Suncoast Manor

National Labor Relations Board - Board Decisions

Sep 30, 1981

258 N.L.R.B. 1279 (N.L.R.B. 1981)

SLNC()AST MANOR
The Episcopal Community of St. Petersburg, d/b/a
Suncoast Manor and United Food and Commer-
cial Workers Local 1776, Professional and
Health Care Division, United Food and Com-
mercial Workers International Union, AFL-
CIO-CLC. Case 12-CA-9764
September 30, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JNKINS, AND
ZIMMERMAN
Upon a charge filed on June 29, 1981, by United
Food and Commercial Workers Local 1776, Pro-
fessional and Health Care Division, United Food
and Commercial Workers International Union,
AFL-CIO-CLC, herein called the Union, and duly
served on The Episcopal Community of St. Peters-
burg, d/b/a Suncoast Manor, herein called Re-
spondent, the General Counsel of the National
Labor Relations Board, by the Regional Director
for Region 12, issued a complaint on July 21, 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 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 19,
1981, following a Board election in Case 12-RC-
6062, 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 19, 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 July 30, 1981, Respond-
ent filed its answer to the complaint admitting in
part, and denying in part, the allegations in the
complaint.
Official notice is taken of the record in the representation proceeding.
Case 12-RC-6062, 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 In
addition. the General Counsel requests that we take official notice of the
record in Case 12-RC-5852: the correct citation. howsever. is Case 12-
RC-5736h, a case relied upon by the Regional Director in his Decision
and Direction of Election in Case 12-RC-6062. Accordingl. official
notice is also taken of the record in Case 12 RC-5736 See I lEtro-
yorrm. Inc.. Ihh NLRR 938 (19h67), enfd . 388 F.2d 683 (4th Cir 19n08
Golden ,,ge Bvrage Co.. 167 NLRH 151 (1967). enfd 415 F2d 26 (5th
Cir. 1969) Ilrreryp Co . . Pencilo. 269 F Supp 573 (D.C V; 14h7).: I-b-
le'I Corp., 164 NLRB 378 (1967). enfd 397 F2d 91 (7th Cir 19h68): S,.
9(d) of the NLRA, a amended
258 NLRB No. 174
On August 12, 1981. counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on August 27,
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
did not file an answer 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
denies substantially all the material allegations of
the complaint other than the facts concerning the
nature of its business operations and that the Union
on May 21, 1981, made a request to bargain. Re-
spondent further states in its answer to the com-
plaint that it is without knowledge to form a basis
of belief as to the truth of the General Counsel's
allegations that (1) the Union filed a charge on
June 29, 1981, and that a copy thereof was served
on Respondent and (2) the Union is a labor organi-
zation within the meaning of Section 2(5) of the
Act. As an affirmative defense, Respondent con-
tends that (I) the certification issued in the under-
lying representation proceeding is in error and (2)
the unit certified is inappropriate because it ex-
cludes certain dietary department employees which
contravenes the congressional mandate against
undue proliferation of health care bargaining units.
The General Counsel contends that Respondent:
(a) raises no issues which have not been litigated
and determined by the Board in the underlying
representation proceeding; or (b) raises matters
which are conclusively proven by exhibits attached
to the Motion for Summary Judgment. We agree
with the General Counsel.
Our review of the record here, including the
record in Case 12-RC-6062, discloses that the
Union sought to represent a unit of all full-time and
regular part-time nurses aides, housekeeping em-
ployees, building maintenance employees, and
grounds maintenance employees employed by The
Episcopal Community of St. Petersburg d/b/a Sun-
coast Manor. Following a hearing in the underly-
ing representation proceeding, the Regional Direc-
tor for Region 12 issued his Decision and Direction
of Election on April 9, 1981. In that decision, he
found the requested unit appropriate, and, contrary
to Respondent's position, excluded certain dietary
1279
DECISIONS OF NATIONAL LABOR RELATIONS HOARD
department employees based on his determination
in Case 12-RC-5736 and the fact that certain
changes in Respondent's dietary operations since
the earlier decision were insufficient to warrant a
different result. Respondent filed a request for
review of the Regional Director's decision with the
Board in Washington, D.C., contending that the
Regional Director erred in excluding dietary de-
partment employees from the above-described unit.
The Board, by telegraphic order dated May 7,
1981, denied Respondent's request for review.
On May 8, 1981, an election was held. Of the
total votes cast, 47 were for the Union, 35 were
against, and there were no challenged ballots. On
May 19, 1981, the Regional Director certified the
Union as the exclusive collective-bargaining repre-
sentative of the employees in the unit found appro-
priate. By letter dated May 21, 1981, the Union re-
quested collective-bargaining negotiations with Re-
spondent.
As noted, Respondent in its answer to the com-
plaint denied the material allegations of the com-
plaint. Specifically, Respondent denied the factual
allegations of paragraphs 2(b) and (c) of the com-
plaint which essentially state that Respondent has
been at all material times herein an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act. In rejecting this contention,
we note that Respondent stipulated in the underly-
ing representation hearing held in Case 12-RC-
6062 that its operations are essentially the same as
they were when the decision in Case 12-RC-5736
issued in which Respondent was found to be an
employer within the meaning of the Act. We find
that this conclusively establishes that Respondent is
an employer within the meaning of the Act.
We also reject Respondent's denial of the facts in
paragraph 5 of the complaint alleging essentially
that the Regional Director conducted an election
on May 8, 1981, that a majority of the voting em-
ployees in the unit selected the Union, and that the
Union was certified. General Counsel's Exhibits 4,
5, and 6 which are respectively the Tally of Bal-
lots, Certification of Conduct of Election, and Cer-
tification of Representative establish the facts al-
leged in paragraph 5 of the complaint. Respondent
has submitted nothing to controvert these docu-
ments or their contents. Accordingly, we deem the
allegations in paragraph 5 of the complaint to be
true.
Respondent further denies the allegation of para-
graph 7 of the complaint which essentially alleges
that Respondent has refused to recognize and bar-
gain with the Union. because Respondent chal-
lenges the procedures in the underlying representa-
tion case which resulted in the Union's certifica-
tion. The General Counsel submitted with his
Motion for Summary Judgment Exhibit 13 which
is a copy of Respondent's letter to the Union, dated
June 29, 1981, informing the Union that it would
not comply with the Union's May 21, 1981, request
to bargain. Respondent has submitted nothing to
controvert this document or its contents. Accord-
ingly, we deem the allegation in paragraph 7 of the
complaint to be true.2
In addition, we find no merit to Respondent's as-
sertion that it was without sufficient knowledge to
form a basis of belief as to the truth of the allega-
tions contained in paragraphs 1 and 3 of the com-
plaint which essentially allege that (1) the Union
filed a charge on June 29, 1981, which was served
on Respondent on or about the date and (2) the
Union is a labor organization within the meaning of
Section 2(6) and (7) of the Act. The General Coun-
sel attached to his Motion for Summary Judgment
Exhibits 7 and 8 which are copies of the charge as
filed and subsequent service thereof. Respondent
has submitted nothing which controverts these
documents or their contents. Accordingly, we
deem the allegations in paragraph I of the com-
plaint to be true. We also reject Respondent's
denial of the allegations contained in paragraph 3
of the complaint on grounds that Respondent stipu-
lated that the Union is a labor organization within
the meaning of Section 2(5) of the Act in the prior
representation proceeding, the Regional Director
so found in his Decision and Direction of Election,
and Respondent has proffered no evidence raising a
doubt as to the status of the labor organization.
Finally, with respect to Respondent's affirmative
defenses that the unit is inappropriate and that the
exclusion of certain dietary department employees
from the unit is improper and constitutes an undue
proliferation of health care bargaining units, the
record establishes that Respondent raised these ar-
guments in the underlying representation case, and
they were previously determined in that proceed-
ing. Thus, Respondent is now attempting to reliti-
gate those issues.
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
i he complaint inadvercntlly allegce the date or refusal ais June 19
rather than the correcl dale of June 29. 1981.
' See Pittsurgh Plote Glu: (C, v..VI..R.H. 313 US.S 146. 62 (1941.
Rules anillld RHgulitiols of the li;lrd. Sec,. 102.67(f) and 102 6h(c).
1 280()
SUNCOAST MANOR
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
The Episcopal Community of St. Petersburg,
d/b/a Suncoast Manor, is engaged in the operation
of a private retirement community which provides,
among other things, nursing home and health care
services at its St. Petersburg, Florida, facility.
During the past 12 months, a representative
period, Respondent received gross revenues in
excess of $500,000 and purchased and received
goods, services, and materials valued in excess of
$50,000 from suppliers located within the State of
Florida, which goods, services, and materials were,
in turn, shipped directly to those suppliers from
outside the State of Florida.
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
United Food and Commercial Workers Local
1776, Professional and Health Care Division,
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.
111. 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 nurse's
aides, housekeeping employees, building main-
tenance employees and grounds maintenance
employees employed by the Employer at its
St. Petersburg, Florida, facility; excluding all
registered nurses, licensed practical nurses, di-
etary department employees employed by
ARA Hospital Food Management, Inc., guards
and supervisors as defined in the Act.
2. The certification
On May 8, 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 12, 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 19, 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 Respondents
Refusal
Commencing on or about May 21, 1981, 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 June 29, 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
June 29, 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 (I)
of the Act.
IV. THI 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. THI RMEDY
Having found that Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (I) of the Act. we
shall order that it cease and desist therefrom. and,
1281
DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
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. The Episcopal Community of St. Petersburg,
d/b/a Suncoast Manor, is an employer engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act.
2. United Food and Commercial Workers Local
1776, Professional and Health Care Division,
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 full-time and regular part-time nurses
aides, housekeeping employees, building mainte-
nance employees, and grounds maintenance em-
ployees employed by Respondent at its St. Peters-
burg, Florida, facility, excluding all registered
nurses, licensed practical nurses, dietary depart-
ment employees employed by ARA Hospital Food
Management, Inc., 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 May 19, 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 29, 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)(l) 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,
The Episcopal Community of St. Petersburg, d/b/a
Suncoast Manor, St. Petersburg, Florida, 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 United Food and
Commercial Workers Local 1776, Professional and
Health Care Division, United Food and Commer-
cial Workers International Union, AFL-CIO-CLC,
as the exclusive bargaining representative of its em-
ployees in the following appropriate unit:
All full-time and regular part-time nurse's
aides, housekeeping employees, building main-
tenance employees and grounds maintenance
employees employed by the Employer at its
St. Petersburg, Florida, facility; excluding all
registered nurses, licensed practical nurses, di-
etary department employees employed by
ARA Hospital Food Management, Inc., 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 its St. Petersburg, Florida, facility
copies of the attached notice marked "Appendix." 4
' I1 the evenl that this Order is enfiorced by a Judgment of a United
Slates Courtl ,f Appeals. the swords in the notice reading "Posted by
Continuyd/
1282
SUNCOAST MANOR
Copies of said notice, on forms provided by the
Regional Director for Region 12, 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 12,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment or 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 United Food and Commercial Workers
Local 1776, Professional and Health Care Di-
vision, 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 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 nurse's
aides, housekeeping employees, building
maintenance employees and grounds mainte-
nance employees employed by the Employ-
er at its St. Petersburg, Florida, facility; ex-
cluding all registered nurses, licensed practi-
cal nurses, dietary department employees
employed by ARA Hospital Food Manage-
ment, Inc., guards and supervisors as defined
in the Act.
THE EPISCOPAL COMMUNITY OF ST.
PETERSBURG, D/B/A SUNCOAST
MANOR
1283