LaCrescent Constant Care Center, Inc.

National Labor Relations Board - Board Decisions

Jun 18, 1974

211 N.L.R.B. 671 (N.L.R.B. 1974)

LaCRESCENT CONSTANT CARE CENTER 671
LaCrescent Constant Care Center, Inc. and Minnesota
Council #65, American Federation of State,
County and Municipal Employees , AFL-CIO.
Case 18-CA-4099
June 18, 1974
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
Upon a charge filed on January 30, 1974, by
Minnesota Council #65, American Federation of
State, County and Municipal Employees, AFL-CIO,
herein called the Union, and duly served on
LaCrescent Constant Care Center, Inc., herein called
the Respondent, the General Counsel of the National
Labor Relations Board, by the Acting Regional
Director for Region 18, issued a complaint on
February 4, 1974, 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 before an Administrative Law
Judge were duly served on the parties to this
proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on January 4,
1974, following a Board election in Case
18-RC-9536 the Union was duly certified as the
exclusive collective-bargaining representative of Re-
spondent's employees inthe unit found appropriate;'
and that, commencing on or about January 22, 1974,
and at all times thereafter, Respondent has refused,
and continues to date to refuse, to bargain collective-
ly with the Union as the exclusive bargaining
representative, although the Union has requested
and is requesting it to do so. On February 15, 1974,
Respondent filed its answer to the complaint
admitting in part, and denying in part, the allegations
in the complaint.
On March 15 and 18, 1974, the Respondent and
the Union entered into a stipulation in which the
parties, inter alia, stipulated that there were no
factual issues warranting a hearing and waived the
right to a hearing, the filing of briefs before the
Board, or the right to receive and respond to an
Order To Show Cause why the Board should not
grant counsel for the General Counsel's Motion for
Summary Judgment. On March 22, 1974, counsel for
the General Counsel filed directly with the Board a
Motion for Summary Judgment. Subsequently, on
April 4, 1974, the Board issued an order transferring
the proceeding to the Board, and approving and
making a part of the record the stipulation of the
Respondent and the Union.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority 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, the Respondent
basically contends that the Board erred in refusing to
set aside the election in the underlying representation
case on the basis of its objections thereto, and that
therefore the Union's certification is invalid. As
indicated by the stipulation entered herein, there are
no issues of fact in dispute.
Our review of the record, including Case
18-RC-9536, reveals an election conducted pursuant
to a Stipulation for Certification Upon Consent
Election on June 5, 1973, which resulted in a 26-to- 12
vote in favor of the Union. Respondent filed timely
objections to the election, alleging in substance that
the Union had misrepresented (1) the Respondent's
ability to secure increased reimbursement from state
welfare agencies which would enable it to give
employee wage increases; (2) the basis of a court
judgment adverse to Respondent in an action by it
seeking to obtain additional reimbursement from
state welfare agencies; and (3) Respondent's finan-
cial standing in order to induce employees to believe
that the Respondent was "profiteering" at their
expense.
After investigation, the Acting Regional Director,
on July 25, 1973, issued his Report on Objections
and Recommendation, finding that although the
Union had made misrepresentations as alleged in the
objections, Respondent had submitted sufficient
information to the employees to allow them to make
an independent evaluation thereof. The Acting
Regional Director also found no merit in Respon-
dent's subsequent objection based on the Union's
accusation that the Respondent's agent made a false
statement concerning the local Union's president
employed by another employer, and on a false
allegation that the agent had subsequently apolo-
gized to the president. Accordingly, the Acting
Regional Director recommended overruling the
I Official notice is taken of the record in the representation proceeding , Golden Age Beverage Co., 167 NLRB 151, enfd 415 F.2d 26 (C.A 5, 1969),
Case 18-RC-9536, as the term "record" is defined in Secs. 102 68 and Intertype Co. v. Penello, 269 F.Supp. 573 (D.C. Va., 1967); Follett Corp., 164
102.69(f) of the Board's Rules and Regulations, Series 8, as amended . See NLRB 378 , enfd . 397 F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA.
LTV Electrosystems, Inc., 166 NLRB 938, enfd . 388 F .2d 683 (C.A. 4, 1968),
211 NLRB No. 72
672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
objections in their entirety and certifying the Union.
Respondent filed timely exceptions to the report,
reasserting its objections and requesting a hearing
thereon.
The Board panel , with Member Kennedy dissent-
ing, issued a Decision and Certification of Repre-
sentative (208 NLRB No. 9) on January 4, 1974, in
which it found that the exceptions raised no material
issues of fact or law which would warrant a hearing
or the reversal of the Acting Regional Director's
findings , conclusions , or recommendations . Accord-
ingly, it certified the Union. On January 9, 1974, the
Respondent filed a Motion for Reconsideration,
reasserting its arguments made on the objections. On
January 18, 1974, the Board panel , with Member
Kennedy dissenting, denied this motion as lacking in
merit as it presented no new evidence or matters not
previously considered.
In the instant proceeding , as noted above, Respon-
dent has stipulated to stand on the record in the
representation proceeding and thus is attempting to
relitigate issues adversely determined to it in the
representation case in this unfair labor practice
proceeding.2
It is well settled that in the absence of newly
discovered or 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 which were or could have been
litigated in a prior representation proceeding.3
All issues raised by the Respondent in this
proceeding were or could have been litigated in the
prior representation proceeding, and the Respondent
does not offer to adduce at a hearing any newly
discovered or previously unavailable evidence, nor
does it allege that any special circumstances exist
herein which would require the Board to reexamine
the decision 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:
dent, in the course and conduct of its business
operation , derived gross revenue in excess of
$300,000, and purchased and caused to be transport-
ed to its Minnesota place of business , goods and
materials valued in excess of $50 ,000, of which goods
and materials valued in excess of $50,000 were
transported and delivered to said place of business in
the State of Minnesota, directly from points located
outside the State of Minnesota.
We find , on the basis of the foregoing, that
Respondent is, and has been at all times material
herein , 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
jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Minnesota Council #65, American Federation of
State , County and Municipal Employees, 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
The following employees of the Respondent
constitute a unit appropriate for collective -bargain-
ing purposes within the meaning of Section 9(b) of
the Act:
All full-time and regular part-time nurses aides,
housekeeping employees , laundry employees,
dietary employees, social activities aide, orderlies,
and maintenance employees employed by Re-
spondent at its LaCrescent, Minnesota, facility;
excluding casual employees , temporary employ-
ees, confidential employees, LPN's, RN's, guards,
and supervisors as defined in the National Labor
Relations Act, as amended.
2. The certification
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is a Minnesota corporation engaged in
the business of a proprietary nursing home in the city
of LaCrescent, State of Minnesota . During the
calendar year past, which period is representative of
its operations at all times material hereto , Respon-
On June 5, 1973, a majority of the employees of
Respondent in said unit , in a secret ballot election
conducted under the supervision of the Regional
Director for Region 18, 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 4, 1974, and the
7 By its denials in its answer of the Union 's status as a labor organization Board in the representation case.
and the appropriateness of the bargaining unit , the Respondent is also 3 See Pittsburgh Plate Glass Co. v. N.LRB., 313 U.S. 146,162 (1941);
seeking to relitigate issues which were considered and deternuned by the Rules and Regulations of the Board , Secs . 102.67(f) and 102 .69(c).
La CRESCENT CONSTANT CARE CENTER 673
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 January 17, 1974, and at
all times thereafter, the Union has requested the
Respondent to bargain collectively with it as the
exclusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about January 22, 1974, and continu-
ing at all times thereafter to date, the Respondent has
refused, and continues to refuse, to recognize and
bargain with the Union as the exclusive representa-
tive for collective bargaining of all employees in said
unit.
Accordingly, we find that the Respondent has,
since January 22, 1974, and at all times thereafter,
refused to bargain collectively with the Union as the
exclusive representative of the employees in the
appropriate unit, and that, by such refusal, Respon-
dent has engaged in and is 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 Respondent set forth in section
III, above, occurring in connection with its opera-
tions described in section I, 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 com-
merce.
V. THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the
meaning 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
appropriate unit, and, if an understanding is reached,
embody such understanding in a signed agreement.
In order to insure that the employees in the
appropriate unit will be accorded the services of their
selected bargaining agent for the period provided by
law, we shall construe the initial period of certifica-
tion as beginning onthe,date Respondent commences
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; Commerce Company d/b/a Lamar Hotel,
140 NLRB 226, 229, enfd . 328 F .2d 600 (C.A. 5),
cert . denied 379 U.S. 817; Burnett Construction
Company, 149 NLRB 1419 , 1421, enfd . 350 F.2d 57
(C.A. 10).
The Board , upon the basis of the foregoing facts
and the entire record , makes the following:
CONCLUSIONS OF LAW
1. LaCrescent Constant Care Center, Inc., is an
employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. Minnesota Council #65, American Federation
of State, County and Municipal Employees,
AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. All full-time and regular part-time nurses aides,
housekeeping employees, laundry employees, dietary
employees, social activities aide, orderlies, and
maintenance employees employed by Respondent at
its LaCrescent, Minnesota, facility; excluding casual
employees, temporary employees, confidential em-
ployees, LPN's, RN's, 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 January 4, 1974, 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 purpose of collec-
tive bargaining within the meaning of Section 9(a) of
the Act.
5. By refusing on or about January 22, 1974, and
at all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive
bargaining representative of all the employees of
Respondent in the appropriate unit, Respondent has
engaged 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, Respon-
dent has interfered with, restrained, and coerced, and
is interfering with, restraining, and coercing, employ-
ees 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
meaning 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
Relations Board hereby orders that Respondent,
LaCrescent Constant Care Center, Inc., LaCrescent,
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Minnesota , its officers , agents, successors , and of the Act by refusing to bargain with the Union.
assigns, shall: Accordingly , I would deny the General Counsel's
1. Cease and desist from : Motion for Summary Judgment and dismiss the
(a) Refusing to bargain collectively concerning complaint in its entirety.
rates of pay, wages, hours, and other terms and
conditions of employment , with Minnesota Council
#65, American Federation of State , County and
Municipal Employees , AFL-CIO, as the exclusive
bargaining representative of its employees in the
following appropriate unit:
All full-time and regular part -time nurses aides,
housekeeping employees , laundry employees,
dietary employees , social activities aide , orderlies,
and maintenance employees employed by Re-
spondent at its LaCrescent , Minnesota, facility;
excluding casual employees , temporary employ-
ees, confidential employees , LPN's, RN's, 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 LaCrescent, Minnesota, location
copies of the attached notice marked "Appendix." 4
Copies of said notice, on forms provided by the
Regional Director for Region 18 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,
defaced , or covered by any other material.
(c) Notify the Regional Director for Region 18, in
writing , within 20 days from the date of this Order,
what steps have been taken to comply herewith.
MEMBER KENNEDY, dissenting:
In my earlier dissent in the representation case, I
found that a substantial misrepresentation by the
Union of Respondent's financial condition warrant-
ed setting aside the election and directing that a new
election be held. LaCrescent Constant Care Nursing
Center, Inc., 208 NLRB No. 9. In these circum-
stances , contrary to my colleagues, I would not find
that the Respondent violated Section 8(a)(5) and (1)
4 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
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 Minne-
sota Council #65, American Federation of State,
County and Municipal Employees , 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 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 representa-
tive of all employees in the bargaining unit
described 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 agree-
ment . The bargaining unit is:
All full-time and regular part-time nurses
aides, housekeeping employees, laundry
employees, dietary employees, social activi-
ties aide, orderlies, and maintenance em-
ployees employed by the Employer at its
LaCrescent, Minnesota, facility; excluding
casual employees , temporary employees,
confidential employees, LPN's, RN's,
guards, and supervisors as defined in the
Act.
LACRESCENT CONSTANT
CARE CENTER, INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
LaCRESCENT CONSTANT CARE CENTER 675
days from the date of posting and must not be Board's Office, 316 Federal Building, 110 South
altered , defaced, or covered by any other material . Fourth Street, Minneapolis, Minnesota 55401, Tele-
Any questions concerning this notice or compli- phone 612-725-2611.
ance with its provisions may be directed to the