Frostburg Village of Allegany County

National Labor Relations Board - Board Decisions

Jan 14, 1981

254 N.L.R.B. 223 (N.L.R.B. 1981)

FROSTBURG VILLAGE OF ALLEGANY COUNTY
Tressler Lutheran Home for Children t/a Frostburg
Village of Allegany County Nursing Home and
Retail Store Employees Union, Local 692,
United Food and Commercial Workers Interna-
tional Union, AFL-CIO, CLC. Case 5-CA-
12306
January 14, 1981
DECISION AND ORDER
Upon a charge filed on June 13, 1980, by Retail
Store Employees Union, Local 692, United Food
and Commercial Workers International Union,
AFL-CIO, CLC, herein called the Union, and
duly served on Tressler Lutheran Home for Chil-
dren t/a Frostburg Village of Allegany County
Nursing Home, herein called Respondent, the Gen-
eral Counsel of the National Labor Relations
Board, by the Regional Director for Region 5,
issued a complaint on July 11, 1980, against Re-
spondent, 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 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 April 15,
1980, following a Board election in Case 5-RC-
11044, the Union was duly certified as the exclu-
sive collective-bargaining representative of a unit
of Respondent's service and maintenance employ-
ees; and that, commencing on or about June 9,
1980, and at all times thereafter, Respondent has
refused, and continues to date to refuse, to bargain
collectively with the Union as the exclusive bar-
gaining representative, although the Union has re-
quested and is requesting it to do so. On July 18,
1980, Respondent filed its answer to the complaint
admitting in part, and denying in part, the allega-
tions in the complaint.
On September 12, 1980, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment, with exhibits attached. Subse-
quently, on September 22, 1980, 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 should
not be granted. Respondent thereafter filed a re-
sponse to Notice To Show Cause. On October 27,
1980, counsel for the General Counsel filed directly
with the Board a Motion To Amend Complaint
and Motion for Summary Judgment in which he
moved that the complaint be amended to allege,
inter alia, that on August 26, 1980, following a
254 NLRB No. 15
Board-conducted election in Case 5-RC-11204, the
Union's certification was amended to include Re-
spondent's technical employees including licensed
practical nurses.' Copies of the motion to amend
were duly served on the parties to this proceed-
ing. 2
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 response to the Notice To Show Cause,
Respondent admits that it refused to meet and bar-
gain with the Union. In support of its refusal to
bargain, Respondent attacks the Union's certifica-
tion on the grounds that the Board's exercise of ju-
risdiction over Respondent in the underlying repre-
sentation proceeding was improper and that the
Regional Director erred in overruling its objections
to the election in the underlying representation
proceeding in Case 5-RC-1 1044.
Review of the record herein, including the re-
cords in Cases 5-RC-11044 and 5-RC-11204, re-
veals that after a hearing in Case 5-RC-11044, the
Regional Director for Region 5, on December 13,
1979, issued a Decision and Direction of Election
finding, inter alia, that the Board would not refuse
to assert jurisdiction over Respondent because of
its affiliation with the Lutheran Church of Amer-
ica. Thereafter, Respondent filed with the Board
timely request for review of the Regional Direc-
tor's Decision in which it reiterated the arguments
previously rejected by the Regional Director that
the assertion of the Board's jurisdiction violates the
first amendment of the United States Constitution.
On January 10, 1980, the Board denied Respond-
ent's request for review.
Thereafter, on January 16, 1980, an election was
conducted which resulted in a vote of 64 for, and
51 against, the Union, with I challenged ballot.
Subsequently, Respondent filed timely objections
to the election. The objections alleged, in sub-
' Official notice is taken or the record in the representation proceed-
ing, Cases 5-RC-1 1044 and 5-RC-1 1204, as the term "record" is defined
in Sees. 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 (4th Cir, 1968); Golden Age Beverage Co., 167 NLRB 151
(1967), enfd. 415 F.2d 26 (5th Cir. 1969); Intertype Co. v. Penello, 269
F.Supp. 573 (D.C.Va. 1967); Follett Corp., 164 NLRB 378 (1967), enfd.
397 F.2d 91 (7th Cir. 1968); Sec. 9(d) of the NLRA, as amended.
2 Counsel for the General Counsel's motion to amend, which seeks to
amend the complaints to allege matters of which we in any event would
take official notice, is hereby granted.
- -
223
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stance, that: (1) the Union distributed campaign lit-
erature which departed from "preelection fair prac-
tice guidelines" insofar as it stated that Respondent
"continually lied and misrepresented the truth" to
its employees; (2) the Union circulated a question-
naire to employees which created an environment
of coercion; (3) the Union misrepresented to em-
ployees that a vote for the Union would guarantee
them certain benefits; (4) the Union made represen-
tations concerning union dues; (5) prounion em-
ployees verbally abused and intimidated employees
who did not actively support the Union; (6) proun-
ion employees misrepresented to other employees
that the latter's failure to sign union cards prior to
the date of the election would render them ineligi-
ble to vote at the time of the election; and (7)
prounion employees announced that certain em-
ployees who did not cast votes for the Union
would lose their jobs after the Union won the elec-
tion.
After an investigation, the Regional Director on
April 15, 1980, issued a Supplemental Decision and
Certification of Representative in Case 5-RC-
11044 in which he overruled Respondent's objec-
tions in their entirety and issued a Certification of
Representative. Thereafter, Respondent filed with
the Board a timely request for review of the Re-
gional Director's Supplemental Decision in which
it contended that he erred in overruling certain of
its objections to the election. On June 3, 1980, the
Board denied Respondent's request for review.
Subsequently, on June 12, 1980, the Regional Di-
rector issued a Decision and Direction of Election
in Case 5-RC-11204 in which he directed an elec-
tion in a unit of Respondent's technical employees,
including licensed practical nurses. He further pro-
vided that if a majority of the employees voted in
favor of representation by the Union, they would
be deemed to have manifested their desire to be in-
cluded in the existing service and maintenance unit
certified in Case 5-RC-11044. On July 10, 1980,
the Board denied Respondent's request for review
of the Regional Director's Decision and Direction
of Election, in which Respondent, inter alia, con-
tended that assertion of the Board's jurisdiction
was improper. Thereafter, an election was conduct-
ed on July 16, 1980, which resulted in a vote of 6
for, and 2 against, representation by the Union in
the existing service and maintenance unit. There
were no challenged ballots. Thereafter, on August
26, 1980, the Regional Director issued a Supple-
mental Decision and Certification of Representa-
tive in which Respondent's objections to the elec-
tion were overruled in their entirety and the exist-
ing service and maintenance unit previously certi-
fied was amended to include all full-time and regu-
lar part-time technical employees, including li-
censed practical nurses. Respondent did not file a
request for review of the Regional Director's Sup-
plemental Decision and Certification of Representa-
tive.
Respondent's contentions in this unfair labor
practice proceeding are essentially the same as
those advanced in the underlying representation
cases which the Board has previously considered
and rejected. 3 It thus appears that Respondent is
attempting in this proceeding to relitigate issues
which were fully litigated in the representation
proceedings.
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.4
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
1. THE BUSINESS OF RESPONDENT
Respondent, a nonprofit corporation organized
under the laws of the Commonwealth of Pennsyl-
vania, is engaged as a health care institution in the
operation of a nursing home in Frostburg, Mary-
land. During the 12 months preceding issuance of
the complaint, a representative period, Respondent,
in the course and conduct of its operations, re-
ceived gross revenues in excess of $100,000 and
purchased and received, in interstate commerce,
products valued in excess of $50,000 directly from
points located outside the State of Maryland.
s Respondent reiterates its contention that the Board is precluded from
asserting jurisdiction over it based on the Supreme Court's opinion in
N.L.R.B. v. Catholic Bishop of Chicago, et al., 440 U.S. 490 (1979). How-
ever, we have found Catholic Bishop distinguishable from cases, as here,
involving church-operated nursing homes and have asserted jurisdiction
over such enterprises. See, e.g., Mid American Health Services, Inc., 247
NLRB No. 109 (1980). See also Bon Secours Hospital, Inc., 248 NLRB
115 (1980).
4 See Pittsburgh Plate Glass Co. 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).
224
FROSTBURG VILLAGE OF ALLEGANY COUNTY
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 LABOR ORGANIZATION INVOLVED
Retail Store Employees Union, Local 692,
United Food and Commercial Workers Internation-
al Union, AFL-CIO, CLC, 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 Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All regular full-time and part-time service and
maintenance employees, nursing assistants,
physical therapy assistants, ward clerks, order-
lies, dietary employees, housekeeping and
laundry employees, maintenance employees
and technical employees including licensed
practical nurses employed by the Employer at
its Frostburg, Maryland, location, but exclud-
ing all other employees, office clerical employ-
ees, professional employees (including regis-
tered nurses not yet licensed), the assistant to
the activities director, the assistant to the
social case worker, guards and supervisors as
defined in the Act.
2. The certification
On January 16 and July 16, 1980, a majority of
the employees of Respondent in said unit, in secret-
ballot elections conducted under the supervision of
the Regional Director for Region 5, designated the
Union as their representative for the purpose of
collective bargaining with Respondent. The Union
was certified as the collective-bargaining represen-
tative of Respondent's service and maintenance em-
ployees on April 15, 1980. On August 26, 1980,
pursuant to the election of July 16, 1980, the
Union's Certification of Representative was amend-
ed to include all technical employees including li-
censed practical nurses. 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 June 9, 1980, and at all
times thereafter, the Union has requested Respon-
dent to bargain collectively with it as the exclusive
collective-bargaining representative of all the em-
ployees in the above-described unit. Commencing
on or about June 20, 1980, and continuing at all
times thereafter to date, 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 Respondent has, since
June 20, 1980, 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 LABOR
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 (10th Cir. 1965).
225
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Tressler Lutheran Home for Children t/a
Frostburg Village of Allegany County Nursing
Home is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. Retail Store Employees Union, Local 692,
United Food and Commercial Workers Internation-
al Union, AFL-CIO, CLC, is a labor organization
within the meaning of Section 2(5) of the Act.
3. All regular full-time and part-time service and
maintenance employees, nursing assistants, physical
therapy assistants, ward clerks, orderlies, dietary
employees, housekeeping and laundry employees,
maintenance employees and technical employees
including licensed practical nurses employed by the
Employer at its Frostburg, Maryland, location, but
excluding all other employees, office clerical em-
ployees, professional employees (including regis-
tered nurses not yet licensed), the assistant to the
activities director, the assistant to the social case
worker, guards and supervisors as defined in the
Act constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Sec-
tion 9(b) of the Act.
4. The above-named labor organization has been
and now is the certified and exclusive representa-
tive of all employees in the aforesaid appropriate
unit for the purpose of collective bargaining within
the meaning of Section 9(a) of the Act, pursuant to
its certification of April 15, 1980, as amended by its
certification of August 26, 1980.
5. By refusing on or about June 9, 1980, 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 prac-
tices 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,
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,
Tressler Lutheran Home For Children t/a Frost-
burg Village of Allegany County Nursing Home,
Frostburg, Maryland, its officers, agents, succes-
sors, 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 Retail Store Em-
ployees Union, Local 692, United Food and Com-
mercial Workers International Union, AFL-CIO,
CLC, as the exclusive bargaining representative of
its employees in the following appropriate unit:
All regular full-time and part-time service and
maintenance employees, nursing assistants,
physical therapy assistants, ward clerks, order-
lies, dietary employees, housekeeping and
laundry employees, maintenance employees
and technical employees, including licensed
practical nurses employed by the Employer at
its Frostburg, Maryland, location, but exclud-
ing all other employees, office clerical employ-
ees, professional employees (including regis-
tered nurses not yet licensed), the assistant to
the activities director, the assistant to the
social case worker, 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 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 Respondent's facility located at Frost-
burg, Maryland, copies of the attached notice
marked "Appendix." 5 Copies of said notice, on
forms provided by the Regional Director for
Region 5, after being duly signed by Respondent's
representative, shall be posted by Respondent im-
mediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices
s 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
226
FROSTBURG VILLAGE OF ALLEGANY COUNTY
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 5, 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 Retail Store Employees Union, Local
692, United Food and Commercial Workers
International Union, AFL-CIO, CLC, 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 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 represen-
tative 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 agreement. The bargaining unit is:
All regular full-time and part-time service
and maintenance employees, nursing assis-
tants, physical therapy assistants, ward
clerks, orderlies, dietary employees, house-
keeping and laundry employees, mainte-
nance employees and technical employees,
including licensed practical nurses employed
by the Employer at its Frostburg, Maryland,
location, but excluding all other employees,
office clerical employees, professional em-
ployees (including registered nurses not yet
licensed), the assistant to the activities direc-
tor, the assistant to the social case worker,
guards and supervisors as defined in the Act.
TRESSLER LUTHERAN HOME FOR
CHILDREN T/A FROSTBURG VILLAGE
OF ALLEGANY COUNTY NURSING
HOME
227