Willowcrest-Bamberger for Convalescents

National Labor Relations Board - Board Decisions

Aug 28, 1975

220 N.L.R.B. 31 (N.L.R.B. 1975)

WILLOWCREST-BAMBERGER 31
Willowcrest-Bamberger for Convalescents and Na-
tional Union of Hospital and Health Care Employ-
ees, RWDSU, AFL-CIO, District 1199C . Case 4-
CA-7270
August 28, 1975
DECISION AND ORDER
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:
BY CHAIRMAN MURPHY AND MEMBERS JENKINS
AND PENELLO
Upon a charge filed on February 26, 1975, by Na-
tional Union of Hospital and Health Care Employ-
ees, RWDSU, AFL-CIO, District 1199C, herein
called the Union, and duly served on Willowcrest-
Bamberger for Convalescents, herein called the Re-
spondent, the General Counsel of the National La-
bor Relations Board, by the Acting Regional Direc-
tor for Region 4, issued a complaint on March 28,
1975, 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 be-
fore 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 January 20, 1975,
following a Board election in Case 4-RC- 11134 the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate;' and that, commenc-
ing on or about February 24, 1975, and at all times
thereafter, 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 April 4, 1975, Respondent filed its answer to the
complaint admitting in part, and denying in part, the
allegations in the complaint.
On June 2, 1975, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment. Subsequently, on June 10, 1975, 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
'Official notice is taken of the record in the representation proceeding,
Case 4-RC-11134 , 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 (CA. 7, 1968); Sec
9(d) of the NLRA.
Ruling on the Motion for Summary Judgment
In its answer to the complaint and in its response
to the Notice To Show Cause, Respondent disputes
the Union's majority status and the validity of the
certification on the ground that the Regional Direc-
tor erred in overruling its challenges to the ballots of
three employees cast in the election in the underlying
representation proceeding.
Our review of the record in the representation pro-
ceeding, Case 4-RC-11134, indicates that in an elec-
tion conducted pursuant to an agreement for consent
election the vote was 22 for the Union, 22 against the
Union, with 3 ballots challenged. Challenges were
thus sufficient in number to affect the results of the
election. After an investigation, the Acting Regional
Director issued a Report on Challenged Ballots and
Notice of Hearing in which he ordered that a hearing
be held to resolve substantial and material factual
issues. A hearing was held on October 7, 1974, before
a duly designated Hearing Officer. On December 20,
1974, the Hearing Officer issued his Report on Chal-
lenged Ballots in which he recommended that the
challenges to the three ballots be overruled and that
the challenged ballots be opened and counted. No
exceptions to the Hearing Officer's report were filed
by either party within the time provided therefor,
whereupon the Regional Director adopted the find-
ings, conclusions, and recommendations of the Hear-
ing Officer pro forma in an Order Directing the
Opening and Counting of Challenged Ballots. A re-
vised tally of ballots indicated that a majority of the
valid votes had been cast in favor of the Union and
the Regional Director, accordingly, certified the
Union as the collective-bargaining representative of
the employees in the unit found appropriate herein.
Clearly, in its answer to the complaint and in its
response to the Notice To Show Cause, the Respon-
dent is attempting to relitigate the same issues which
it raised and which were determined in the represen-
tation proceeding, Case 4-RC-11134.
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
220 NLRB No. 13
32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a prior representation proceeding.2
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 Pennsylvania corporation, is a non-
profit concern providing skilled nursing and conva-
lescent services at its facility in Philadelphia, Penn-
sylvania. During the past year Respondent 's gross
receipts from services performed for patients exceed-
ed $100,000. During the same period Respondent
purchased and received goods valued in excess of
$50,000 indirectly from firms located outside the
Commonwealth of Pennsylvania.
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.
H. THE LABOR ORGANIZATION INVOLVED
National Union of Hospital and Health Care Em-
ployees, RWDSU, AFL-CIO, District 1199C, is a la-
bor organization within the meaning of Section 2(5)
of the Act.
purposes within the meaning of Section 9 (b) of the
Act:
All licensed practical nurses, nursing assis-
tants, food service, housekeeping and mainte-
nance personnel of Willowcrest-Bamberger for
Convalescents, Philadelphia, Pennsylvania; but
excluding all other employees, clericals, guards
and supervisors as defined in the Act.
2. The certification
On September 10, 1974, a majority of the employ-
ees of Respondent in said unit, in a secret ballot elec-
tion conducted under the supervision of the Regional
Director for Region 4, 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 January 20, 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 February 13, 1975, and
at all times thereafter, the Union has requested the
Respondent to bargain collectively with it as the ex-
clusive collective-bargaining representative of all the
employees in the above-described unit. Commencing
on or about February 24, 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 February 24, 1975, and at all times thereafter,
refused 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.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of the Respondent con-
stitute a unit appropriate for collective-bargaining
2 See Pittsburgh Plate Glass C o . 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).
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.
WILLOWCREST-BAMBERGER 33
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. Willowcrest-Bamberger for Convalescents is an
employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. National Union of Hospital and Health Care
Employees , RWDSU, AFL-CIO, District 1199C, is a
labor organization within the meaning of Section
2(5) of the Act.
3. All licensed practical nurses , nursing assistants,
food service , housekeeping and maintenance person-
nel of Willowcrest-Bamberger for Convalescents,
Philadelphia , Pennsylvania ; but excluding all other
employees , clericals , 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 January 20 , 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 purposes of collective
bargaining within the meaning of Section 9 (a) of the
Act.
5. By refusing on or about February 24, 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, Wil-
lowcrest-Bamberger for Convalescents, Philadelphia,
Pennsylvania, its officers, agents, successors, and as-
signs, 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 National Union of Hos-
pital and Health Care Employees, RWDSU, AFL-
CIO, District 1199C, as the exclusive bargaining rep-
resentative of its employees in the following
appropriate unit:
All licensed practical nurses, nursing assis-
tants, food service, housekeeping and mainte-
nance personnel of Willowcrest-Bamberger for
Convalescents, Philadelphia, Pennsylvania; but
excluding all other employees, clericals, 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 under-
standing is reached, embody such understanding in a
signed agreement.
(b) Post at its facility in Philadelphia, Pennsylva-
nia, copies of the attached notice marked "Appen-
dix." 3 Copies of said notice, on forms provided by
3In 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 "
34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Regional Director for Region 4, after being duly
signed by Respondent's representative, shall be post-
ed 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 Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for Region 4, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
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 Na-
tional Union of Hospital and Health Care Em-
ployees, RWDSU, AFL-CIO, District 1199C, 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 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,
wages, 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 licensed practical nurses, nursing assis-
tants, food service, housekeeping and mainte-
nance personnel of Willowcrest-Bamberger
for Convalescents, Philadelphia, Pennsylva-
nia; but excluding all other employees, cleri-
cals, guards and supervisors as defined in the
Act.
W ILLOWCREST- BAMBERGER
FOR CONVALESCENTS