Avon Convalescent Center

National Labor Relations Board - Board Decisions

Jun 22, 1973

204 N.L.R.B. 415 (N.L.R.B. 1973)

AVON CONVALESCENT CENTER 415
Avon Convalescent Center and Service , Hospital,
Nursing Home and Public Employees Union, Local
47, Service Employees International Union, AFL-
CIO and Service Employees International Union,
Local 158(A) AFL-CIO. Case 9-CA-7441
June 22, 1973
DECISION AND ORDER
On March 20, 1973, Administrative Law Judge Joel
Harmatz orally granted the Respondent's motion to
dismiss the complaint in its entirety after the General
Counsel had rested his case in this proceeding. There-
after, the General Counsel filed a request for review
of the Administrative Law Judge's order of dismissal
within the meaning of Section 102.27 of the Board's
Rules and Regulations, Series 8, as amended.
The Board has considered the Administrative Law
Judge's order in light of the request for review and has
decided to affirm the Administrative Law Judge's or-
der only to the extent consistent herewith.
The complaint alleges that Respondent violated
Section 8(a)(1) and (5) of the Act by refusing to bar-
gain collectively in good faith with the exclusive col-
lective-bargaining representative of certain of
Respondent's employees after that representative had
orally and in writing demanded that Respondent rec-
ognize and bargain with it concerning the employees'
rates of pay, wages, hours of employment, and other
terms and conditions of employment.
The Administrative Law Judge granted
Respondent's motion to dismiss the entire complaint
on the ground that the complaint states that the certi-
fication was in the name of both Local 47 and Local
158(A), when only Local 47 is the certified representa-
tive of Respondent's employees in question, a de-
mand for recognition was made on behalf of both
locals, and the refusal to bargain by Respondent was
directed at both locals. In these circumstances, the
Administrative Law Judge concluded the "[t]he facts
alleged in the complaint when related to those estab-
lished do not substantiate refusal to bargain as to
Local 47, the certified representative." He further
stated that he would not regard anything done by
Local 158(A) in the name of Local 47 as binding on
Local 47. We disagree.
It is well settled that where the General Counsel
presents sufficient evidence to demonstrate the occur-
rence of an unfair labor practice unless controverted
the General Counsel has satisfied his duty to establish
a prima facie case.' Contrary to the Administrative
1 Law et a! , d/b/a E B Law and Son v NLRB, 192 F 2d 236 (C A 10,
1951)
Law Judge, the request to bargain does not necessari-
ly have to be made by the employee representative
directly.2 Thus, if the facts show that Local 158 (A) is
the duly designated representative of Local 47, the
certified representative, Respondent is not excused
from bargaining with Local 47 merely because the
requests were made by Local 158(A) on Local 47's
behalf.
The documentary evidence shows that the Respon-
dent and Local 47 entered into a Stipulation for Certi-
fication Upon Consent Election on August 15, 1972,3
and following the election on September 29, which
Local 47 won, Local 47 was certified as the bargaining
representative of Respondent's employees.
Nettie Singleton, an organizer for the International
to which Local 47 belongs and the person who actual-
ly organized Respondent's employees for Local 47,
testified that on May 1, the organizing authority for
nursing homes in the Cincinnati area was transferred
by the International to Local 158(A). She also testified
that at this time Local 47 which has its main office in
Cleveland moved its Cincinnati office into the office
of Local 158(A). She further stated that Local 47 has
its own president, secretary-treasurer, and business
agents.
Ed Moore, the business representative of both Lo-
cal 47 and Local 158(A), testified that John Murphy,
Local 47's president and a member of the executive
committee of the International, appointed him to be
Local 47's business representative and requested him
to "service 47's accounts" in Cincinnati for conve-
nience. He further stated that "[t]he Avon Convales-
cent Center belongs to 47" and in all matters relating
to this proceeding he was acting for Local 47 as a
favor to a sister local. He denied that Local 158(A)
had jurisdiction over all nursing home organizations
in the Cincinnati area, stated jurisdiction was de-
termined by which number local the two Internation-
al organizers designated when they filed a petition,
but admitted that he did not know of a filing for any
local union except "his" local.
Singleton testified that following the certification
she made several unsuccessful attempts to contact
responsible officials of the Respondent by telephone
in order that negotiations might commence, each time
identifying herself and leaving word to call her. She
received no responses.
Moore stated that after Mrs. Singleton had received
no response from her calls to Respondent, he initiated
a series of written requests to various persons em-
ployed by Respondent requesting it to discuss a col-
lective-bargaining contract. All six of these written
2 The Valley Broadcasting Company, 87 NLRB 1144, 1145 at In 2, Old
Town Shoe Company, 91 NLRB 240, 242 at fn 6
3 All dates hereinafter are in 1972
204 NLRB No. 64
416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
requests were written on Local 158(A)'s stationery.
The first three were signed by Moore as business rep-
resentative for Local 47 and Local 158(A). They were
sent respectively to Donald Reckner, Respondent's
director; David Craft, Respondent' s assistant admin-
istrator and administrator-in-training designate; and
Mrs. Robert Twitty, Respondent's administrator. The
fourth and fifth letters were signed by Singleton and
Moore as business representatives of 158(A) and sent
to Reckner. The final letter was sent to Reckner and
signed by Moore as business representative of Local
47 and Local 158(A). It stated:
As you are aware, our Union was certified as the
Bargaining Respresentative for a group of your
employees at Avon Convalescent Center, 548
Glenwood Ave., Cincinnati, Ohio, by the Na-
tional Labor Relations Board in Case 9-
RC-9299. Our Union is hereby requesting again
to bargain a Labor Agreement on behalf of the
employees designated in the aforementioned
N.L.R.B. Case.
Only three responses were received. Specifically,
David Craft acknowledged receipt of Moore's first
letter and simply advised that Reckner, the
Respondent's director of operations, was out of town.
In a second letter from Craft, Craft advised Moore
that he had no authority relative to negotiations with
the Union. The third and final response to Moore's
letters was received from Mrs. Twitty, who stated that
her delegated authority was limited to patient care.
Two of the four letters addressed to Reckner were
returned to Moore, unaccepted by the addressee.
Thereafter, on November 20, Local 158(A) filed
charges alleging a refusal to bargain by Respondent.
Subsequently, the charge was amended to include Lo-
cal 47, the exclusive bargaining representative of the
Respondent's employees. In these circumstances,
where the evidence so far shows that Respondent's
refusal to meet with the Union was not based on any
doubt as to the authority of Singleton or Moore to
represent Local 47, Respondent knew Local 47 was
the certified representative, and Moore was the au-
thorized representative of Local 47, the acknowleged
certified representative of Respondent's employees;
and the complaint alleges in part that Local 47 was the
certified representative, a recognition demand was
made on behalf of Local 47, and the refusal to bargain
was directed at Local 47, we conclude that, without
passing on the merits of the case, a prima facie case has
been established which requires the Respondent to
present counterevidence or take the risk of an adverse
finding. Accordingly, the ruling of the Administrative
Law Judge in granting Respondent's motion to dis-
miss was in error insofar as the complaint alleges that
Respondent refused to bargain collectively with Local
47.4 Thus, we shall order the record to be reopened
and the proceeding remanded for further hearing be-
fore the Administrative Law Judge and for the prepa-
ration of a decision.
ORDER
It is hereby ordered that the record in the proceed-
ing be, and it hereby is, reopened and that a further
hearing be held before Administrative Law Judge Joel
Harmatz to take testimony and receive evidence from
the Charging Party and Respondent and to take any
rebuttal testimony or evidence from the General
Counsel.
IT IS FURTHER ORDERED that this proceeding be re-
manded to the Regional Director for Region 9 for the
purpose of arranging such further hearing, and that
said Regional Director be, and he hereby is, author-
ized to issue notice thereof.
IT IS ALSO FURTHER ORDERED that upon conclusion of
such further hearing, the Administrative Law Judge
shall prepare and serve on the parties a decision con-
taining findings of facts upon the evidence received
pursuant to this Order, and such conclusions of law
and recommendations that he may deem appropriate;
and that, following the service of such decision on the
parties, the provision of Section 102.46 of the Board's
Rules and Regulations, Series 8, as amended, shall be
applicable.
CHAIRMAN MILLER, dissenting:
I would sustain the Administrative Law Judge's dis-
missal of the complaint.
The purpose of a complaint is to apprise a respon-
dent of the matters of which it is accused. To be sure,
technicalities of common law pleading need not be
followed, and minor variations are permitted without
question. The Board has, moreover, been liberal with
respect to permitting amendments, where no party
has been prejudiced thereby.
Nonetheless, in my view, the identity of the union
which has been certified as bargaining representative
is a matter of more than ordinary significance, and I
am unwilling to permit General Counsel to plead ca-
Nothing in this Decision condones the General Counsel's failure to a-
mend the complaint to reflect the fact that this proceeding only involves a
refusal to bargain with respect to Local 47, the only union that is the certified
representative, nor precludes the General Counsel from amending the com-
plaint subsequently However, as our dissenting colleague notes, "the techni-
calities of common law pleading need not be followed" and the Federal Rules
of Civil Procedure are to be construed liberally to do justice No equitable
argument can be made that Respondent did not know that only Local 47 was
the certified representative or what was being asked of it by the numerous
requests to bargain. Therefore, to sustain the Administrative Law Judge's
action in dismissing the entire complaint orally from the bench will only
penalize the employees by delaying collective bargaining further. This is
scarcely to do justice
AVON CONVALESCENT CENTER
sually in this area , thereafter requiring respondent to
answer whatever facts happen to be offered.
In the present case , on October 11, 1972, Service
Hospital, Nursing Home and Public Employees
Union, Local 47, Service Employees International
Union , AFL-CIO, was certified to represent
Respondent's employees. Local 47 was headquartered
in Cleveland, Ohio. Thereafter, demands for recogni-
tion were made on Respondent by various individu-
als, identifying themselves , at different times, as
representing either Local 158(A)-a Cincinnati-based
local of the same International, or Local 158(A) and
417
Local 47 jointly. The complaint issued by the General
Counsel erroneously states that both Local 47 and
Local 158(A) were certified by the Board and alleges
that Respondent unlawfully refused to bargain with
both Unions. When apprised of this difficulty by the
Administrative Law Judge, counsel for the General
Counsel gave no indication that he wished to amend
the complaint. With the case in this posture, I believe
the Administrative Law Judge properly dismissed the
complaint, expressly stating that his ruling would not
preclude litigation, in a properly drawn proceeding, of
Respondent's obligation to recognize the duly certi-
fied bargaining representative.