Shalom Nursing Home

National Labor Relations Board - Board Decisions

Mar 15, 1979

241 N.L.R.B. 62 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
National Council of Young Israel d/b/a Shalom Nurs-
ing Home and Local 144, Hotel, Hospital, Nursing
Home and Allied Health Services Union, SEIU,
AFL-CIO. Cases 2-CA-15130 and 2 RC-17205'
March 15, 1979
DECISION, ORDER, AND DIRECTION
Upon a charge filed on September 6, 1977, by Lo-
cal 144, Hotel, Hospital, Nursing Home and Allied
Health Services Union SEIU, AFL-CIO, herein
called the Union, and duly served on the National
Council of Young Israel d/b/a Shalom Nursing
Home, herein called Respondent. the General Coun-
sel of the National Labor Relations Board, by the
Regional Director for Region 2, issued a complaint
on October 12, 1977, 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 National Labor Relations Act, as
amended. Copies of the charge, complaint, and notice
of hearing befbre 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 July 19, 1977,
following a Board election in Case 2 RC-17205, the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate; 2 and that, commencing
on or about September 1, 1977, and at all times there-
after, 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
October 24, 1977, Respondent filed its answer to the
complaint admitting in part, and denying in part, the
allegations in the complaint.
On November 18, 1977, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on November 25,
1977, the Board issued an order transferring the pro-
ceeding to the Board and a Notice To Show Cause
why the General Counsel's Motion for Summary
I he representation proceeding has been joined with the instant unfair
labor practice proceeding in order to determine the issues that have been
raised in both proceedings. Royv N li.otspeih Pubhlishing Co., 204 NI.RB 517
I1973).
Of()ficial notice is taken of the record in the representation proceeding,
Case 2 RC 17205, as the term "record" is defined in Secs. 102.68 and
10
2
h9(g) of the Board's Rules and Regulations Series 8, as amended. See
.7'1 El( trvririnm., Inc., 166 N.RB 938 (1967). enfd. 388 F.2d 683 (4th Cirt.
1968): (iicn Agie Beverage C(o., 167 NLRB 151 (1967). enfd. 415 F.2d 26
(5th Cir. 1969) Inrterrvpci (C . Penello, 269 I Supp. 573 (DC.Va.. 1967);
Filtt (Corp. 164 NI.RB 378 (1967). enfd. 397 F.2d 91 (7th Cir. 1968); Sec.
9(d) of the NLRA. as amended.
Judgment should not be granted. Respondent there-
after filed a response to Notice To Show Cause.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
Pursuant to a Stipulation for Certification Upon
Consent Election, executed by the parties and ap-
proved by the Regional Director for Region 2, on
February 19, 1976, an election by secret ballot was
conducted on April 7, 1976, under the direction and
supervision of the Regional Director. The tally was:
76 for and 43 against the Petitioner; there were 5
challenged ballots, a number insufficient to affect the
results. On April 12, 1976, the Employer filed timely
objections to the election. On May 14, 1976, the Re-
gional Director issued her Report on Objections and
Recommendations in which she recommended that
four of the Employer's six objections be overruled,
and that the Board hold a hearing on the first two
objections in order to resolve issues of fact and credi-
bility raised therein. The Board, on July 27, 1976,
issued its Decision and Order adopting the Regional
Director's recommendations. Thereafter, a hearing
was held in Region 2 before Hearing Officer John J.
Dellaverson on August 24 and 25; September 20; De-
cember 7, 10, 15, and 22, 1976; and January 5, 1977.
Subsequently, the Hearing Officer issued his Report
on Objections on March 24, 1977, and the Employer,
on April 5, 1977, filed an exception to Objection 1.
The Petitioner filed no exceptions. On July 19, 1977,
the Board issued a Supplemental Decision' in which
the Board certified the Petitioner. The Board reversed
the Hearing Officer's recommendation that Objection
2, which alleged a violation of the Hollywood Ceram-
ics4 rule, be sustained and the election be set aside.
The Board held that despite the validity of Hollywood
Ceramics at the time the Hearing Officer issued his
report, Shopping Kart Food Market, Inc.,' had become
the applicable precedent when it issued April 8, 1977.
Chairman Fanning dissented on the basis that the Pe-
titioner had not filed any exceptions to the Hearing
Officer's recommendation that Objection 2 be sus-
tained, and because the alleged misrepresentations
were violative of Hollywood Ceramics. Members Jen-
kins and Truesdale agree that a review of the record
was unwarranted in light of Petitioner's failure to ex-
cept, and agree with the Chairman that, in any event,
the Hearing Officer correctly applied the standards of
Hollywood Ceramics to the misrepresentation allega-
1230 NL.RB 980 (Chairman Fanning dissenting).
4 Holh wood Ceramics C'ompany, Inc.. 140 NLRB 221 (1962).
5228 NLRB 1311 (Chairman Fanning and Member Jenkins dissenting).
241 NLRB No. 9
62
SHALOM NURSING HOME
tions. See General Knit of California, Inc., 239 NLRB
619 (1978).
ORDER
It is hereby ordered that the Supplemental Deci-
sion and Order issued on July 19, 1977 be. and it
hereby is, vacated.
IT IS FURTHER ORDERED that the General Counsel's
Motion for Summary Judgment be, and it hereby is,
denied.
IT IS FURTHER ORDERED that the complaint herein
be, and it hereby is, dismissed in its entirety.
IT IS FURTHER ORDERED that the certification issued
to the Petitioner in Case 2-RC-17205 be, and it
hereby is, revoked, and that Case 2-RC-17205 be,
and it hereby is, remanded to the Regional Director
for Region 2 to conduct a new election.
[Direction of Second Election omitted from publi-
cation.]6
6 Excelsior footnote omitted from publication.]
MEMBERS PENELLO and MURPHY dissenting:
For the reasons set forth in our respective dissent-
ing opinions in General Knit.,' we believe that the
Shopping Kart decision' was properly applied in the
underlying representation proceeding so as to over-
rule the Employer's misrepresentation objection and
certify the Petitioner.9 Todlay, the General Knit major-
ity vacates that certification and thus confirms our
deep conviction that the Holly'wood Ccranic. rule op-
erates to delay and frustrate collective bargaining.
The employees voted for union representation al-
most 3 years ago. The time for directing an election is
past. We would order the Employer to bargain. Now.
'General Knit of California, Inc. 239 NI.RB 619(1978) Member Penello
also relies on his dissenting opinion in Blackman- hler Chemical Dision
Snaillo Corporation, 239 NLRB 637 (1978).
I Shopping Kart Food Market, Inc. 228 NLRB 1311 (1977)
9 230 NLRB 980 1977). The fact that the Petitioner had not excepted ito
the Hearing Officer's recommendation that the misrepresentation objection
be sustained under Hollywood Ceramics Company. Inc, 140 NLRB 221
(1962), was not fatal. The Board's authontN to act in the absence of an
exception is well established and has been repeatedly exercised in the past
See, e.g.. N. LR.B. v. WTVJ. Inc., 268 F.2d 346, 348 (5th ('ir 1959);
N.L.R.B. v. M L Townrend, 185 F.2d 378, 384 (9th Cir. 1950. cert. denied
341 U.S. 909; Otis Hospital, Inc.,. 219 NLRB 164(1975). Further,. the Board's
sua sponre action did not prejudice the Emplo)er's substantive rights. as it
had an opportunity to present its arguments in a motion for reconsideratlon
and did, in fact. do so.
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