Valley Manor Convalescent Center

National Labor Relations Board - Board Decisions

Aug 15, 1968

172 N.L.R.B. 1554 (N.L.R.B. 1968)

1554 DECISIONS OF NATIONAL
Willis Campbell , Jack N. Smith and Darryl
Struthers , a co-partnership d/b/a Valley Manor
Convalescent Center and Building Service Em-
ployees' International Union, Local 120, affiliated
with Service Employees ' International Union,
AFL-CIO. Case 19-CA-3998
August 15, 1968
DECISION AND ORDER
By MEMBERS FANNING, JENKINS, AND ZAGORIA
Upon a charge filed by Building Service Em-
ployees' International Union, Local 120, affiliated
with Service Employees ' International Union,
AFL-CIO, herein called the Union , the General
Counsel for the National Labor Relations Board, by
the Regional Director for Region 19 , issued a com-
plaint dated May 10 , 1968, against Willis Campbell,
Jack N. Smith and Darryl Struthers, a co-partner-
ship d/b/a Valley Manor Convalescent Center,
herein called the Respondents , alleging that the
Respondents have engaged in, and are engaging in,
unfair labor practices within the meaning of Sec-
tion 8(a)(5) and ( 1) and Section 2(6) and (7) of
the National Labor Relations Act, as amended. Co-
pies of the charge and of the complaint and notice
of hearing were duly served on the Respondents
and the Union.
With respect to the unfair labor practices, the
complaint alleges, in substance , that on April 5,
1968, the Union was duly certified as the exclusive
bargaining representative of the Respondents' em-
ployees in the unit found appropriate ,' and that
since on or about April 22, 1968, the Respondents
have refused and are refusing to recognize and bar-
gain with the Union as such exclusive bargaining
representative, although the Union has requested
them to do so. On May 17, 1968, the Respondents
filed their answer admitting in part, and denying in
part , the allegations of the complaint , presenting an
affirmative defense, and requesting that the com-
plaint be dismissed.
On May 31 , 1968, the General Counsel filed with
the Board a motion for summary judgment and a
memorandum in support thereof, submitting that
the Respondents ' answer raises no substantial issue
as to any material fact and moving that the
proceeding be transferred to the Board . Thereafter,
Case 19-RC-4647 ( not published in NLRB volumes)
The Respondents' motion to consolidate is hereby denied
Decision and Direction of Election issued March 1 , 1968, in Case
I9-RC-4647
Pittsburgh Plate Glass Company v N L R B 313 U S 146
In their opposition to motion for summary judgment, the Respondents
request a hearing, contending that they have newly discovered evidence
The Respondents now contend that their religious beliefs would not
LABOR RELATIONS BOARD
on June 3, 1968, the Board issued an Order Trans-
ferring Proceeding to the Board and Notice To
Show Cause why the General Counsel's motion for
summary judgment should not be granted. On June
5, 1968, the Respondents filed a motion to con-
solidate the instant case with Case 19-CA-4038.20n
June 17, 1968, the Respondents filed a memoran-
dum in opposition to motion for summary
judgment.
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
powers in connection with this case to a three-
member panel.
RULINGS ON THE MOTION FOR SUMMARY JUDGMENT
In their opposition to the General Counsel's mo-
tion for summary judgment, the Respondents admit
their refusal to bargain with the certified bargaining
representative of their employees. However, as an
affirmative defense, the Respondents contend that
an order requiring them to bargain with the com-
plaining Union would infringe on their religious
liberties and constitutional rights. By raising this ar-
gument, the Respondents are raising no issue
requiring a hearing, because the Respondents' posi-
tion was fully considered by the Regional Director
in the representation proceeding.3 In that proceed-
ing, the Regional Director found the Respondent's
argument to be lacking in merit. On March 15,
1968, the Respondents filed with the Board a
request for review of the Regional Director's Deci-
sion; such request was denied by the Board on
March 25, 1968.
In their attempt to obtain a hearing, the Respon-
dents are attempting to relitigate issues decided by
the Board in the earlier representation proceeding.
It is well established that, in the absence of newly
discovered or previously unavailable evidence, a
respondent is not entitled to relitigate in a Section
8(a)(5) proceeding issues which were or could
have been raised in a related representation
proceeding.4
All material issues having been either decided by
the Board or admitted in the answer to the com-
plaint, there are no matters requiring a hearing be-
fore a Trial Examiner. Accordingly, the General
Counsel's motion for summary judgment is granted.
preclude them from bargaining with members of a committee constituted
solely of the Respondents ' employees so long as such committee does not
represent an organization of employees other than the Respondents' em-
ployees The Respondents still maintain, however, that their religious
beliefs preclude them from bargaining with the complainant Union
We find that the offered evidence is in the nature of a further refinement
of the same basic argument raised in the representation proceeding and
presents nothing that has not been previously litigated and decided
172 NLRB No. 174
VALLEY MANOR CONVALESCENT CENTER 1555
On the basis of the record before it, the Board
makes the following:
FINDINGS OF FACT
1968, the Regional Director certified the Union as
the exclusive collective -bargaining representative of
all the employees in said unit , and the Union con-
tinues to be such representative.
1. THE BUSINESS OF RESPONDENTS
The Respondents , Willis Campbell, Jack N.
Smith and Darryl Struthers , a co-partnership d/b/a
Valley Manor Convalescent Center, are engaged at
Mount Vernon, Washington , in the operation of a
proprietary nursing home ; during their last business
year the gross volume of business exceeded
$350,000; during the same period purchases of
goods from interstate commerce amounted to
$7,200; the Respondents also received $46,200 in
medicare payments under the Federal Medicare
Act.
The Respondents admit and we find that the
Respondents are, and have been at all times materi-
al herein , an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
Building Service Employees' International Union,
Local 120, affiliated with Service Employees ' Inter-
national Union , 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
At all times material herein , the following em-
ployees have constituted and now constitute a unit
appropriate for purposes of collective bargaining
within the meaning of the Act:
All employees employed by the Employer at its
Mount Vernon, Washington , nursing home, ex-
cluding office clerical employees , registered
nurses, licensed practical nurses, professional
employees , confidential employees , guards,
and supervisors as defined in the Act.
2. The certification
On March 28 , 1968, a majority of the employees
in said unit , voting in a secret ballot election con-
ducted under the supervision of the Regional
Director for Region 19 of the National Labor Rela-
tions Board , designated the Union as their
representative for the purposes of collective bar-
gaining with the Respondents , and, on April 5,
B. The Request To Bargain and the Respondents'
Refusal
On or about April 10, 1968, and then again on
April 22, 1968, the Union requested and continues
to request that the Respondents bargain collectively
with it as the exclusive collective -bargaining
representative of all the employees in the above-
described unit . Commencing on or about April 22,
1968, the Respondents refused , and continue to
refuse, to bargain collectively with the Union as ex-
clusive bargaining representative of the employees
in said unit.
Accordingly , we find that the Union was duly
certified as the collective -bargaining representative
of the employees of the Respondents in the ap-
propriate unit described above; that the Union at
all times since April 5, 1968, has been and now is
the exclusive bargaining representative of all the
employees in the aforesaid unit , within the meaning
of Section 9(a) of the Act; and that the Respon-
dents have since April 22, 1968, refused to bargain
collectively with the Union as the exclusive bar-
gaining representative of their employees in the ap-
propriate unit . By such refusal , the Respondents
have engaged in, and are 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 the Respondents set forth in sec-
tion III, above , occurring in connection with their
operations 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
commerce.
THE REMEDY
Having found that the Respondents have engaged
in unfair labor practices within the meaning of Sec-
tion 8 ( a)(5) and (1) of the Act, we shall order that
they 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.
1556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. The Respondents are, and have been at all
times material herein, an employer engaged in com-
merce within the meaning of Section 2(6) and (7)
of the Act.
2. Building Service Employees' International
Union, Local 120, affiliated with Service Em-
ployees' International Union, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of
the Act.
3. All employees employed by the Employer at
its Mount Vernon, Washington, nursing home, ex-
cluding office clerical employees, registered nurses,
licensed practical nurses, professional employees,
confidential employees, guards, and supervisors as
defined 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 April 5, 1968, 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 purposes of col-
lective bargaining within the meaning of Section
9(a) of the Act.
5. By refusing on or about April 22, 1968, and at
all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive
bargaining representative of all the employees of
the Respondents in the aforesaid appropriate unit,
the Respondents have engaged in and are engaging.
in unfair labor practices within the meaning of Sec-
tion 8(a)(5) and (I) of the Act.
6. By the aforesaid refusal to bargain, the
Respondents have interfered with, restrained, and
coerced, and are interfering with, restraining, and
coercing, their employees in the exercise of the
rights guaranteed to them in Section 7 of the Act
and have thereby engaged in, and are engaging in,
unfair labor practices within the meaning of Section
8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning 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 Respon-
dents, Willis Campbell, Jack N. Smith and Darryl
Struthers, a co-partnership d/b/a Valley Manor
Convalescent Center, Mount Vernon, Washington,
their 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 Building Service
Employees' International Union , Local 120, af-
filiated with Service Employees ' International
Union , AFL-CIO, as the exclusive bargaining
representative of their employees in the following
appropriate unit:
All employees employed by the Employer at its
Mount Vernon , Washington , nursing home, ex-
cluding office clerical employees , registered
nurses, licensed practical nurses, professional
employees , 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 ex-
ercise of the rights guaranteed to them by 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 understanding is reached , embody such un-
derstanding in a signed agreement.
(b) Post at their Mount Vernon , Washington,
place of business copies of the attached notice
marked " Appendix ."5 Copies of said notice, on
forms provided by the Regional Director for Region
19, after being duly signed by the Respondents'
representative , shall be posted by the Respondents
immediately upon receipt thereof , and be main-
tained by them for 60 consecutive days thereafter,
in conspicuous places, including all places where
notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondents
to insure that said notices are not altered , defaced,
or covered by any other material.
(c) Notify the Regional Director for Region 19,
in writing , within 10 days from the date of this
Order , what steps have been taken to comply
herewith.
' In the event that this Order is enforced by a decree of a United States
Court of Appeals , there shall be substituted for the words " a Decision and
Order" the words "a Decree of the United States Court of Appeals Enforc-
ing an Order "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National
Labor Relations Board and in order to effectuate
the policies of the National Labor Relations Act, as
amended, we hereby notify you that:
VALLEY MANOR CONVALESCENT CENTER
WE WILL NOT refuse to bargain collectively
with Building Service Employees ' International
Union , Local 120, affiliated with Service Em-
ployees' International Union , 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 em-
ployees 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 of our employees in the bargaining
unit described below with respect to rates of
pay, wages , hours, and other terms and condi-
tions of employment and, if an understanding
is reached , embody such understanding in a
signed agreement.
The bargaining unit is:
All employees employed by the Employer
at its Mount Vernon , Washington , nursing
home , excluding office clerical employees,
1557
registered nurses, licensed practical nur-
ses, professional employees , confidential
employees , guards, and supervisors as
defined in the Act.
Dated By
VALLEY MANOR
CONVALESCENT CENTER
(Employer)
(Representative ) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered , defaced , or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions , they may
communicate directly with the Board 's Regional
Office, 327 Logan Building , 500 Union Street,
Seattle, Washington 98101, Telephone 583-4532.