Colonial Manor 1977, Inc.

National Labor Relations Board - Board Decisions

Jan 9, 1981

253 N.L.R.B. 1183 (N.L.R.B. 1981)

COLONIAL MANOR 1977, INC.
Colonial Manor 1977, Inc. and Professional and
Health Care Division, United Food & Commer-
cial Workers International Union, Local 1636,
AFL-CIO. Case 12-CA-8918
January 9, 1981
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
Upon a charge filed on December 11, 1979, by
Professional and Health Care Division, United
Food & Commercial Workers International Union,
Local 1636, AFL-CIO, herein called the Union,
and duly served on Colonial Manor 1977, Inc.,
herein called Respondent, the General Counsel of
the National Labor Relations Board, by the Re-
gional Director for Region 12, issued a complaint
on January 7, 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 the com-
plaint and notice of hearing before an administra-
tive 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 June 22,
1979, following a Board election in Case 12-RC-
5642, the Union was duly certified as the exclusive
collective-bargaining representative of Respond-
ent's employees in the unit found appropriate;' that
on or about June 7, 1979, the Retail Clerks Interna-
tional Union, herein also called the Retail Clerks,
and Amalgamated Meatcutters and Butcher Work-
men of North America, herein also called the
Meatcutters, merged to create the United Food and
Commercial Workers International Union and, as a
result, the name of the certified labor organization
was changed to the name of the Union; and that,
commencing on or about July 9, 1979, 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
17, 1980, Respondent filed its answer to the com-
plaint admitting in part, and denying in part, the al-
l Official notice is taken of the record in the representation proceed-
ing, Case 12-RC-5642, 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 Electrsysterns, 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
legations in the complaint, and submitting affirma-
tive defenses.
On February 19, 1980, counsel for the General
Counsel filed directly with the Board a Motion To
Transfer Case to Board and for Summary Judg-
ment, with exhibits attached. Subsequently, on Feb-
ruary 27, 1980, the Board issued an order transfer-
ring the proceeding to the Board and a Notice To
Show Cause why the General Counsel's Motion
for Summary Judgment should not be granted. Re-
spondent thereafter filed an 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 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, inter alia, the appropriateness of the unit,
that it has refused to bargain with the Union, and
that the Union is a labor organization within the
meaning of Section 2(5) of the Act, or that its
name was changed as the result of a merger be-
tween the two International Unions as described
above. Respondent also asserts that the Board did
not properly review or consider the matters raised
by Respondent in its election objections and re-
quests for review filed in Case 12-RC-5642, and
that upon information and belief the Union has en-
gaged in and is engaging in prohibited discrimina-
tion on the basis of race and sex, and has refused to
respond to Respondent's legitimate requests for in-
formation in this regard.
The General Counsel contends in his Motion for
Summary Judgment that Respondent's denials and
assertions raise no factual issues or issues which
were not dealt with in the underlying representa-
tion proceeding, and that Respondent is attempting
to relitigate issues already decided or which cannot
properly be raised.
A review of the record herein, including that of
the represenation proceeding in Case 12-RC-5642,
establishes that a petition was filed by Professional
and Health Care Division, Retail Clerks Interna-
tional Union, Local 1636, AFL-CIO, on March 9,
1979, seeking an election among a unit of licensed
practical nurses (LPNs) employed by the Employ-
er. After a hearing before a duly designated Hear-
ing Officer, the Regional Director for Region 12
issued a Decision and Direction of Election in
which he found that the unit sought was appropri-
ate, as the LPNs were not supervisors within the
meaning of Section 2(11) of the Act. On May 18,
253 NLRB No. 151
1183
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1979, a secret-ballot election was conducted by the
Region in which the Union received a majority of
the votes cast.2 Thereafter the Employer timely
filed objections to the election. On June 22, 1979,
the Regional Director for Region 12 issued a Sup-
plemental Decision, Order, and Certification of
Representative. On September 13, 1979, the Board
denied the Employer's timely request for review of
that supplemental decision.
Attached to the Motion for Summary Judgment
are four written demands for bargaining made by
the Union to Respondent or its attorney. The first
of these demands, a letter dated June 27, 1979,
bears the letterhead of Retail Clerks, Local No.
1636, and is signed by "Richard Ivins, President."
The other demands Were made by mailgram on
July 26, October 5, and November 7, 1979, respec-
tively. All three mailgrams list the sender as "Rich-
ard Ivins President Retail Clerks Union 1636." Re-
spondent does not challenge the authority of these
documents, nor does it challenge the General
Counsel's assertion that it did not answer the re-
quests for bargaining at any time prior to the filing
of the instant charge. Accordingly, we find that
Respondent refused to bargain with the Union as
requested.
In its response to the Board's Notice To Show
Cause, however, Respondent argues that the Union
cannot assume the certification issued to a different
labor organization without affording it an opportu-
nity to litigate whether the alleged merger has cre-
ated a labor organization with which Respondent is
obligated to bargain. Respondent also expands
upon its assertion in its answer that the Board did
not properly review the matters raised by Re-
spondent in the representation matter, by asserting
that the Board did not have before it the affidavits
which the Region had obtained in investigating Re-
spondent's objections to the election. It also reas-
serts its defense that its claim that the Union has
engaged in racial and sex discrimination is appro-
priately raised at this stage of the proceeding.
In support of its contention that the Union
cannot assume the certification issued to another
labor organization, Respondent asserts upon infor-
mation and belief that the merger was not accom-
plished with sufficient procedural regularity as to
require Respondent to bargain with the Union and
that following the filing of the charge herein Re-
spondent sought information concerning the charge
and that the Union has not responded.
We find no merit in Respondent's position. First,
in an earlier proceeding, L. M. Berry and Company,
2 The ballots originally were impounded pending Respondent's request
for review of the Regional Director's Decision and Direction of Election.
The Board, with Member Jenkins dissenting, denied that request on May
21, 1979.
248 NLRB 1218 (1980), the Board amended the
name of the Union, changing it pursuant to the
merger of the two Internationals from Retail
Clerks International Union, Local 1636, AFL-CIO,
to United Food and Commercial Workers Interna-
tional Union. In effect the Board treated the con-
solidation of the two Internationals as a continu-
ation of two constitutent unions, for bargaining
purposes, and thus the Union had succeeded to
their bargaining rights and obligations.3 Second, as
in Berry, Respondent here did not refuse to bargain
out of any apparent concern with respect to the
merger. Each of the demands for bargaining was
signed by Ivins with the notation that he was sign-
ing as president of the Retail Clerks. Despite the
fact that the demand was made on behalf of the
Union using the name set forth in the certification,
Respondent did not answer. It offers no explana-
tion for its failure to answer. While Respondent
may have been aware of the merger, it did not ex-
press any concern over that event as the cause of
its refusal to bargain. Since we have previously
found that Local 1636, Food and Commercial
Workers, merely represents a change of name from
Local 1636, Retail Clerks, we find that Respond-
ent's assertions with respect to the merger do not
raise any issues warranting denial of the motion.
Respondent, as noted, also contends that the
Board did not properly review matters raised by
Respondent in the representation proceeding be-
cause the Regional Director failed to forward to
the Board affidavits obtained by him during his in-
vestigation of objections. We reject this contention.
The Regional Director's Supplemental Decision,
Order, and Certification overruling Respondent's
objections was a final decision on the record. 4 Re-
spondent challenged this decision by timely filing a
request for review with the Board. Under Section
102.67(d) of the Board's Rules and Regulations,
"any request for review must be a self-contained
document enabling the Board to rule on the basis
of its contents without the necessity of recourse to
the record; however, the Board may, in its discre-
tion, examine the record in evaluating the request."
Where, as in the case at issue, it appears from the
Regional Director's decision and the request for
review that no substantial and material issues of
fact exist, we find that it is no abuse of the Board's
discretion to deny the request solely on the basis of
those documents. On the contrary, such action ac-
3 See, e.g., Butler Chemical Company, successorro Gulf Company. 116
NLRB 1043 (1956).
4 Contrary to Respondent's claim in opposition to the Motion for Sum-
mary Judgment, Sec. 3(b) of the Act authorizes the Board to delegate to
its regional directors final decisionmaking power in postelection proceed-
ings, subject to discretionary review by the Board.
1184
COLONIAL MANOR 1977, INC.
cords with the Board's policy of expeditiously re-
solving questions concerning representation.s
Respondent's reliance on Prestolite Wire Division
v. N.L.R.B., 592 F.2d 302 (6th Cir. 1979), is mis-
placed with respect to its argument about the
Board's review obligations in a representation pro-
ceeding wherein a regional director makes a final
decision on the record pursuant to provisions of
Sections 102.62, 102.67, and 102.69 of the Board's
Rules and Regulations. Prestolite Wire dealt with
the type of representation proceeding wherein the
Board itself makes the final decision on the record.
Moreover, we respectfully reiterate our disagree-
ment with the Sixth Circuit's holding in Prestolite
Wire that the Board abused its discretion by ruling
on objections after consideration of a record which
did not include affidavits submitted to the regional
director in support of the objections. The Board
continues to hold that affidavits submitted to a re-
gional director during the investigation of objec-
tions are not part of the record, before the Board
in a representation proceeding or in a related unfair
labor practice proceeding. 6
As for Respondent's allegations that the Union
has engaged in and is engaging in prohibited dis-
crimination on the basis of race and sex, we find it
is inappropriately raised at this stage of the pro-
ceedings for the reasons set forth in Buchanan
Lumber Birmingham, Inc., 232 NLRB 929, 930
(1977), Bell & Howell Company, 230 NLRB 420
(1977), and Handy Andy, Inc., 228 NLRB 447
(1977).
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.7
All issues raised by Respondent in this proceed-
ing were or could have been litigated in the prior
representation proceeding, or, as we have found
above, have no merit, and Respondent does not
offer to adduce at a hearing any newly discovered
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
5 See, e.g., Klingler Electric Corpration, 245 NLRB 1247 (1979).
6 E.g., Klingler Electric Corporation. supra. Although the Board also re-
spectfully disagrees with the Fifth Circuit's holding in N.L.R.B. v.
Osborn Transportation. Inc., 589 F2d 1275. 1281 82 (1979). that affidavits
submitted in support of the employer's objections should be forwarded to
the Board as part of the record in the case, we note that the Board and
the Fifth Circuit agree that employee affidavits independently acquired
by a regional director during the investigation of objections are confiden-
tial and should not he part of the record. E.g., N .R . v Golden 4ge
Beverage Company, 415 F 2d 26 (5th Cir. 1969).
7 See Pittshurgh Plate Glaus Co v NL.R.B. 313 U.S 146. 162 (1941);
Rules and Regulations of the Board, Secs 102 67(f) and 102.O
9
(c)
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.8
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, a Florida corporation, maintains its
principal office and place of business at St. Peters-
burg, Florida, where it is engaged in the operation
of a proprietary nursing home. During the past 12
months, Respondent has received revenues in
excess of $100,000 and, during the same period of
time has received products valued in excess of
$10,000 from local suppliers who in turn have re-
ceived said products directly from points located
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
Professional and Health Care Division, United
Food & Commercial Workers International Union,
Local 1636, 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 licensed practical nurses employed by
the Employer at its facility located at 1735 -
9th Street, South, St. Petersburg, Florida, ex-
cluding: All service and maintenance employ-
ees, graduate nurses, registered nurses, patient
coordinators, office clerical employees, secu-
"In its answer to the complaint. Respondent, in addition to denying
the commlssion of any unfair labor practices, denies allegations that.
within the meaning of the Act, it has been engaged in commerce: the ap-
propriateness of the unit; or that the individuals within it are employees
Respondent also denies that the Union has been the exclusive bargaining
representative fr the unit emplosees However. as the Board in its prevl-
rus representation proceeding disposed of these issues, they cannot be re-
liigatdl here
1185
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rity guards and supervisors as defined in the
Act.
2. The certification
On May 18, 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 12, designated the Union as
their representative for the purpose of collective
bargaining with Respondent.
The Union, then known as Professional and
Health Care Division, Retail Clerks International
Union Local 1636, AFL-CIO, was certified as the
collective-bargaining representative of the employ-
ees in said unit on June 22, 1979, 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 27, 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 July 9, 1979,9 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
July 9, 1979, 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.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICE 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.
a In his Motion for Summary Judgment, the General Counsel indicates
that the complaint alleged the refusal to bargain as commencing on this
date because it was the date the Union requested Respondent first meet
with it for the purpose of negotiating a collective-bargaining agreement,
and because Respondent did not meet with the Union (on this date nor
made ally attempt to answer the Unioln's demands for bargaining
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 desisttherefrom, 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
i. Colonial Manor 1977, Inc., is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Professional and Health Care Division United
Food & Commercial Workers International Union,
Local 1636, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. All licensed practical nurses employed by the
Employer at its facility located at 1735 - 9th Street,
South, St. Petersburg, Florida, excluding: All serv-
ice and maintenance employees, graduate nurses,
registered nurses, patient coordinators, office cleri-
cal employees, security guards and supervisors as
defined 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 June 22, 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 July 9, 1979, 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-
1186
COLONIAL MANOR 1977, INC.
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,
Colonial Manor 1977, Inc., St. Petersburg, Florida,
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 Professional and
Health Care Division, United Food & Commercial
Workers International Union, Local 1636, AFL-
CIO, as the exclusive bargaining representative of
its employees in the following appropriate unit:
All licensed practical nurses employed by
the Employer at its facility located at 1735 -
9th Street, South, St. Petersburg, Florida, ex-
cluding: All service and maintenance employ-
ees, graduate nurses, registered nurses, patient
coordinators, office clerical employees, secu-
rity 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 "Appen-
dix."' 0 Copies of said notice, on forms provided by
iI) In the eenl Ihr Ihl, ()rdcr i cnfl r,cidI b. a Judgmentit o( a . 1 1111 tl
State,. (ouri Appeal s. Ihi l.rlis i IhC .ll.,. ro..cilIg "l'.iCd hi
Order of thes Naional; l I h(or R lai,,l s
.
Hoard hall read1 -I.,.tcd P . r [ uI I
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.
MEMBER JENKINS, dissenting,
I would deny the General Counsel's Motion for
Summary Judgiiient and remand the case for hear-
ing before an administrative law judge.
ant to i Judgment of the Unit'd StateS COiurl i o Ap1 l.. als I lln l . ,I
Order of the National L.abor Rlat,In, Board"
APPENDIX
NOTICE TO EMPI.OYItS
POSTE.) BY ORI)R OF1 I[H
NATIONAI. LABOR REI.ATIONS HOARDI)
An Agency of the United States GoverlInclI
WE WILL NOr refuse to bargain collecliels
concerning rates of pay, wages. hours. a;l
other terms and conditions of employ tnll t
with Professional and Health Care I)ix .is.,.
United Food & Commercial Workers I Itllri.
tional Union, Local 1636, AFL CI(), as Ihc
exclusive representative of the employeeS ilt
the bargaining unit described below.
WE WIL.L NOT in any like or relatcd mna;llnc
interfere with, restrain, or coerce our mph>
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE Will I. upon request, bargain ith 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 employmlent, and, if an understanding
is reached, emlbody such uinderstanding in a
signed agreement. Ihe bargaining unit is:
All licensedl practical niurss employed i b
the Employer at its ftltil ly located .It 17 ¢' -
9th Street. St l'tlershtlrg, 'Flolidt.i , x, IId
I 1187
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing: All service and maintenance employees,
graduate nurses, registered nurses, patient
coordinators, office clerical employees, secu-
rity guards and supervisors as defined in the
Act.
COLONIAL MANOR 1977, INC.
118