University Nursing Care Center

National Labor Relations Board - Board Decisions

Sep 30, 1985

276 N.L.R.B. 1415 (N.L.R.B. 1985)

UNIVERSITY NURSING CARE CENTER
Twin Towers Developments d/b/a University Nurs-
ing Care Center and 1115 Nursing Home and
Hospital Employees-Florida Division of 1115
Joint Board. Case 12-CA-11338
30 September 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
Upon a charge filed by the Union 19 April
1984,1 the General Counsel of the National Labor
Relations Board issued a complaint 19 October
against the Company, the Respondent, alleging that
it has violated Section 8(a)(5) and (1) of the Na-
tional Labor Relations Act.
The complaint alleges that on 7 June, following
a Board election in Case 12-RC-6492, the Union
was certified as the exclusive collective-bargaining
representative of the Company's employees in the
unit found appropriate. (Official notice is taken of
the "record" in the representation proceeding as
defined in the Board's Rules and Regulations, Secs.
102.68 and 102.69(g), amended Sept. 9, 1981, 46
Fed. Reg. 45922 (1981); Frontier Hotel., 265 NLRB
343 (1982). The complaint further alleges that since
24 July the Company has refused to bargain with
the Union. On 5 November the Company filed its
answer admitting in part and denying in part the
allegations in the complaint and setting forth cer-
tain affirmative defenses.
On 23 November the General Counsel filed a
Motion for Summary Judgment. On '9 November
the Board issued an order transferring the proceed-
ing to the Board and a Notice to Show Cause why
the motion should not be granted. The Company
filed a response.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
Ruling on Motion for Summary Judgment
In its answer to the complaint and response to
the Notice to Show Cause, the Company admits
the request and the refusal to bargain. It asserts,
however, that the Regional Director erred in refus-
ing to consider its late filed objections in the under-
lying representation proceedings, that the substance
of said objections should be reviewed by the
Board, and that, based on the union misconduct al-
leged therein, a new election should be conducted.
It further contends that its refusal to bargain with
the Union is justified because the Union has at-
I All dates herein are in 1984.
1415
tempted to bargain on behalf of employees express-
ly excluded from the certified unit.
A review of the record herein, including that of
the representation proceeding in Case 12-RC-
11338, reveals that an election conducted pursuant
to a Stipulation for Certification Upon Consent
Election on 25 May resulted in a vote of 35 to 13
in favor of the Union , with 2 challenged ballots
which were insufficient to affect the result of the
election. To comply with Section 102 .69(a) of the
Board 's Rules and Regulations , objections were
due to be filed before close of business 4 June. No
objections were filed by that time, and on 7 June
the Regional Director issued a Certification of
Representative.
Thereafter , by letter dated 7 June and received
in the Regional Office 11 June, the Company at-
tempted to file objections . By letter dated 12 June,
the Regional Director rejected and returned the
Company 's objections as untimely filed. By letters
dated 24 July and 17 August , the Company re-
quested that the Regional Director reconsider his
12 June rejection of its untimely filed objections;
these requests were denied by letters dated 31 July
and 23 August, respectively . The Company did not
appeal the Regional Director 's adverse ruling to
the Board.
The Company admits that its written objections
were not timely filed, but contends that the Region
had verbal notice of its intention to file objections
if the Union won,2 and that its delay in filing writ-
ten objections should be excused because, inter alia,
the full extent of the Union 's "election impropri-
eties" were not known to it within the time provid-
ed in Section 102.69 (a) of the Board's Rules and
Regulations, 3 and during that time it experienced a
change in administration and was involved in an
exhaustive Medicaid audit. The Company contends
that, in view of the above, it did its best to alert
the Board to the Union 's election misconduct as
soon as possible, and that review of the substance
of its objections should not be precluded.
An exception to the timely filing requirements of
Section 102.69(a) of the Rules will be made only if
the objecting party can either show an honest at-
tempt to substantially comply with that rule or a
valid and compelling reason why such compliance
was not possible within the time required . Alfred
Nickles Bakery, Inc., 209 NLRB 1058 ( 1974); Saeger
2 The Company claims that when it learned of certain alleged union
misconduct on the day before the election, it talked to a representative of
the Board, was informed of the objections procedure, and indicated it
would file objections if the Union won.
3 The alleged misconduct includes "misrepresentations as to the nature
of the election and what the Union could do if elected, physical intimida-
tion of employees, and campaign speeches on company time within 24
hours of the election "
276 NLRB No. 163
1416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Carbide Corp., 267 NLRB 47 (1983). Here, it is
clear from the undisputed or admitted facts that the
Company has failed to meet either part of that test.
See Fay's Drug Co., 255 NLRB 272 (1981).
It is well settled that in the absence of newly dis-
covered and 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 that were or could have been
litigated in a prior representation proceeding. See
Pittsburgh Glass Co. v. NLRB, 313 U.S. 146, 162
(1941); Secs. 102.67(f) and 102.69(c) of the Board's
Rules and Regulations.
All issues raised by the Company were or could
have been litigated in the prior representation pro-
ceeding. The Company does not offer to adduce at
a hearing any newly discovered and previously un-
available evidence, nor does it allege any special
circumstances that would require the Board to re-
examine the Regional Director's decision made in
the representation proceeding.4 We therefore find
that the Company has not raised any issue that is
properly litigable in this unfair labor practice pro-
ceeding. Accordingly we grant the Motion for
Summary Judgment.5
On the entire record, the Board makes the fol-
lowing
FINDINGS OF FACT
1. JURISDICTION
The Company, a Florida corporation with its
principal place of business in Gainesville, Florida,
is engaged in the operation of a nursing home for
the ill and aged. During the past 12 months, the
Company in the course and conduct of its business
operations derived gross revenues in excess of
$100,000, and purchased and received goods, sup-
plies, and materials valued in excess of $10,000 at
its Gainesville, Florida, nursing home, which were
shipped directly from points located outside the
State of Florida. We find that the Company is an
employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
4 The Company also defends its refusal to bargain on the grounds that
the Union allegedly has attempted to bargain on behalf of employees
who are not in the certified unit, i.e , ward clerks and office workers. An
employer cannot be compelled to bargain concerning employees outside
the bargaining unit However, the Company has refused since 24 July to
bargain with the Union until "a fair and valid election has been conduct-
ed" with respect to any employees in the unit The Union's request that
the Company bargain over an excluded classification does not excuse the
Company's refusal to bargain with respect to the employees in the unit.
Accordingly, the Company's defense is without merit
5 Member Babson did not participate in the underlying representation
proceeding . In joining his colleagues in granting the General Counsel's
Motion for Summary Judgment, he notes that the Respondent is not enti-
tled to litigate in this proceeding issues which could have been litigated
in the underlying representation proceeding
The Union is a labor organization within the
meaning of Section 2(5) of the Act. 6
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the election held 25 May the Union
was certified as the collective -bargaining represent-
ative of the employees in the following appropriate
unit:
All nurses aides; maintenance employees;
housekeeping employees including maids, por-
ters and laundry maids; laundry employees; di-
etary employees including cooks, utility die-
tary aides, and dishwashers employed by the
Employer at its facility located in Gainesville,
Florida; excluding all RNs; LPNs; consultants;
professional employees; technical employees;
business office clericals including bookkeepers
and clerical aides; guards, and supervisors as
defined in the Act.7
The Union continues to be the exclusive represent-
ative under Section 9(a) of the Act.
B. Refusal to Bargain
Since 7 June the Union has requested the Com-
pany to bargain, and since 24 July the Company
has refused. We find that this refusal constitutes an
unlawful refusal to bargain in violation of Section
8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
By refusing on and after 24 July 1984 to bargain
with the Union as the exclusive collective-bargain-
ing representative of employees in the appropriate
unit, the Company has engaged in unfair labor
practices affecting commerce within the meaning
of Section 8(a)(5) and (1) and Section 2(6) and (7)
of the Act.
6 While the Company, in its answer to the complaint, claims to be
without knowledge of the Union 's status as a labor organization , our find-
ing that the Union is a labor organization is supported by numerous
Board and court decisions. E.g., Hospital Employees Local 1115 (Krest
View Nursing Home), 248 NLRB 1234 (1980), Local 1115 v B & K Invest-
ments, 436 F.Supp 1203 (D C Fla. 1977) Further, we note that the
Company in the Stipulation for Certification Upon Consent Election stip-
ulated that the Union is a labor organization
7 In its answer to the complaint, the Company denies the appropriate-
ness of this unit for the purpose of collective bargaining This unit is the
unit stipulated to as appropriate by the Company in the Stipulation for
Certification Upon Consent Election. The Company, having entered into
that stipulation and having failed in any other manner to challenge the
appropriateness of the certified unit in the underlying representation pro-
ceeding, is now foreclosed from challenging the appropriateness of the
unit
UNIVERSITY NURSING CARE CENTER
REMEDY
Having found that the Respondent has violated
Section 8 (a)(5) and (1) of the Act, we shall order it
to cease and desist , to bargain on request with the
Union, and , if an understanding is reached, to
embody the understanding in a signed agreement.
To ensure that the employees are accorded the
services of their selected bargaining agent for the
period provided by law, we shall construe the ini-
tial period of the certification as beginning the date
the Respondent begins to bargain in good faith
with the Union . Mar-Jac Poultry Co., 136 NLRB
785 (1962); Lamar Hotel, 140 NLRBB 226, 229
(1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert.
denied 379 U.S. 817 ( 1964); Burnett Construction
Co., 149 NLRB 1419, 1421 ( 1964), enfd . 350 F.2d
57 (10th Cir . 1965).
ORDER
The National Labor Relations Board orders that
the Respondent, Twin Towers Development d/b/a
University Nursing Care Center, Gainesville, Flori-
da, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with 1115 Nursing Home
and Hospital Employees-Florida Division of 1115
Joint Board as the exclusive bargaining representa-
tive of the employees in the bargaining unit.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) On request, bargain with the Union as the ex-
clusive representative of the employees in the fol-
lowing appropriate unit on terms and conditions of
employment and, if an understanding is reached,
embody the understanding in a signed agreement:
All nurses aides; maintenance employees;
housekeeping employees including maids, por-
ters and laundry maids, laundry employees; di-
etary employees including cooks, utility die-
tary aides, and dishwashers employed by the
Employer at its facility located in Gainesville,
Florida; excluding all RNs; LPNs; consultants;
professional employees; technical employees,
business office clericals including bookkeepers
and clerical aides; guards, and supervisors as
defined in the Act.
(b) Post at its facility in. Gainesville, Florida,
copies of the attached notice marked "Appendix."$
s If 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
1417
Copies of the notice, on forms provided by the Re-
gional Director for Region 12, after being signed
by the Company's authorized representative, shall
be posted by the Company immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to employees ate customarily posted. Reason-
able steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Company has taken to comply.
of the United States Court of Appeals Enforcing an Order of the Nation.
al Labor Relations Berard "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS. BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT refuse to bargain with 1115 Nurs-
ing Home and Hospital Employees-Florida Divi-
sion of 1115 Joint Board as the exclusive represent-
ative of the employees in the bargaining unit.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL, on request, bargain with the Union
and put in writing and sign any agreement reached
on terms and conditions of employment for our
employees in the bargaining unit:
All nurses aides; maintenance employees;
housekeeping employees including maids, por-
ters and laundry maids, laundry employees; di-
etary employees including cooks, utility die-
tary aides, and dishwashers employed by the
Employer at its facility located in Gainesville,
Florida; excluding all RNs; LPNs; consultants;
professional employees; technical employees,
business office clericals including bookkeepers
and clerical aides; guards, and supervisors as
defined in the Act.
TWIN TOWERS DEVELOPMENTS D/B/A
UNIVERSITY NURSING CARE CENTER