River Hills Nursing Home West

National Labor Relations Board - Board Decisions

Sep 30, 1981

258 N.L.R.B. 425 (N.L.R.B. 1981)

RIVER HILLS NURSING HOME WEST
American Medical Services, Inc. d/b/a River Hills
Nursing Home West and 119W, a Subdivision
of National Union of Hospital and Health Care
Employees (RWDSU/AFL-CIO). Case 30-
CA-6528
September 30, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
Upon a charge filed on June 1, 1981, by 1199W,
a Subdivision of National Union of Hospital and
Health Care Employees (RWDSU/AFL-CIO),
herein called the Union, and duly served on Ameri-
can Medical Services, Inc. d/b/a River Hills Nurs-
ing Home West, herein called Respondent, the
General Counsel of the National Labor Relations
Board, by the Regional Director for Region 30,
issued a complaint on June 25, 1981, 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 May 15,
1981, following a Board election in Case 30-RC-
3946, 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 June 1, 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 July 10, 1981, counsel for the General Coun-
sel filed directly with the Board a Motion for Sum-
mary Judgment. Subsequently, on July 17, 1981,
the Board issued an order transferring the proceed-
ing to the Board and a Notice To Show Cause
why the General Counsel's Motion for Summary
Judgment should not be granted. Respondent
'Official notice is taken of the record in the representation proceeding,
Case 30-RC-3946, 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 (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.
258 NLRB No. 57
thereafter filed a statement in opposition to the
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 in response to
the Notice To Show Cause, Respondent admits
that it refused the Union's request to bargain with
it as the exclusive bargaining representative of a
unit comprised of Respondent's full-time and regu-
lar part-time registered nurses. In defense of its
conduct, Respondent contests the validity of the
certification issued by the National Labor Relations
Board. Specifically, Respondent argues that the
unit employees are supervisors within the meaning
of Section 2(11) of the Act, and are therefore
exempt from coverage under the Act. The General
Counsel asserts that Respondent improperly seeks
to relitigate issues which were raised and decided
in the representation case. We agree with the Gen-
eral Counsel.2
A review of the record, including the record in
Case 30-RC-3946 reveals that, following a hearing
on the Union's petition, during which Respondent
was accorded full opportunity to be heard, to in-
troduce evidence, and to file briefs, the Acting Re-
gional Director issued a Decision and Direction of
Election on April 9, 1981. Respondent thereafter
filed a timely request for review and supporting
brief with the Board. By telegram dated May 7,
1981, the Board denied Respondent's request for
review because it raised no substantial issues war-
ranting review. On the same day, an election was
conducted which resulted in nine votes for, and
eight votes against, the Union, with no challenged
ballots. On May 15, 1981, the Regional Director
2 In its statement in opposition to the Motion for Summary Judgment,
Respondent urges that a finding of nonsupervisory status on the part of
the registered nurses at issue would be contrary to recent Board prece-
dent set by Wright Memorial Hospital, 255 NLRB No. 173 (1981), and by
Clark Manor Nursing Home Corp., 254 NLRB 455 (1981). Both Decisions
cited, however, differ from this case. In both Wright Memorial and Clark
Manor the Board relied on the fact that the RNs in question meted out
discipline and made assignments without consulting their superiors. That
they also represented the highest authority on the premises during certain
shifts was significant, but only when considered in conjunction with their
authority to administer discipline independent of any higher authority. In
the underlying representation case here, the record supports the Acting
Regional Director's finding that the RNs at Respondent's facility do not
possess the same independent discretionary disciplinary authority pos-
sessed by the nurses in Wright Memorial or Clark Manor. In the absence
of such primary evidence of statutory supervisory authority, the fact that
the RNs are the highest ranking employees during certain work shifts is
not determinative.
425
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
certified the Union as the exclusive bargaining rep-
resentative of the unit employees.
At a meeting on June 1, 1981, the Union request-
ed that Respondent commence bargaining with re-
spect to the unit of registered nurses. Respondent
refused to do so, and informed the Union that it in-
tended not to honor the certification. Thereafter,
on June 1, 1981, the Union filed an unfair labor
practice charge, to which Respondent replied by
letter dated June 8, 1981, that it would continue to
refuse to bargain with the Union concerning the
unit of registered nurses.
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. 3
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
I. THE BUSINESS OF RESPONDENT
Respondent, a Wisconsin corporation, is engaged
in providing nursing home services at its facility lo-
cated in Pewaukee, Wisconsin. In the course and
conduct of its business operations within the State
of Wisconsin, Respondent had gross revenues in
excess of $100,000, and purchased goods valued in
excess of $50,000 from suppliers located outside the
State of Wisconsin.
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
1199W, a Subdivision of National Union of Hos-
pital and Health Care Employees (RWDSU/AFL-
3 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 102.6 9(c)
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 full-time and regular part-time Registered
Nurses employed by the Employer at its River
Hills West facility located at 321 Riverside
Drive, Pewaukee, Wisconsin, excluding man-
agerial employees, confidential employees,
guards and supervisors as defined in the Act,
and all other employees of the Employer and
of other employers.
2. The certification
On May 7, 1981, 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 30, 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 May 15, 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 June 1, 1981, and at all
times thereafter, the Union has requested Respond-
ent 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 1, 1981, 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 1, 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.
426
RIVER HILLS NURSING HOME WEST
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. American Medical Services, Inc. d/b/a River
Hills Nursing Home West, is an employer engaged
in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. 1199W, a Subdivision of National Union of
Hospital and Health Care Employees
(RWDSU/AFL-CIO), is a labor organization
within the meaning of Section 2(5) of the Act.
3. All full-time and part-time Registered Nurses
employed by the Employer at its River Hills West
Facility located at 321 Riverside Drive, Pewaukee,
Wisconsin, excluding managerial employees, confi-
dential employees, guards and supervisors as de-
fined in the Act, and all other employees of the
Employer and of other employers, constitute a unit
appropriate for the purposes of collective bargain-
ing within the meaning of Section 9(b) of the Act.
4. Since May 15, 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 June 1, 1981, 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, 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,
American Medical Services, Inc. d/b/a River Hills
Nursing Home West, Pewaukee, Wisconsin, its offi-
cers, 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 1199W, a Subdivi-
sion of National Union of Hospital and Health
Care Employees (RWDSU/AFL-CIO), as the ex-
clusive bargaining representative of its employees
in the following appropriate unit:
All full-time and part-time Registered Nurses
employed by the Employer at its River Hills
West facility located at 321 Riverside Drive,
Pewaukee, Wisconsin, excluding managerial
employees, confidential employees, guards and
supervisors as defined in the Act, and all other
employees of the Employer and of other em-
ployers.
(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:
427
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(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 Pewaukee, Wisconsin, facility
copies of the attached notice marked "Appendix." 4
Copies of said notice, on forms provided by the
Regional Director for Region 30, 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 30,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
' 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."
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 1199W, a Subdivision of National Union
of Hospital and Health Care Employees
(RWDSU/AFL-CIO), as the exclusive repre-
sentative 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 full-time and regular part-time Regis-
tered Nurses employed by the Employer at
its River Hills West facility located at 321
Riverside Drive, Pewaukee, Wisconsin, ex-
cluding managerial employees, confidential
employees, guards and supervisors as de-
fined in the Act, and all other employees of
the Employer and of other employers.
AMERICAN MEDICAL SERVICES, INC.
D/B/A RIVER HILLS NURSING HOME
WEST
428