Hospice of Alverne

National Labor Relations Board - Board Decisions

Feb 3, 1972

195 N.L.R.B. 313 (N.L.R.B. 1972)

HOSPICE OF ALVERNE 313
Hospice of Alverne and St . Louis Joint Executive
Board of the Hotel and Restaurant Employees and
Bartenders International Union, AFL-CIO. Case
14-CA-6349
February 3, 1972
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND KENNEDY
Upon a charge filed on July 15, 1971, and an
amended charge filed on August 11, 1971, by St. Louis
Joint Executive Board of the Hotel and Restaurant
Employees International Union, AFL-CIO, herein
called the Union, and duly served on Hospice of Al-
verne, herein called the Respondent, the Acting Gen-
eral Counsel of the National Labor Relations Board, by
the Regional Director for Region 14, issued a com-
plaint on August 20, 1971, against Respondent, alleg-
ing 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, complaint, and notice of hearing
before a Trial Examiner were duly served on the parties
to this proceeding.
With respect to the unfair labor practices, the com-
plaint alleges in substance that on September 18, 1970,
following a Board election in Case 14-RC-6514 the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate described essentially as all
employees engaged in food handling or food prepara-
tion;' and that commencing on or about December 10,
1970, and at all times thereafter, Respondent has
refused, and continues to date to refuse, to bargain
collectively with the Union as the exclusive bargaining
representative although the Union has requested and is
requesting it do do so. The complaint further alleges
that on or about August 1, 1971, Respondent subcon-
tracted management of its food service operation to
Food Management Systems, Inc. (herein Food Man-
agement) without notice to or bargaining with the Un-
ion, and that on and at all times since that date, Re-
spondent has failed and refused and continues to fail
and refuse to bargain with the Union concerning the
subcontracting to Food Management. On September
20, 1971, Respondent filed its answer to the complaint
Official notice is taken of the record in the representation proceeding,
Case 14-RC-6514, as the term "record" is defined in Secs 102 68 and
102.69(t) of the Board's Rules and Regulations, Series 8, as amended See
LTV Electrosystems, Inc., 166 NLRB 938, enfd 388 F 2d 683 (C A 4,
1968), Golden Age Beverage Co, 167 NLRB 151, Intertype Co v Penello,
269 F Supp 573 (D C Va, 1967); Follett Corp, 164 NLRB 378, enfd 397
F 2d 91 (C A 7, 1968), Sec 9(d) of the NLRA
admitting in part, and denying in part, the allegations
in the complaint.
On October 15, 1971, counsel for the General Coun-
sel filed directly with the Board a Motion for Judgment
on the Pleadings and a brief in support of the motion.
Subsequently , on October 27, 1971 , the Board issued an
order transferring the proceeding to the Board and a
Notice to Show Cause why the General Counsel's Mo-
tion for Judgment on the Pleadings should not be
granted . Respondent thereafter filed a response to No-
tice To Show Cause , styled as a reply to the brief sub-
mitted by the General Counsel.
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, Respondent denies that it is an em-
ployer engaged in commerce within the meaning of the
Act. The record of the representation proceeding, Case
14-RC-6514, shows that in its objections to the elec-
tion held on August 19, 1970, pursuant to an agreement
for consent election, in which the Union received a
majority of the votes cast, Respondent contended that
the Board did not have jurisdiction over its operation
of a not for profit, religiously oriented residence for
elderly people, and that it had entered into the consent
agreement because of a mistake of law or fact as to
jurisdiction. In his decision, the Regional Director
overruled the objection, finding that Respondent was
an employer engaged in commerce within the meaning
of the Act whose operations satisfied the jurisdictional
standard of Drexel Home, Inc., 182 NLRB 1045, and
that Respondent had the opportunity to litigate the
jurisdictional issue before entering into the consent
agreement. Respondent filed a request for review rais-
ing these issues before the Board. Although the consent
agreement provided that decisions of the Regional Di-
rector would be final and binding, the Board treated the
request as one for special permission to appeal from the
Regional Director's decision and granted permission.
On November 10, 1970, the Board denied the appeal
finding that the Regional Director's action had not
been arbitrary or capricious, that the Respondent had
consented to the election procedure, that the election
had been held, and that the jurisdictional standards
were merely discretionary and, in any event, the Board
had legal jurisdiction. Thus, the question of Respond-
ent's status as an employer and the Board's jurisdiction
' We treat the General Counsel's motion as one for Summary Judgment
195 NLRB No. 60
314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
over Respondent's operations was fully litigated in the
representation proceeding.
Respondent also asserts that it is without knowledge
of, and thus it denies, the Union's status as a labor
organization, the scope and composition of the bargain-
ing unit , and the Union's status as the exclusive bar-
gaining representative for the unit employees. These
issues, too, were or could have been raised in the course
of the representation proceeding.
It is well settled that in the absence of newly discov-
ered or previously unavailable evidence or special cir-
cumstances a respondent in a proceeding alleging 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.'
All of the above issues raised by the Respondent in
this proceeding were or could have been litigated in the
prior representation proceeding, and the 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 the Respondent has not raised any issue re-
specting that proceeding which is properly litigable in
this unfair labor practice proceeding.
In its answer and also in its response to the Notice
To Show Cause, Respondent admitted that it had sub-
contracted management of its food service operation to
Food Management without prior notice to, or bargain-
ing with, the Union, but it asserts that this was for
economic reasons, and that at most there may be only
a technical violation of the Act. The law is well settled
that when an employer unilaterally subcontracts unit
work as was done here-even for wholly economic
reasons-he breaches his duty to bargain about the
decision to subcontract and the consequent effect of
that decision on the unit employees.' Respondent's as-
sertions here thus cannot serve as a defense to the
allegations in the complaint. While in its answer to the
complaint, Respondent admits the refusals to bargain,
in its response to the Notice To Show Cause Respond-
ent attempts to controvert this admission by asserting
that its counsel had met and "spoken at length over the
telephone with Union representatives," and further
that its counsel had met with Union and Food Manage-
ment representatives to help negotiate a contract be-
tween these two parties. Clearly, assisting the Union
and Food Management to negotiate a contract is not a
defense to its own refusal to bargain with the Union.
Nor do the broad assertions of meeting and conversa-
' S e e Pittsburgh P l a t e G l a s s C o . v N . L . R B, 313 U S 146, 162 (1941),
Rules and Regulations of the Board , Secs 102 67 (1) and 102 69(c).
4 Shurtenda Steaks, Inc., 161 NLRB 970-971, enfd NL.R.B v Shur-
tenda Steaks, Inc, 379 F 2d 939 (C A 10), Shell Oil Co, 149 NLRB 305,
307, citing Fibreboard Paper Products Corp. v NL.R B., 379 U S 203.
tions by its counsel with the Union serve as a defense
in light of the admissions contained in the answer to the
complaint.
Accordingly, we shall grant the Motion for Sum-
mary Judgment. On the basis of the entire record, the
Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a nonprofit corporation, organ-
ized under the laws of the State of Missouri, which
operates a residence for elderly people located at 1014
Locust Street, St. Louis, Missouri. During 1969, a rep-
resentative period, the Respondent received gross reve-
nues in excess of $440,000 in the course and conduct
of its operation, and purchased food and supplies
valued in excess of $40,000, of which a significant por-
tion originated outside the State of Missouri.
We find, on the basis of the foregoing, that Respond-
ent 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 effectu-
ate the policies of the Act to assert jurisdiction herein.
IT. THE LABOR ORGANIZATION INVOLVED
St. Louis Joint Executive Board of the Hotel and
Restaurant Employees and Bartenders 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 the Respondent consti-
tute a unit appropriate for collective-bargaining pur-
poses within the meaning of Section 9(b) of the Act:
All employees engaged in food handling or food
preparation at 1014 Locust Street in the city of St.
Louis, Missouri, excluding office clerical em-
ployees, professional employees, guards and
supervisors as defined in the Act.
2. The certification
On August 19, 1970, a majority of the employees of
Respondent in said unit, in a secret ballot election con-
ducted under the supervision of the Regional Director
for Region 14, designated the Union as their represent-
ative for the purpose of collective bargaining with the
Respondent. The Union was certified as the collective-
bargaining representative of the employees in said unit
on September 18, 1970, and the Union continues to be
HOSPICE OF ALVERNE 315
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 January 20, 1971,5 the
Union has requested the Respondent to bargain collec-
tively with it as the exclusive collective-bargaining rep-
resentative of all the employees in the above-described
unit. Commencing on or about January 20, 1971, and
continuing at all times thereafter to date, the Respond-
ent has refused, 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. Since on or about August 1, 1971, and continuing
at all times thereafter to date, Respondent has failed
and refused, and continues to fail and refuse, to bargain
with the Union concerning the subcontracting of the
management of its food service operation to Food Man-
agement.
Accordingly, we find that the Respondent has, since
January 20, 1971, and at all times thereafter, refused to
bargain collectively with the Union as the exclusive
representative of the employees in the appropriate unit,
and that, by such refusal, and by unilaterally subcon-
tracting management of its food service operation on
August 1, 1971, Respondent 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 the Respondent set forth in section
III, above, occurring in connection with its operations
described in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the
free flow of commerce.
V. THE REMEDY
became the employer of the unit employees, these em-
ployees suffered no loss of jobs or pay but continued to
perform the same work as before. In our view, the
change in the employing entity itself is a significant
change that could have a substantial impact on the
entire employment relationship, as well as the terms
and conditions of employment. Where, as here, an em-
ployer has denied recognition of its employees' prop-
erly certified bargaining representative for a substantial
period of time and, further, unilaterally subcontracts
unit work which has the effect of delivering its em-
ployees into the employment of another, a remedial
order is necessary. We shall therefore direct that Re-
spondent cease and desist from the unlawful conduct
found, and that upon request it bargain collectively
with the Union as the exclusive representative of all
employees in the appropriate unit.
In his brief in support of his motion, the General
Counsel asserts that he is not seeking a remedy which
would require Respondent to resume active manage-
ment of the food service operation or return the em-
ployees to its payroll. For this reason, with respect to
the subcontracting option we shall only direct that Re-
spondent bargain in good faith concerning the effects
upon the employees of Respondent's subcontracting
action. We shall further order that if an understanding
is reached, Respondent shall embody such understand-
ing in a signed agreement.
In order to insure that the employees in the appropri-
ate unit will be accorded the services of their selected
bargaining agent for the period provided by law, we
shall construe the initial period of certification as begin-
ning on the date Respondent commences to bargain in
good faith with the Union as the recognized bargaining
representative in the appropriate unit. See Mar-Jac
Poultry Company, Inc., 136 NLRB 785; Commerce
Company d/b/a Lamar Hotel, 140 NLRB 226, 229,
enfd. 328 F.2d 600 (C.A. 5), cert. denied 379 U.S. 817;
Burnett Construction Company, 149 NLRB 1419,
1421, enfd. 350 F.2d 57 (C.A. 10).
The Board, upon the basis of the foregoing facts and
the entire record, makes the following:
As indicated above, in its response to the Notice To
Show Cause Respondent contends that there may be
only a technical violation of the Act, and it asserts that
a remedial order is not warranted. We do not agree.
The Respondent argues that as the net effect of its
subcontracting action was that Food Management
' The complaint alleges, and Respondent 's answer admits , that the initial
request and refusal to bargain , which continues to date, began on December
10, 1970, a date that does not come within the 6-month Section 10(b) period
following the filing of the charge on July 15, 1971 However , since both the
original charge and the amended charge allege the refusal to bargain as of
January 20, 1971, which is within the statutory period, we have found the
refusal to bargain from that date.
CONCLUSIONS OF LAW
1. Hospice of Alverne is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. St. Louis Joint Executive Board of the Hotel and
Restaurant Employees and Bartenders International
Union, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All employees engaged in food handling or food
preparation at 1014 Locust Street in the city of St.
Louis, Missouri, excluding office clerical employees,
professional employees, guards and supervisors as
316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 September 18, 1970, the above-named labor
organization has been and now is the certified and ex-
clusive representative of all employees in the aforesaid
appropriate unit for the purpose of collective bargain-
ing within the meaning of Section 9(a) of the Act.
5. By refusing on or about January 20, 1971, and
again on August 1, 1971, and at all times thereafter, to
bargain collectively with the above-named labor organ-
ization 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 practices within the meaning of Section 8(a)(5) of
the Act.
6. By the aforesaid refusal to bargain, Respondent
has interfered with, restrained, and coerced, and is in-
terfering with, restraining, and coercing, employees in
the exercise of the rights guaranteed to them in Section
7 of the Act, and thereby has engaged in and is engag-
ing 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.
spect to rates of pay, wages, hours, and other terms and
conditions of employment, and as to the effects on unit
employees of subcontracting the management of its
food service operation and, if an understanding is
reached, embody such understanding in a signed agree-
ment.
(b) Post at its facility, 1014 Locust Street, St. Louis,
Missouri, copies of the attached notice marked "Ap-
pendix.", Copies of said notice, on forms provided by
the Regional Director for Region 14, 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 no-
tices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director for Region 14, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
6 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 be changed
to read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED
STATES COURT OF APPEALS ENFORCING AN ORDER OF THE
NATIONAL LABOR RELATIONS BOARD."
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board hereby orders that Respondent, Hospice of Al-
verne, 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 and concerning the effects of subcon-
tracting the management of its food service operation
on the unit employees with St. Louis Joint Executive
Board of the Hotel and Restaurant Employees and
Bartenders International Union, AFL-CIO, as the ex-
clusive bargaining representative of its employees in the
following appropriate unit:
All employees engaged in food handling or food
preparation at 1014 Locust Street in the city of St.
Louis, Missouri, excluding office clerical em-
ployees, 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 exercise 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 la-
bor organization as the exclusive representative of all
employees in the aforesaid appropriate unit with re-
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 or concern-
ing the effects of subcontracting of the manage-
ment of our food service operation on unit em-
ployees with St. Louis Joint Executive Board of
the Hotel and Restaurant Employees and Bar-
tenders International Union, AFL-CIO, as the ex-
clusive representative of the employees in the bar-
gaining unit described below.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed them by Sec-
tion 7 of the Act.
WE WILL, upon request, bargain with the
above-named Union, as the exclusive representa-
tive of all employees in the bargaining unit de-
scribed below, with respect to rates of pay, wages,
hours, and other terms and conditions of employ-
ment, and as to the effects on unit employees of the
subcontracting of the management of our food
service operation, and, if an understanding is
HOSPICE OF ALVERNE 317
reached , embody such understanding in a signed
agreement . The bargaining unit is:
All employees engaged in food handling or
food preparation at 1014 Locust Street in the
city of St. Louis, Missouri, excluding office
clerical employees, professional employees,
guards, and supervisors as defined in the Act.
HOSPICE OF ALVERNE
(Employer)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, 210 North 12th Boulevard, Room 448, St.
Louis, Missouri 63101, Telephone 314-622-4142.
Dated By
(Representative) (Title)