Episcopal Community of St. Petersburg, The, d/b/a Suncoast Manor

National Labor Relations Board - Board Decisions

Aug 20, 1982

263 N.L.R.B. 584 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 International Union,
AFL-CIO-CLC. Case 12-CA-9764
August 20, 1982
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On September 30, 1981, the National Labor Re-
lations Board issued its Decision and Order' in the
above-entitled proceeding, in which it granted the
General Counsel's Motion for Summary Judgment
and found that The Episcopal Community of St.
Petersburg, d/b/a Suncoast Manor, herein called
Respondent, violated Section 8(a)(5) and (1) of the
National Labor Relations Act, as amended, by re-
fusing to bargain collectively with United Food
and Commercial Workers Local 1776, Professional
and Health Care Division, United Food and Com-
mercial Workers International Union, AFL-CIO-
CLC, herein called the Union, following a Board
election in Case 12-RC-6062 and the Union's certi-
fication as the exclusive collective-bargaining rep-
resentative of Respondent's employees in the unit
found appropriate. On May 24, 1982, the Board no-
tified the parties that it had decided sua sponte to
reconsider its Decision.
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.
Having reviewed the record in this proceeding,
we hereby reaffirm our previous Decision except
that we find that the Employer's argument that the
exclusion of certain dietary department employees
from the unit constituted an undue proliferation of
health care bargaining units was not raised in the
underlying representation case and therefore is not
properly before the Board in this proceeding.
This case involves Respondent's test of the
Board's certification of the Union as the exclusive
bargaining representative of a unit of service and
maintenance employees. In the underlying repre-
sentation proceeding Respondent argued that it
was a joint employer with ARA Services of the di-
etary employees and therefore those employees
should be included in the petitioned-for unit. The
Regional Director for Region 12 found that Re-
spondent and ARA Services were not joint em-
ployers and subsequently excluded the dietary staff
from the unit found appropriate. Thereafter Re-
' 258 NLRB 1279.
263 NLRB No. 79
spondent filed a request for review of the Regional
Director's decision. The Board in denying the re-
quest for review found it unnecessary to reach the
joint-employer issue on grounds that even if Re-
spondent and ARA Services were joint employers
it was not necessary to include the employees of
the joint employer, ARA Services, since they had
a different employer (than solely Respondent) and
would constitute a separate appropriate unit. Subse-
quently, Respondent refused to bargain with the
Union and the General Counsel moved for sum-
mary judgment on the complaint alleging that Re-
spondent's refusal to bargain constituted a violation
of Section 8(a)(5) and (1) of the Act.
In its answer to the Motion for Summary Judg-
ment, Respondent affirmatively argued that "exclu-
sion of dietary employees . . . constitutes an undue
proliferation of health care bargaining units ... ."
The Board in granting the General Counsel's
Motion for Summary Judgment concluded that Re-
spondent raised this argument in the underlying
representation proceeding and that Respondent was
therefore precluded from relitigating the issue in
the instant proceeding. Upon reexamination of the
record, we find that, while Respondent made a
passing reference to the health care issue in the un-
derlying representation case, it did not argue the
point to the Board.
Respondent initally moved to dismiss the petition
on the ground that directing an election in the peti-
tioned-for unit would result in an "unnecessary
fragmentation of the Employer's workforce"; how-
ever, Respondent did not assert that it was a health
care institution invoking the congressional admoni-
tion against the proliferation of units in the health
care industry. Indeed, in its request for review, Re-
spondent appears to concede that it is not a health
care institution. Thus, in describing the health care
facility3 which services Respondent's retirement
community, Respondent states, "While health care
is an integral part of the services provided by the
Employer, it is not their primary mission nor the
apex of this operation. .... It would be impossible
for Suncoast to provide nursing home care of their
entire membership. There was never any discussion
or intent that Suncoast become a nursing home."
In these circumstances, we find that Respond-
ent's brief reference to fragmentation of its work
force and to units in the nursing home/health care
industry does not constitute an argument that it is a
health care institution or that the unit found appro-
priate results in an undue proliferation of health
care bargaining units. As these arguments could
have been, but were not, raised in the underlying
representation case, we find that Respondent is not
584
SUNCOAST MANOR
entitled to litigate these matters in this unfair labor
practice proceeding.
On the basis of the foregoing, we hereby affirm
our original findings, conclusions of law, and Order
except as modified above.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby reaffirms the original Deci-
sion and Order in this proceeding, except as modi-
fied, and orders that the Respondent, The Episco-
pal Community of St. Petersburg, d/b/a Suncoast
Manor, St. Petersburg, Florida, its officers, agents,
successors, and assigns, shall take the action set
forth in the Board's original Order (258 NLRB
1279).
585