Hy-Lond Convalescent Hospital

National Labor Relations Board - Board Decisions

Apr 24, 1980

248 N.L.R.B. 1372 (N.L.R.B. 1980)

1372 LDECISIONS ()F NATIONAL L.AHOR RELATIONS BOARD
Consolidated Liberty, Inc. d/b/a Hy-Lond Convales-
cent Hospital and Service Employees Interna-
tional Union, Local 22, SEIU, AFL-CIO. Case
20-CA- 15055
April 24, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND TRUESDALE
Upon a charge filed on December 28, 1979, by
Service Employees International Union, Local 22,
SEIU, AFL-CIO, herein called the Union, and
duly served on Consolidated Liberty, Inc. d/b/a
Hy-Lond Convalescent Hospital, herein called Re-
spondent, the General Counsel of the National
Labor Relations Board, by the Regional Director
for Region 20, issued a complaint on January 9,
1980, 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 and 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 September
13, 1979, following a Board election in Case 20-
RC-14774, the Union was duly certified as the ex-
clusive collective-bargaining representative of Re-
spondent's employees in the unit found appropri-
ate;' and that, commencing on or about October
16, 1979, and at all times thereafter, Respondent
has refused, and continues to date to refuse, to bar-
gain collectively with the Union as the exclusive
bargaining representative, although the Union has
requested and is requesting it to do so. On January
22, 1980, Respondent filed its answer to the com-
plaint admitting in part, and denying in part, the al-
legations in the complaint.
On February 4, 1980, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on February 6,
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 Sum-
mary Judgment should not be granted. Respondent
thereafter filed an opposition to the General Coun-
I Official notice is taken of the record in the representation proceed-
ing, Case 20 RC-14774, as the term "record" is defined in Secs. 102.68
and 102.6
9
(g) of the Board's Rules and Regulations Series 8, as amended
See LTV Electrosystems. Inc., 166 NLRB 938 (1967), enfd 388 F2d 683
(4th Cir. 1968); Golden Age Beverage Co.., 167 NLRB 151 (1967), enfd 415
F.2d 26 (5th Cir. 1969); Intertype Co. . Pnello, 269 FSupp 573
(D.C.Va. 1967); Follel Corp., 164 NLRB 378 (1967), enfd. 397 F 2d 91
(7th Cir. 1968), Sec. 9(d) of the NLRA, as amended.
248 NLRB No. 180
sel's Motion for Summary Judgment. On March 3,
1980, the Union filed a response to the opposition
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 and response to
the Notice To Show Cause, Respondent admits the
refusal to recognize and bargain with the Union,2
but asserts that the Union's certification was im-
properly issued in Case 20-RC-14774. In this con-
nection, Respondent asserts, inter alia, the outcome
of the election was unlawfully influenced by pree-
lection actions and statements of the Union and its
representatives, as well as by acts that took place
during the actual conduct of the election. Further,
Respondent asserts that objectionable conduct by
the Region, both prior to and during the election,
as well as the ballot count, substantially interfered
with the conduct and results of the election. Re-
spondent argues that substantial issues of fact
remain unresolved, and that it has been denied its
due process rights to an evidentiary hearing.
Our review of the record herein, including the
record in Case 20-RC-14774 reveals that, pursuant
to a Stipulation for Certification Upon Consent
Election, an election was conducted on May 17,
1979. Of the total number of votes cast, 32 wewre
for, and 29 against, the Union; there were 3 void
ballots and 4 challenged ballots. The challenged
ballots were sufficient in number to affect the re-
sults of the election. On May 24, 1979, Respondent
filed objections to conduct affecting the results of
the election.
2 Respondent, in its answer, admits that it is a health care institution,
with an office and place of business in Sacramento, California, and that,
during the 12-month period ending December 31, 1979, it derived gross
revenues of $100,000 from these operations. Respondent denies that it
purchased and received at its Sacramento, California, facility products,
goods, and materials valued in excess of $5,000 directly from points out-
side the State of California However, it admits that it is now, and has
been at all times material herein, an employer engaged in commerce
within the meaning of Sec. 2(2), (6), and (7) of the Act. The General
Counlsel. in support of the complaint's commerce allegations, directs the
Board's attention to Respondent's admission of commerce facts in Case
20- RC 14774 There Respondent stipulated that it had received gross
revenues in excess of $200.000 and medical payments in excess of
$10,000. In its response to the Motion for Summary Judgment, Respon-
dent asserts that its answer to the complaint is not inconsistent with its
stipulation in the representation proceeding In view of its admission that
it is an employer engaged i commerce within the meaning of Sec. 2(2),
(6), and (7) of the Act, and its statement that its answer is not inconsistent
with its stipulation in Case 20-RC 14774, we find that no issue with re-
spect to jurisdiction has been raised.
HY-LOND CONVALESCENT HOSPITAL 1373
On June 26, 1979, the Regional Director for
Region 20 issued her Report on Objections and
Challenged Ballots in which she recommended that
the Board overrule the objections in their entirety,
that the challenges to three ballots be sustained and
the challenged fourth ballot remain unopened since
it would not affect the results of the election, and
that a certification of representative be issued to
the Union. Respondent filed limited exceptions to
the Regional Director's Report on Objections and
Challenged Ballots essentially reiterating its objec-
tions, arguing that the election should be set aside
and a second one directed or, alternatively, the
case should be remanded to the Regional Director
for a full evidentiary hearing on the objections. On
September 13, 1979, the Board issued its Decision
and Certification of Representative 3 in which it
adopted the Regional Director's findings and rec-
ommendations. 4
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 proceedings
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.6
On the basis of the entire record, the Board
makes the following:
a Not reported in volumes of Board Decisions
Thus, it is clear that the Board found that Respondent's objections
and contentions did not raise substantial or material issues of fact or law
requiring a hearing. CSC Oil Companvy, 220 NLRB 19 (1975).
s 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 10 2.69(c)
6 Therein the Union requested that the Board award attorney's fees
and litigation costs against Respondent on the basis of iidee Products,
Inc., 194 NLRB 1234 (1972), enfd. as modified 502 F.2d 349 (D C Cir
1974), cert. denied 421 U.S. 991 (1975). We deny the Union's request for
attorney's fees and litigation costs. inasmuch as the defense raised by Re-
spondent is not frivolous, and therefore such a specific remedy is not
warranted. See Anheuser-Busch, Inc., 237 NLRB No. 146 (1978) Blumen-
feld Theatres Circuit. 4 Partnership, Blumenfeld Enterprises. .4 Dison f
Cinerama, Inc.: Roxie Oakland 7'heatre, 4 Partnership. 240 NLRB No 1
(1979)
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is a California corporation engaged
as a health care institution in the operation of a
hospital providing in-patient and out-patient medi-
cal and professional care services for the general
public. During the 12-month period ending Decem-
ber 31, 1979, Respondent derived gross revenue in
excess of $100,000 from these operations.
Respondent admits, and we find, that it is, and
has been at all times material herein, an employer
engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act. We find that it will
effectuate the policies of the Act to asert jurisdic-
tion herein.
II. THE LABOR ORGANIZATION INVOLVED
Service Employees International Union, Local
22, SEIU, 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 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
Hy-Lond Convalescent Hospital, including
LVN's, nursing assistants, therapy aides, other
nursing personnel, laundry department em-
ployees, maintenance department employees,
housekeeping department employees, dietary
staff employees, medical records personnel and
hospital reception employees; excluding all
other employees, registered nurses, charge
nurses, office employees, guards and supervi-
sors as defined in the Act.
2. The certification
On May 17, 1979, 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 20, 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 September 13, 1979, and the Union continues to
be such exclusive representative within the mean-
ing of Section 9(a) of the Act.
1374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about October 4, 1979, and
at all times thereafter, the Union has requested Re-
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 October 16, 1979, and con-
tinuing at all times thereafter to date, Respondent
has refused, and continues to refuse, to recognize
and bargain with the Union as the exclusive repre-
sentative for collective bargaining of all employees
in said unit.
Accordingly, we find that Respondent has, since
October 16, 1979, and at all times thereafter, re-
fused to bargain collectively with the Union as the
exclusive representative of the employees in the ap-
propriate 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 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).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Consolidated Liberty, Inc. d/b/a Hy-Lond
Convalescent Hospital is an employer engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Service Employees International Union, Local
22, SEIU, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. All employees employed by the Employer at
Hy-Lond Convalescent Hospital, including LVN's,
nursing assistants, therapy aides, other nursing per-
sonnel, laundry department employees, mainte-
nance department employees, housekeeping depart-
ment employees, dietary staff employees, medical
records personnel, and hospital reception employ-
ees; excluding all other employees, registered
nurses, charge nurses, office employees, guards and
supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargain-
ing within the meaning of Section 9(b) of the Act.
4. Since September 13, 1979, 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 October 16, 1979, 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, 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,
Consolidated Liberty, Inc. d/b/a Hy-Lond Conva-
lescent Hospital, Sacramento, California, its offi-
cers, agents, successors, and assigns, shall:
1. Cease and desist from:
HY-LOND CONVALESCENT HOSPITAL 1375
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment with Service Employees
International Union, Local 22, SEIU, AFL-CIO,
as the exclusive bargaining representative of its em-
ployees in the following appropriate unit:
All employees employed by the Employer at
Hy-Lond Convalescent Hospital, including
LVN's, nursing assistants, therapy aides, other
nursing personnel, laundry department em-
ployees, maintenance department employees,
housekeeping department employees, dietary
staff employees, medical records personnel and
hospital reception employees; excluding all
other employees, registered nurses, charge
nurses, office employees, guards and supervi-
sors 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 Sacramento, California,
copies of the attached notice marked "Appendix." 7
Copies of said notice, on forms provided by the
Regional Director for Region 20, 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-
7 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 Pur-
suant To A Judgment Of The United States Court Of Appeals Enforcing
An Order Of The National Relations Board "
dent to insure that said notices are not altered, de-
faced, or covered by any other material.
(c) Notify the Regional Director for Region 20,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
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 Service Employees International Union,
Local 22, SEIU, AFL-CIO, as the exclusive
representative of the employees in the bargain-
ing 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 employees employed by the Employer
at Hy-Lond Convalescent Hospital, includ-
ing LVN's, nursing assistants, therapy aides,
other nursing personnel, laundry department
employees, maintenance department employ-
ees, housekeeping department employees, di-
etary staff employees, medical records per-
sonnel and hospital reception employees; ex-
cluding all other employees, registered
nurses, charge nurses, office employees,
guards and supervisors as defined in the Act.
CONSOIIDATED LIBERTY, INC. D/B/A
HY-LOND CONVALESCENT HOSPITAL