decision and Certification of Rep-
resentative.
On February 22, 1979, the Union requested Re-
spondent to bargain collectively with respect to rates
of pay, wages, hours of employment, and other terms
and conditions of employment. On April 2, 1979, Re-
spondent refused to recognize and bargain with the
Union as the exclusive collective-bargaining repre-
sentative of the employees in the certified bargaining
unit.
In response to a Motion for Summary Judgment,
an adverse party may not rest upon denials in its
pleadings, but must present specific facts which re-
quire a hearing.) Although Respondent has denied
certain allegations of the complaint, as described
above, it has not set forth specific facts showing that
there is a genuine issue for hearing.4 In these circum-
stances, we are satisfied that there are no material
facts in dispute which require a hearing.
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 relitigate
issues which were or could have been litigated in a
prior representation proceeding.s
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:
Peerless of Amenca, Inc., 229 NLRB 183 (1977).
'We find no ment in Respondent's affirmative defenses. We note that
Respondent did not contestjunsdiction in the representation case and that it
entered into a Stipulation for Certification Upon Consent Election pursuant
to which the September 7. 1978, election was held. See Jack L. Willham.,
D.D.S. db/a Empire Denral Co, 211 NLRB 860 (1974).
t See Pittsburgh Plate Glass Co. v. N.I.R B. 313 U.S. 146. 162 (1941)
Rules and Regulations of the Board, Secs. 102.67 ( and 102.6 9(c)
FINI)INGS F() FA(CI
1. IHiE BUSINESS ()F RESPONI)I-NI
Respondent is. and has been at all times material
herein, a corporation duly organized under, and exist-
ing by virtue of, the laws of the State of New York.
At all times material herein. Respondent has main-
tained its principal office and place of business at
2643 Park Avenue, Detroit, Michigan, herein called
the Detroit place of business. Respondent provides
services for the aged. including independent living ac-
commodations and nursing care. Respondent's place
of business located at Detroit, Michigan, is the only
facility involved in this proceeding. During the fiscal
year ending September 31. 1978. which period is rep-
resentative of its operations during all times material
hereto, Respondent received gross revenues in excess
of $200,000 from the operation of its Detroit place of
business. During the fiscal year ending September 31.
1978, Respondent, in the course and conduct of its
business operations. purchased and caused to be
transported to its Detroit place of business. natural
gas valued in excess of $1,000, which gas wias received
directly from the Michigan Consolidated Gas Conm-
pany, located in the State of Michigan, which had
received the said gas delivered to Respondent directly
from points located outside the State of Michigan.
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 2(6) and (7) of the Act, and that it will
effectuate the policies of the Act to assert jurisdiction
herein.
11. TIlE LABOR ORGiANIZATION INVOIVED
Nursing and Convalescent Home Employees' Divi-
sion of Local 79, Service Employees International
Union, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRAC(TICES
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 nurses aides,
orderlies, dietary employees, housekeeping em-
ployees, laundry employees, ward clerks, recep-
tionist. maintenance employees and elevator op-
371
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
erators employed by the Employer at its nursing
home and home for the aged located at 2643
Park Avenue, Detroit, Michigan; but excluding
all office employees, full-in employees, depart-
ments heads, assistant department head, assist-
ant food service director, dietary supervisor, of-
fice manager, assistant office manager,
confidential employees, guards, and supervisors
as defined in the Act.
2. The certification
On September 7, 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 7, 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 February 8, 1979, and the Union contin-
ues to be such exclusive representative within the
meaning of Section 9(a) of the Act.
B. The Request To Bargain and Respondent's ReJiusal
Commencing on or about February 22, 1979, 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 April 2, 1979, and continuing at all times
thereafter to date, Respondent has refused, and con-
tinues 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
April 2, 1979, 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 en-
gaged 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 L.ABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section
II, above, occurring in connection with its operations
described in section 1, 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. I HE REMEI)Y
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the mean-
ing of Section 8(a)(5) and () 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 appropriate
unit. See Mar-Jac Poultro' Company, Inc., 136 NLRB
785 (1962); Commerce Company d/b/a Lamar Hotel,
140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th
Cir. 1964), cert. denied 379 U.S. 817; Burnett Con-
struction Company, 149 NLRB 1419, 1421 (1964),
enfd. 350 F.2d 57 (10th Cir. 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONC(.USIONS 01 LAW
I. The Salvation Army Eventide Residence is an
employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. Nursing and Convalescent Home Employees'
Division of Local 79, Service Employees Interna-
tional Union, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. All full-time and regular part-time nurses aides,
orderlies, dietary employees, housekeeping employ-
ees, laundry employees, ward clerks, receptionist,
maintenance employees and elevator operators em-
ployed by the Employer at its nursing home and
home for the aged located at 2643 Park Avenue, De-
troit, Michigan; but excluding all office employees,
full-in employees, department heads, assistant depart-
ment head, assistant food service director, dietary su-
pervisor, office manager, assistant office manager,
confidential employees, guards, and supervisors as de-
fined in the Act, constitute a unit appropriate for the
purposes of collective bargaining within the meaning
of Section 9(b) of the Act.
4. Since February 8, 1979. 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.
372
SALVATION ARMY EVENTIDE RESIDENCE
5. By refusing on or about April 2, 1979, 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 them in Sec-
tion 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 Rela-
tions Board hereby orders that the Respondent, The
Salvation Army Eventide Residence, Detroit, Michi-
gan, its officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and con-
ditions of employment with Nursing and Convales-
cent Home Employees' Division of Local 79, Service
Employees International Union, AFL-CIO, as the
exclusive bargaining representative of its employees
in the following appropriate unit:
All full-time and regular part-time nurses aides,
orderlies, dietary employees, housekeeping em-
ployees, laundry employees, ward clerks, recep-
tionist, maintenance employees and elevator op-
erators employed by the Employer at its nursing
home and home for the aged located at 2643
Park Avenue, Detroit, Michigan; but excluding
all office employees, full-in employees, depart-
ment heads, assistant department head, assistant
food service director, dietary supervisor, office
manager, assistant office manager, confidential
employees, 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 understand-
ing is reached, embody such understanding in a
signed agreement.
(b) Post at its place of business at 2643 Park Ave-
nue, Detroit, Michigan copies of the attached notice
marked "Appendix." 6 Copies of said notice, on forms
provided by the Regional Director for Region 7. 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 7, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
6In the event that this Order is enforced by a judgment ofa 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 Nurs-
ing and Convalescent Home Employees Division
of Local 79, Service Employees International
Union, AFL-CIO, as the exclusive representa-
tive of the employees in the bargaining unit de-
scribed 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 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 full-time and regular part-time nurses
aides, orderlies, dietary employees, housekeep-
ing employees, laundry employees, ward
clerks, receptionist, maintenance employees
373
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and elevator operators employed by the Em-
ployer at its nursing home and home for the
aged located at 2643 Park Avenue, Detroit,
Michigan; but excluding all office employees,
fill-in employees, department heads, assistant
department head, assistant food service direc-
tor, dietary supervisor, office manager, assist-
ant office manager, confidential employees,
guards, and supervisors as defined in the Act.
THE SALVATION ARMY EVENTIDE RESI-
DENCE
174