Sunshine-50 Care Centers, Inc.

National Labor Relations Board - Board Decisions

Sep 12, 1975

220 N.L.R.B. 256 (N.L.R.B. 1975)

256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sunshine-50 Care Centers, Inc., Hilton Convalescent
Home Division and Nursing and Convalescent
Home Employees Division of Local 79, Service Em-
ployees International Union, AFL-CIO. Case
7-CA-11947
September 12, 1975
DECISION AND ORDER
By CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
Upon a charge filed on April 22, 1975, 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 Sunshine-50 Care Centers, Inc., Hilton Convales-
cent Home Division, herein called the Respondent,
the General Counsel of the National Labor Relations
Board, by the Regional Director for Region 7, issued
a complaint on May 16, 1975, 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 Rela-
tions Act, as amended. Copies of the charge, com-
plaint, and notice of hearing before an Administra-
tive 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 March 25, 1975,
following a Board election in Case 7-RC-12548, the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate; l and that, commenc-
ipg on or about April 17, 1975, 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
May 28, 1975, Respondent filed its answer to the
complaint admitting in part, and denying in part, the
allegations in the complaint.
On June 26, 1975, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment. Subsequently, on July 2, 1975, the Board
issued an order transferring the proceeding to the
Official notice is taken of the record in the representation proceeding,
Case 7-RC-12548, 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., 1967),
Follett Corp, 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968), Sec.
9(d) of the NLRA.
Board and a Notice To Show Cause why the General
Counsel's Motion for Summary Judgment should not
be granted. Respondent thereafter failed to file a re-
sponse 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 admits
the operative facts set forth in the complaint and de-
nies only the conclusionary averments while affirma-
tively contending simply that the Union was not
properly certified and thus did not represent a major-
ity of the employees.
Review of the record herein, including the record
in Case 7-RC-12548, reveals that an election con-
ducted pursuant to a Stipulation for Certification
Upon Consent Election resulted in a vote of 24 to 13
in favor of the Union with 1 ballot challenged. Re-
spondent filed timely objections to conduct affecting
the results of the election alleging, in substance, that
shortly before the election, the Union distributed
false and misleading circulars regarding
Respondent's financial condition and an officer of
the Respondent; threatened an employee with loss of
her job if she did not vote for the Union; threatened
another employee with loss of her job unless she
signed a union card; and promised specific fringe
benefits to an employee if she signed a union card
and voted for the Union. The objections further al-
leged that the Board agent conducting the election
failed to appear at a preelection conference , arrived
late at a postponed conference, and left the voting
area several times during the polling period leaving
the ballot box and unmarked ballots beyond his con-
trol.
After investigation, the Regional Director issued a
Report and Recommendation on Objections on De-
cember 12, 1974, in which he concluded that
Respondent's objections did not raise material and
substantial matters affecting the election results and,
accordingly, he recommended that they be overruled
in their entirety and that the Union be certified. Re-
spondent thereupon filed exceptions to the Regional
Director's Report and Recommendation on Objec-
tions , substantially reiterating the contentions ad-
vanced in the objections. On March 25, 1975, a
Board panel majority, with Member Kennedy dis-
senting, issued a Decision and Certification of Rep-
resentative (217 NLRB No. 14), in which it adopted
the Regional Director's report and certified the
220 NLRB No. 53
SUNSHINE-50 CARE CENTERS
Union as exclusive bargaining agent of employees in
the unit stipulated to be appropriate. It thus appears
that Respondent is attempting in this proceeding to
relitigate matters fully litigated and finally de-
termined in the representation proceeding.
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
Respondent, a Michigan corporation, maintains its
only office and place of business in Ferndale, Michi-
gan, where it is engaged in providing nursing care
services to the ill and infirm. During its past fiscal
year Respondent 's gross revenues were in excess of
$250,000. During the same period Respondent pur-
chased goods valued in excess of $5,000 from points
outside the State of Michigan, which goods were
shipped directly to its Michigan facility.
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.
11. THE LABOR ORGANIZATION INVOLVED
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.
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)
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
257
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 Employer at its facility located at
3161 Hilton, Ferndale, Michigan, including
nurses aides, orderlies, housekeeping aides,
maintenance employees, laundry aides and
kitchen employees; but excluding office clerical
employees, registered nurses, professional em-
ployees, licensed practical nurses, guards and
supervisors as defined in the Act.
2. The certification
On August 22, 1974, a majority of the employees
of Respondent in said unit, in a secret ballot election
conducted wider the supervision of the Regional Di-
rector for Region 7, designated the Union as their
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 March 25, 1975, 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 April 10, 1975, and at all
times thereafter, the Union has requested the Re-
spondent to bargain collectively with it as the exclu-
sive collective-bargaining representative of all the
employees in the above-described unit. Commencing
on or about April 17, 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 exclusive representative for
collective bargaining of all employees in said unit.
Accordingly, we find that the Respondent has,
since April 17, 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.
258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 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 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); Bur-
nett 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. Sunshine-50 Care Centers, Inc., Hilton Conva-
lescent Home Division, 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 Internation-
al 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 employees
employed by Employer at its facility located at 3161
Hilton, Ferndale, Michigan, including nurses aides,
orderlies, housekeeping aides, maintenance employ-
ees, laundry aides and kitchen employees; but ex-
cluding office clerical employees, registered nurses,
professional employees, licensed practical nurses,
guards and supervisors as defined in the Act, consti-
tute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the
Act.
4. Since March 25, 1975, 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 April 17, 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.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that Respondent Sun-
shine-50 Care Centers, Inc., Hilton Convalescent
Home Division, Ferndale, Michigan, 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 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 employees
employed by Employer at its facility located at
3161 Hilton, Ferndale, Michigan, including
nurses aides , orderlies, housekeeping aides,
maintenance employees, laundry aides and
kitchen employees; but excluding office clerical
employees, registered nurses , professional em-
ployees, licensed practical 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
SUNSHINE-50 CARE CENTERS
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 facility at 3161 Hilton, Ferndale,
Michigan, copies of the attached notice marked "Ap-
pendix." 3 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 receipt
thereof, and be maintained by it for 60 consecutive
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.
3 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
259
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 Divi-
sion of Local 79, Service Employees Internation-
al Union, AFL-CIO, as the exclusive
representative of the employees in the bargain-
ing 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 employ-
ees employed by Employer at its facility locat-
ed at 3161 Hilton, Ferndale, Michigan, in-
cluding nurses aides, orderlies, housekeeping
aides, maintenance employees, laundry aides
and kitchen employees; but excluding office
clerical employees, registered nurses, profes-
sional employees, licensed practical nurses,
guards and supervisors as defined in the Act.
SUNSHINE-50 CARE CENTERS, INC., HILTON
CONVALESCENT HOME DIVISION