Cheviot Garden Convalescent Hospital

National Labor Relations Board - Board Decisions

Sep 30, 1981

258 N.L.R.B. 1289 (N.L.R.B. 1981)

CHEVIOT GARDEN CONVALESCENT HOSPITALI
Cheviot Garden Convalescent Hospital, Inc. d/b/a
Cheviot Garden Convalescent Hospital and
Hospital and Service Employees Union, Local
399, Service Employees International Union,
AFL-CIO. Case 31-CA-I 1196
September 30, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
Upon a charge filed on June 4, 1981, by Hospital
Service Employees Union, Local 399, Service Em-
ployees International Union, AFL-CIO, herein
called the Union, and duly served on Cheviot
Garden Convalescent Hospital, Inc. d/b/a Cheviot
Garden Convalescent Hospital, herein called Re-
spondent, the General Counsel of the National
Labor Relations Board, by the Regional Director
for Region 31, issued a complaint on June 17, 1981,
against Respondent, alleging that Respondent had
engaged in and was engaging in unfair labor prac-
tices 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 and the 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 March 13,
1981, following a Board election in Case 31-RC-
4893, the Union was duly certified as the exclusive
collective-bargaining representative of Respond-
ent's employees in the unit found appropriate: and
that, commencing on or about March 22, 1981, and
at all times thereafter, Respondent has refused, and
continues to date to refuse, to bargain collectively
with the Union as the exclusive bargaining repre-
sentative, although the Union has requested and is
requesting it to do so. On June 30, 1981, Respond-
ent filed its answer to the complaint admitting in
part, and denying in part, the allegations in the
complaint.
On August 4, 1981, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on August 12,
1981, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for Sum-
mary Judgment should not be granted. Respondent
()Official noticc is l;lkcrl (,f Ihe record ini the rprescnllalol prIcee.dilIg.
Case 31 RC 4803. ai the ternm "record" is defined iI Sccs 10)2 d i;,ic
10(2.
9
(g) of the Board' Rule, and Regulallonls. Scrics . as nmended See
1. I/ El rrIt orcm,n. I. 1, 66 NI RI) 98 13 967). enfd 388 2d 83 (4l1
Cir 1968) (,lden -Ige f icvraii ( 167 NI.R 151 ( I67l) cl enfd 415
F 2d 26 (5h Cir 1'69l: It. ,rpc (o \ Pcriel, . 260 IFSupp 571
(D.C.Va. 167); I',iTe C'(,r. Iht4 NI R 378 (1007). cnfdl 317 I- 2d 9)
(7th Cir 196): S l t)(d) of Ilc NLRA a' armeiildc
filed a response to the General Counsel's 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 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 does
not deny that it has refused to recognize, meet, and
bargain with the Union but it contests the validity
of the Board's certification by denying that a ma-
jority of the employees in the appropriate unit have
designated the Union as their collective-bargaining
representative. To that end, Respondent alleges as
an affirmative defense that the Union:
. . . obtained authorization cards for a show-
ing of interest by improperly promising to em-
ployees that an employee who signed the au-
thorization card would not be charged an initi-
ation fee....
In its response to the General Counsel's motion for
summary judgment, Respondent further argues
that, for the reasons it had earlier raised in its ex-
ceptions to the Regional Director's report in the
underlying representation proceeding, the election
should have been set aside.
Our review of the record herein, including the
record in Case 31-RC-4893, reveals that, on Octo-
ber 6, 1980, the Regional Director for Region 31
approved a Stipulation for Certification Upon Con-
sent Election entered into by Respondent and su-
pervision of the Regional Director for Region 31
among the employees in the unit found appropriate.
The tally of ballots indicated that, of approximately
50 eligible voters, 19 cast ballots for, and 11 cast
ballots against, the Union. There were six chal-
lenged ballots, an insufficient number to affect the
results of the election.
Thereafter, on December 2, 1980, Respondent
filed objections to the election in which it contend-
ed that the Union had "obtained authorization
cards for a showing of interest by improperly
promising to employees that an employee who
signed the authorization card would not be
charged initiation fees." On January 9, 1981, the
Regional Director in a report on objections recom-
mended overruling this objection and certifying the
Union as the exclusive bargaining representative of
the employees in the unit found appropriate. The
Regional Director concluded that the Union's so-
licitation of authorization cards did not run afoul of
the Supreme Court's decision in N.L.R.B. v. Stair
258 NLRB No. 177
1 28x
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Manufacturing Company, 414 U.S. 270 (1973). Fur-
ther, assuming arguendo any ambiguity in the
Union's original statement, the Regional Director
found that any such ambiguity was cured by later
statements. Lastly, the Regional Director conclud-
ed that an analysis of all the surrounding circum-
stances indicated that employees were unambi-
guously informed that the initiation fees were
waived in a manner consistent with Savair. On Jan-
uary 19, 1981, Respondent filed exceptions to the
Regional Director's report. On March 13, 1981, the
National Labor Relations Board issued a Decision
and Certification of Representative, adopting the
Regional Director's findings and recommendations
and certifying the Union as the exclusive collec-
tive-bargaining representative of the employees in
the appropriate bargaining unit.
As previously noted, Respondent, in its answer
and in its response to the Motion for Summary
Judgment, challenges the statements made by the
Union in obtaining authorization cards for a show-
ing of interest. This issue was considered and dis-
posed of in the underlying representation proceed-
ing.
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or spe-
cial circumstances a respondent in a proceeding al-
leging 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.2
All issues raised by Respondent in this proceed-
ing were or could have been litigated in the prior
representation proceeding, and 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
decision made in the representation proceeding. We
therefore find that Respondent has not raised any
issue which is properly litigable in this unfair labor
practice proceeding. Accordingly, we grant the
Motion for Summary Judgment.
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT 3
I. THE BUSINESS OF RESPONDENT
Respondent is a California corporation with an
office and principal place of business located in Los
: See Plotburgh Plate G/lav Co. .. .L.R.., 313 U.S. 146. 162 (1941);
Rules and Regulations of the Board, Sees. 102.67(n and 102.h9(c)
:' With respect to secs. 1. II, and III, A.I of the findings of fact set ut
hbelow. Respondent's answer neither admitted nor denied the complaint
allegationsl upon which these findings are based. Therefore. consistent
with Sec 102.20() of the Board's Rules and Regulation,, the rclesant conm-
plaint allegations are deemed admitted to e true. Similarly, wih regard
Io sees. III.A.2 and III.B below, Respondenl's denial of the underlyinig
Angeles, California, where it is engaged in the op-
eration of a nursing home. Respondent, in the
course and conduct of its business operations, annu-
ally purchases and receives goods or services
valued in excess of $5,000 directly from suppliers
outside the State of California. Respondent, in the
course and conduct of its business operations, annu-
ally derives gross revenues in excess of $100,000.
We find, on the basis of the foregoing, that Re-
spondent 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 ABOR ORGANIZATION INVOI.VED
Hospital and Service Employees Union, Local
399, Service Employees International Union, AFL-
CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
111. THE UNFAIR I.ABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All employees employed by the Employer at
its 3533 Motor Avenue, Los Angeles, Califor-
nia location, excluding all professional employ-
ees, office clerical employees, guards, and su-
pervisors as defined in the Act.
2. The certification
On November 25, 1980, a majority of the em-
ployees of Respondent in said unit, in a secret-
ballot election conducted under the supervision of
the Regional Director for Region 31, designated
the Union as their representative for the purpose of
collective bargaining with Respondent.
The Union was certified as the collective-bar-
gaining representative of the employees in said unit
on March 13, 1981, 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 March 24, 1981, and at
all times thereafter, the Union has requested Re-
complailt allegatilons rulns ol to the legal colnlulonl, therein and not
to the dlat's inlol\ ed
1290
CHEVIOT GARDEN CONVALESCENT HOSI'ITAI.
spondent to bargain collectively with it as the ex-
clusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about May 22, 1981, and continuing
at all times thereafter to date, Respondent has re-
fused, 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 Respondent has, since
May 22, 1981, and at all times thereafter, refused to
bargain collectively with the Union as the exclu-
sive representative of the employees in the appro-
priate 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.
IV. THE EFFECT OF THE UNFAIR .ABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with its oper-
ations described in section I, above, have a close,
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing 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 ap-
propriate unit will be accorded the services of their
selected bargaining agent for the period provided
by law, we shall construe the initial period of certi-
fication as beginning on the date Respondent com-
mences to bargain in good faith with the Union as
the recognized bargaining representative in the ap-
propriate 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 (5th Cir. 1964), cert. denied 379 U.S. 817;
Burnett Construction Company, 149 NLRB 1419,
1421 (1964), enfd. 350 F.2d 57 (lOth Cir. 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCI USIONS OF LAw
I. Cheviot Garden Convalescent Hospital, Inc.
d/b/a Cheviot Garden Convalescent Hospital is an
employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. Hospital and Service Employees Union, Local
399, Service Employees 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 3533 Motor Avenue, Los Angeles, California lo-
cation, excluding all professional employees, office
clerical employees, 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 March 13, 1981, 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 March 22, 1981, and
at all times thereafter, to bargain collectively with
the above-named labor organization as the exclu-
sive bargaining representative of all the employees
of Respondent in the appropriate unit, Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) of the
Act.
6. By the aforesaid refusal to bargain, Respond-
ent has interfered with, restrained, and coerced,
and is interfering with, restraining, and coercing,
employees in the exercise of the rights guaranteed
them in Section 7 of the Act, and thereby has en-
gaged 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
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 Re-
lations Board hereby orders that the Respondent,
Cheviot Garden Convalescent Hospital, Inc. d/b/a
Cheviot Garden Convalescent Hospital, Los Ange-
les, California, 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
conditions of employment with Hospital and Serv-
ice Employees Union, Local 399. Service Employ-
ees International Union. AFL-CIO, as the exclu-
1291
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sive bargaining representative of its employees in
the following appropriate unit:
All employees employed by the Employer at
its 3533 Motor Avenue, Los Angeles, Califor-
nia location, excluding all professional employ-
ees, office clerical employees, guards, and su-
pervisors 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 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 understanding is reached, embody such under-
standing in a signed agreement.
(b) Post at its facility in Los Angeles, California,
copies of the attached notice marked "Appendix." 3
Copies of said notice, on forms provided by the
Regional Director for Region 31, 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 Re-
spondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 31,
in writing, within 20 days from the date of this
3 In the eent 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 "osted Pursu-
ant to a Judgment of the United States Court of Appeals Enfrcilg an
Order of the National Labor Relations Board."
Order, what steps have been taken to comply here-
with.
APPENDIX
NOTICE To EMPLOYEIES
POSTED BY ORDER OF THE
NATIONAL LABOR REIL.ATIONS 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 Hospital and Service Employees Union,
Local 399, Service Employees International
Union, AFL-CIO, as the exclusive representa-
tive of the employees in the bargaining unit
described below.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees 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 repre-
sentative of all 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 3533 Motor Avenue, Los Angeles,
California location, excluding all profession-
al employees, office clerical employees,
guards, and supervisors as defined in the
Act.
CHEVIOT GARDEN CONVALESCENT
HOSPITAL, INC. D/B/A CHEVIOT
GARDEN CONVALESCENT HOSPITAL
1292