San Jose Care and Guidance Center

National Labor Relations Board - Board Decisions

Apr 17, 1980

248 N.L.R.B. 1201 (N.L.R.B. 1980)

SAN JOSE CARE AND GUIDANCE CENTER 1201
Belcor, Inc. d/b/a San Jose Care and Guidance
Center and Hospital and Institutional Workers
Union, Local 250, Service Employees Interna-
tional Union, AFL-CIO. Case 32-CA-2367
April 17, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND TRUESDALE
Upon a charge filed on December 28, 1979, by
Hospital and Institutional Workers Union, Local
250, Service Employees International Union, AFL-
CIO, herein called the Union, and duly served on
Belcor, Inc., d/b/a San Jose Care and Guidance
Center, herein called Respondent, the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 32, issued a com-
plaint on January 11, 1980, against Respondent, al-
leging that Respondent had engaged in and was en-
gaging 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 Rela-
tions Act, as amended. Copies of the charge and
complaint and notice of hearing before an adminis-
trative 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 November
20, 1979, following a Board election in Case 32-
RC-701 the Union was duly certified as the exclu-
sive collective-bargaining representative of Respon-
dent's employees in the unit found appropriate;'
and that, commencing on or about December 18,
1979, 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 January
27, 1980, Respondent filed its answer to the com-
plaint admitting in part, and denying in part, the al-
legations in the complaint, and requesting that the
complaint be dismissed in its entirety.
On February 1, 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-
Official notice is taken of the record in the representation proceed-
ing, Case 32-RC-701, as the term "record" is defined in Secs. 102.68 and
10
2
.
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); Follertt Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91
(7th Cir. 1968); Sec. 9(d) of the NLRA, as amended.
248 NLRB No.153
mary Judgment should not be granted. Respondent
thereafter filed an opposition to the General Coun-
sel's Motion for Summary Judgement in response
to the Notice To Show Cause.
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
admits that it has failed and refused, and that it
continues to fail and refuse, to recognize or bargain
with the Union as the exclusive collective-bargain-
ing representative of the employees in the unit
found appropriate. However, Respondent denies
that the Union is the exclusive collective-bargain-
ing representative of the employees in the unit. In
this regard, Respondent asserts that the certifica-
tion of representative issued by the Board in Case
32-RC-701 was faulty, void, invalid, and contrary
to law.
The General Counsel argues that Respondent's
answer raises no bona fide or relevant issues of fact,
and that, in essence, Respondent's answer denies
only the legal conclusions to be drawn from the
factual allegations of the complaint admitted by
Respondent. Thus, the General Counsel argues that
there are no litigable issues warranting a hearing.
We agree with the General Counsel.
Review of the record herein, including the
record in the representation proceeding, Case 32-
RC-701, establishes that pursuant to a Stipulation
for Certification Upon Consent Election, approved
by the Regional Director for Region 32 on June 1,
1979, an election was conducted on July 6, 1979.
The tally was 32 votes for, and 7 votes against, the
Union, with 7 challenged ballots, an insufficient
number to affect the results of the election. There-
after, Respondent timely filed objections to con-
duct affecting the results of the election. Respon-
dent's objections alleged in substance that the
Board interfered with the fairness of the election
by confusing language and improper instructions
set forth in its notice of election and that the Board
agent at the election interfered with the fair oper-
ation of the election process, the fairness of the
voting procedures, and the secrecy of the ballots
by allowing nonvoters to remain in the voting
areas during election hours; by allowng excessive
numbers of people to loiter in the voting area
during election hours; by allowing intoxicated and/
or disruptive persons to remain in the voting area
during voting times; by allowing intoxicated per-
1202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sons to serve as election observers; by using signs
to designate the voting place, as well as notices of
election and ballots, which were unintelligible to
many voters; and by imporperly and unlawfullly
counting several ballots as "Yes" when in fact they
were not. Respondent's objections also alleged in
substance that the Union, by its agents and support-
ers, interfered with the fair operation of the elec-
tion by engaging in surveillance, or creating the
impression of surveillance, of the voting area
during election hours; by drugging or causing Re-
spondent's election observer to become intoxicated
and unable to perform his duties; by making mate-
rial misrepresentations of law and fact; by making
unlawful promises of benefits; by campaigning at or
near the polling area prior to and during the voting
period; and by promising reduction in or elimina-
tion of union initiation fees.
After investigating Respondent's objections, the
Acting Regional Director, on August 17, 1979,
issued his report and recommendations on objec-
tions, in which he found insufficient evidence of
any conduct that would warrant setting aside the
election, and thus recommended that Respondent's
objections be overruled in their entirety.
Thereafter, Respondent timely filed exceptions
and supporting brief to the Acting Regional Direc-
tor's report and recommendations on objections.
Therein, Respondent excepted to what it contend-
ed were numerous erroneous evidentiary findings
and legal conclusions in the report. In sum, Re-
spondent excepted generally to the Acting Region-
al Director's failure to sustain each of its objections
or, in the alternative, to his failure to direct a hear-
ing on the issues raised by the objections.
On November 20, 1979, the Board, after review-
ing the record in light of Respondent's exceptions
and supporting brief, issued its Decision and Certi-
fication of Representative, 2 in which it found that
Respondent's exceptions raised no material or sub-
stantial issues of law of fact which would warrant
reversal of the Acting Regional Director's recom-
mendations that Respondent's objections be over-
ruled in their entirety, or which would require a
further investigation or hearing. Thus, the Board
adopted the Acting Regional Director's findings
and recommendations and certified the Union as
the exclusive collective-bargaining representative
of the employees in question.
In its opposition to the General Counsel's
Motion for Summary Judgment, Respondent
renews the contentions it earlier put forth in sup-
port of its objections and exceptions to the Acting
Regional Director's report and recommendations
on objections. Thus, Respondent asserts that a
2 Not reported in volumes of Board Decisions.
number of substantial and material factual issues
remain unresolved, warranting an evidentiary hear-
ing thereon, and thus rendering summary judgment
inappropriate. In this regard, Respondent asserts
that the results of the election in Case 32-RC-701
were not a fair or accurate indication of employee
preference and that the outcome of the election
was unlawfully influenced by the actions of the
Union, the Board, and their representatives. Re-
spondent denies that it is in violation of Section
8(a)(5) and (1) of the Act, and requests that the
Board deny the General Counsel's Motion for
Summary Judgment. As indicated above, the Board
determined in its Decision and Certification of
Representative that there was no basis for revers-
ing the Acting Regional Director or conducting a
hearing on the issues raised by Respondent in its
objections, and Respondent has failed in support of
its position in the instant case to present any evi-
dence not previously considered by the Board in
the representation proceeding.
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 is now, and has been at all times ma-
terial herein, a California corporation engaged in
the operation of a nursing home facility in San
Jose, California. During the past 12 months, a rep-
resentative period, Respondent, in the course and
conduct of its business operations in San Jose, Cali-
fornia, derived gross revenues in excess of $100,000
and received revenues from Medi-Cal in excess of
$10,000.
:' 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)
SAN JOSE CARE AND GUIDANCE CENTER 1203
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.
1l. THE LABOR ORGANIZATION INVOLVED
Hospital and Institutional Workers Union, Local
250, Service Employees International Union, 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 full-time and regular part-time housekeep-
ing department employees, including house-
keepers, laundry workers and janitors; dietary
department employees, including cooks and
kitchen aides; and nursing department employ-
ees, including licensed vocational nurses, psy-
chiatric attendants and technicians, and activi-
ties assistants, employed by Respondent at its
San Jose, California facility; excluding all
other employees, registered nurses, charge
nurses, office clerical employees, professional
employees, guards and supervisors as defined
in the Act.
2. The certification
On July 6, 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 32, 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 November 20, 1979, and the Union continues to
be such exclusive representative within the mean-
ing of Section 9(a) of the Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about December 13, 1979,
and at all times thereafter, the Union has requested
Respondent to bargain collectively with it as the
exclusive collective-bargaining representative of all
the employees in the above-described unit. Corn-
mencing on or about December 18, 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
December 18, 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. Belcor, Inc., d/b/a San Jose Care and Guid-
ance Center is an employer engaged in commerce
1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
within the meaning of Section 2(6) and (7) of the
Act.
2. Hospital and Institutional Workers Union,
Local 250, Service Employees International Union,
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 housekeep-
ing department employees, including housekeepers,
laundry workers, and janitors; dietary department
employees, including cooks and kitchen aides; and
nursing department employees, including licensed
vocational nurses, psychiatric attendants and tech-
nicians, and activities assistants, employed by Re-
spondent at its San Jose, California, facility; exclud-
ing all other employees, registered nurses, charge
nurses, office clerical employees, professional em-
ployees, 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. Since November 20, 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 December 18, 1979,
and at all times thereafter, to bargain collectively
with the above-named labor organization as the ex-
clusive bargaining representative of all the employ-
ees of Respondent in the appropriate unit, Respon-
dent 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,
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,
Belcor, Inc., d/b/a San Jose Care and Guidance
Center, San Jose, 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 Insti-
tutional Workers Union, Local 250, Service Em-
ployees International Union, AFL-CIO, as the ex-
clusive bargaining representative of its employees
in the following appropriate unit:
All full-time and regular part-time housekeep-
ing department employees, including house-
keepers, laundry workers and janitors; dietary
department employees, including cooks and
kitchen aides; and nursing department employ-
ees, including lincensed vocational nurses, psy-
chiatric attendants and technicians, and activi-
ties assistants, employed by Respondent at its
San Jose, California facility; excluding all
other employees, registered nurses, charge
nurses, office clerical employees, professional
employees, 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 it San Jose, California, facility, copies
of the attached notice marked "Appendix." 4
Copies of said notice, on forms provided by the
Regional Director for Region 32, 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, de-
faced, or covered by any other material.
(c) Notify the Regional Director for Region 32,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Relations Board."
SAN JOSE CARE AND GUIDANCE CENTER 1205
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 Hotel and Institutional Workers Union,
Local 250, 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 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 full-time and regular part-time house-
keeping department employees, including
housekeepers, laundry workers and janitors;
dierary department employees, including
cooks and kitchen aides; and nursing depart-
ment employees, including licensed voca-
tional nurses, psychiatric attendants and te-
chinicians, and activities assistants, employed
by Respondent at its San Jose, California fa-
cility; excluding all other employees, regis-
tered nurses, charge nurses, office clerical
employees, professional employees, guards
and supervisors as defined in the Act.
BELCOR, INC. D/B/A SAN JOSE CARE
AND GUIDANCE CENTER