Masonic Homes of California, Inc.

National Labor Relations Board - Board Decisions

Feb 16, 1979

240 N.L.R.B. 776 (N.L.R.B. 1979)

776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Masonic Homes of California, Inc. and Hospital and
Institutional Workers Union Local 250, Service
Employees International Union, AFL-CIO. Case
32-CA 1206
February 16, 1979
DECISION AND ORDER
Upon a charge filed on September 8, 1978. by
Hospital and Institutional Workers Union Local 250,
Service Employees International Union, AFL CIO,
herein called the Union, and duly served on Masonic
Homes of California, Inc., herein called Respondent,
the General Counsel of the National Labor Relations
Board, by the Regional Director for Region 32, is-
sued a complaint and notice of hearing on September
20, 1978, against Respondent, alleging that Respon-
dent had engaged in and was engaging in unfair la-
bor practices affecting commerce within the meaning
of Section 8(a)(5) and (I) and Section 2(6) and (7) of
the National Labor Relations Act, as amended. Cop-
ies of the charge, 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 com-
plaint alleges in substance that on June 20, 1978, fol-
lowing a Board election in Case 32-RC-159, the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate and that commencing
on or about August 10, 1978, and at all times thereaf-
ter, 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 to do so. On
October 3, 1978, Respondent filed its answer to the
complaint, admitting in part, and denying in part, the
allegations in the complaint.
On October 16, 1978, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment, with exhibits attached. Subse-
quently, on October 24, 1978, the Board issued an
order transferring the proceeding to the Board and a
Notice To Show Cause why the General Counsel's
Motion for Summary Judgment should not be grant-
ed. Respondent thereafter filed a response to Notice
To Show Cause entitled "Opposition to General
IOfficial notice is taken of the record in the representation proceeding
Case 32 RC 159, 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
LT[ Erle(troslem.v. Inc. 166 NLRB 938 (1967). enfd. 388 F2d 683 (4th
Cir. 1968): Golden Age Beverage ('o., 167 NLRB 151 (1967). enfd. 415 .2d
26 (5th Cir. 1969). Iniertre ('o. v. Penello. 269 Supp. 573 (I).(' Va., 1967):
Follett Corp.. 164 N.RB 378 (1967), enfd. 397 .2d 91 (7th (ir 1968): Sec.
9(d) of the NLRA. as amended.
240 NLRB No. 97
Counsel's Motion for Summary Judgment."
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 and response to No-
tice To Show Cause, Respondent admits the request
and the refusal to bargain. However, it asserts as an
"affirmative defense" that the Union's certification
was improper on the basis of Respondent's objec-
tions to the election in the underlying representation
proceeding. Respondent further contends that the
failure of the Board to grant a hearing on its objec-
tions deprived it of due process and that it is entitled
to a hearing on these issues.
Review of the record herein, including the record
in Case 32 RC 159, reveals that an election conduct-
ed pursuant to a Stipulation for Certification Upon
Consent Election on January 27, 1978, resulted in a
vote of 93 to 68 in favor of the Union, with 15 chal-
lenged ballots. Thereafter, Respondent filed timely
objections to conduct of the election, alleging, in sub-
stance, that the Union threatened and coerced em-
ployees and created an atmosphere of fear; the
Union made promises of benefits to the employees;
the Union improperly offered to waive initiation fees
under N.L.R.B. v. Savair Manufacturing Co., 414 U.S.
270 (1973); the Union falsely informed employees as
to Respondent's intentions and actions concerning
the election campaign; the Union defaced official
NLRB documents, attempting to create the impres-
sion that the NLRB favored the Union in the elec-
tion; and union agents and the Board engaged in
conduct that interfered with the fair operation of the
election process.
After investigation, the Acting Regional Director
issued a report on objections on April 27, 1978, in
which he recommended that Respondent's objections
be overruled in their entirety and that the Union be
certified. Thereafter, Respondent filed exceptions to
the Acting Regional Director's report. On June 20,
1978, the Board, having considered the Acting Re-
gional Director's report, Respondent's exceptions
thereto, and the entire record, adopted the findings,
conclusions, and recommendations of the Acting Re-
gional Director and certified the Union as exclusive
bargaining agent of employees in the unit stipulated
to be appropriate. It thus appears that Respondent is
attempting in this proceeding to relitigate issues fully
litigated and finally determined in the representation
proceeding.
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or special
circumstances, a respondent in a proceeding alleging
MASONIC HOMES OF CALIFORNIA, INC. 777
a violation of Section 8(a)(5) is not entitled to reliti-
gate issues which were or could have been litigated in
a prior representation proceeding.2
All issues raised by Respondent in this proceeding
were or could have been litigated in the prior repre-
sentation proceeding, and Respondent does not offer
to adduce at a hearing any newly discovered or pre-
viously 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 proper-
ly litigable in this unfair labor practice proceeding.
In this proceeding Respondent contends that due
process entitles it to a hearing on its objections to the
election. Prior to adopting the findings, conclusions,
and recommendations of the Acting Regional
Director's Report on Objections, the Board consid-
ered the report, Respondent's exceptions thereto, and
the entire record in that case. By its adoption of the
report recommending that Respondent's objections
be overruled, the Board necessarily found that the
objections raised no substantial or material issues
warranting a hearing.' Further, it is well established
that the parties do not have an absolute right to a
hearing on objections to an election. It is only when
the moving party presents a prima facie showing of
substantial and material issues which would warrant
setting aside the election that it is entitled to an evi-
dentiary hearing. It is clear that, absent arbitrary ac-
tion, this qualified right to a hearing satisfies the
constitutional requirements of due process.4 Accord-
2See Pittsburgh Plate Glass Co v. N I. R B. 313 U.S 146. 162 (1941):
Rules and Regulations of the Board. Sees. 102.67(f) and 102.69(c).
Madsronville Concrete Co. 4 Disi,n of (orunm & Ediard. , . 220
NLRB 668 (1975); Eanswille Auto Parts, Inc. 217 NLRB 660 (1975). Fur-
thermore. in its Decision and Certification of Representative the Board spe-
cifically concluded that Respondent's objections raised no substantial or
material issues warranting a hearing.
In In. 2 of the underlying Decision and Certification of Represenltllle.
Members Penello and Murphy stated their agreement with the Acting Re-
gional Director's conclusion that the alleged misrepresentations did not
warrant the setting aside of the election. for the reasons set forth in their
separate opinions in Shopping Karl food iarket, In'.. 228 NLRB 1311
(1977). Member Truesdale stated his position that the alleged misrepresen-
tations were insufficient to warrant the setting aside of the election under
any view of the law. Subsequently. in General Knit of California, Inc. 239
NLRB 619, which issued on December 6, 1978, the Board. Members Penello
and Murphy dissenting, overruled Shopping Karl and returned "to the sta.n-
dard of review for alleged misrepresentations most cogently articulated in
Hollvrood Ceramics Company. In. 140 NLR 221 (1962)]." Accordingly.
Chairman Fanning and Members Jenkins and rruesdale hase considered
the misrepresentation objections alleged herein under the standard of reslew
as set forth in General Knit and. under that standard. find that the misrepre-
sentation allegations are not sufficient to warrant setting aside the election.
Members Penello and Murphy adhere to their respective positions as stated
in Shopping Karl and their separate dissents in (;ener/ A nit and. as stated
previously in the underlying representation case. find no merit to the mis-
representation allegations.
G TE Lenk urt, Incorporated, 218 N L RB 929 (1975): Hea i enl I a1ll/ S,
Area, a California Crporation, and Iteaienil a/lI, a Partinrhip. 215
NLRB 734 (1974); .4ma/ganliled Clothing WrirAeri f .4rmeria /14'infield
ingly, we grant the Motion for Summar' Judgment.5
On the basis of the entire record, the Board makes
the following:
FINDINGlS - F(l
I. THE BSINESS OF RESPONDFN
Respondent is a California corporation with a
place of business located in Union City. California,
where it is engaged in the operation of a nursing
home and related facilities. During the calendar year
1976 Respondent received charitable bequests of
cash and other assets from its guests and other
sources in excess of $100,000 and purchased goods
valued in excess of $2,000 which originated outside
the State of California. Respondent admits that it is
now, and has been at all times material herein, an
employer engaged in commerce and in a business af-
fecting commerce within the meaning of the Act.
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 juris-
diction herein.
II THE LABOR ORGANIZATION INVOLVED
Hospital and Institutional Workers Union Local
250, Service Employees International Union, AFL-
CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
,lanufl cturing Conipani. Inc./ .V L R B. 424 F.2d 818. 828 (D.C. Cir
1970).
Respondent argues for the first time in its response to the Notice To
Show Cause that the Board. without possession of the evidence obtained bh)
the Acting Regional Director during the investigation of the objections, is
precluded from determining whether the objections raised substantial and
material issues of fact requiring a hearing. It further argues that any deci-
sion made herein without the benefit of such e idence would be based on an
incomplete record and therefore would deprive it of due process. We find
Respondent's arguments without merit. See Reichart Furniture ompan.
238 NI.RB 1578 (1978) (Member Jenkins dissenting on issues not relevant
herein).
Additionalls. Respondent. although it admits that the Union requested
bargaining on June 27, 1978. and that it refused to do so on August 10,
1978. asserts that in order to avoid "undue implications." the record must be
supplemented to include cmmunications of the parties between those
dates. Respondent. however. has not submitted evidence of an, such com-
municatins. nr does it allege the nature of such asserted communications.
We find that Respondent's assertion raises no issue of fact warranting a
hearing
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III I [I .lN AIR I.ABOR PRA('II('VS
A. The R,re.sentation Proceeding
1. The unit
The following employees of Respondent constitute
a unit appropriate for collective-bargaining purposes
within the meaning of Section 9(b) of the Act:
All fulltime and regular part-time employees of
Respondent at its Union City. California loca-
tion in the following departments: health ser-
vices, resident services, dietary services, facility
services, general services, and activity services,
excluding: registered nurses, licensed vocational
nurses, the chaplain, business office clericals,
management and supervisory employees includ-
ing: directors (7), business office manager,
maintenance supervisor, grounds supervisor,
housekeeping supervisors (2), laundry supervi-
sor, diet technician, and personal care supervi-
sor and other supervisors and guards as defined
in the Act.
2. The certification
On January 27. 1978, a majority of the employees
of Respondent in said unit, in a secret ballot election
conducted under the supervision of the Regional Di-
rector for Region 32, designated the Union as their
representative for the purpose of collective bargain-
ing with Respondent. The Union was certified as the
collective-bargaining representative of the employees
in said unit on June 20, 1978, and the Union contin-
ues to be such exclusive representative within the
meaning of Section 9 (a) of the Act.
B. The Request To Bargain and Rc.vpondent's RefiUsal
Commencing on or about June 27, 1978. and at all
times thereafter, the Union has requested Respon-
dent to bargain collectively with it as the exclusive
collective-bargaining representative of all the em-
ployees in the above-described unit. Commencing on
or about August 10, 1978, and continuing at all times
thereafter to date, Respondent has refused, and con-
tinues to refuse, to recognize and bargain with the
Union as the exclusive representative for collective
bargaining of all employees in said unit.
Accordingly, we find that Respondent has, since
August 10, 1978, and at all times thereafter, refused
to bargain collectively with the Union as the exclu-
sive representative of the employees in the appropri-
ate unit, and that, by such refusal, 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. I Ii F.FI('Fr OF IIlE NFAIR L.ABOR PRA('IICES UPON
('OMMER(CE
The activities of Respondent set forth in section
II, above, occurring in connection with its opera-
tions described in section I, above, have a close, inti-
mate, 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 IF RM)DY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the mean-
ing of Section 8(a)(5) and (1) of the Act, we shall
order that it cease and desist therefrom and, upon
request, bargain collectively with the Union as the
exclusive representative of all employees in the ap-
propriate unit and, if an understanding is reached,
embody such understanding in a signed agreement.
In order to insure that the employees in the appro-
priate unit will be accorded the services of their se-
lected bargaining agent for the period provided by
law, we shall construe the initial period of certifica-
tion as beginning on the date Respondent commenc-
es to bargain in good faith with the Union as the
recognized bargaining representative in the appropri-
ate unit. See Mar-Jac Poultrv Companiy, Inc., 136
NLRB 785 (1962): Commerce Cornpany d/bh a Lamar
Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600
(5th Cir. 1964). cert. denied 379 U.S. 817 (1964); Bur-
nett Construction Comnpany', 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:
CON('IUSIONS OF LAW
1. Masonic Homes of California. Inc., is an em-
ployer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Hospital and Institutional Workers Union Local
250, Service Employees International Union, AFL-
('IO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. All fulltime and regular part-time employees of
Respondent at its Union City, California location in
the following departments: health services, resident
services, dietary services, facility services, general ser-
vices, and activity services, excluding: registered
nurses, licensed vocational nurses, the chaplain, busi-
MASONIC HOMES OF CALIFORNIA, INC. 779
ness office clericals. management and supervisory
employees including: directors (7), business office
manager, maintenance supervisor, grounds supervi-
sor, housekeeping supervisors (2), laundry supervisor,
diet technician, and personal care supervisor and
other supervisors and guards as defined in the Act.
constitute a unit appropriate for the purposes of col-
lective bargaining within the meaning of Section 9(h)
of the Act.
4. Since June 20, 1978, the above-namled labor or-
ganization has been and now is the certified and ex-
clusive representative of all employees in the afore-
said appropriate unit for the purpose of collective
bargaining within the meaning of Section 9(a) of the
Act.
5. By refusing on or about August 10. 1978. and at
all times thereafter, to bargain collectivel] with the
above-named labor organization as the exclusive bar-
gaining representative of all the employees of Re-
spondent in the appropriate unit. Respondent has en-
gaged 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
interfering with, restraining, and coercing, employ ees
in the exercise of the rights guaranteed them in Sec-
tion 7 of the Act and thereby has engaged in and is
engaging in unfair labor practices within the meaning
of Section 8(a)( I) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing 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.
Masonic Homes of California, Inc.. Union City, Cal-
ifornia, its officers, agents. successors, and assigns,
shall:
I. C('ease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and coin-
ditions of employment with Hospital and Institution-
al Workers Union Local 250, Service Employees In-
ternational Union, AFL-CIO, as the exclusive
bargaining representative of its employees in the fol-
lowing appropriate unit:
All fulltime and regular part-time employees of
Respondent at its Union C(ity. California loca-
tion in the following departments: health ser-
vices, resident services, dietary services, facility
services, general services, and activitv services.
excluding: registered nurses, licensed vocational
nurses. the chaplain, business office clericals.
management and supervisor employees includ-
ing: directors (7). business office manager.
maintenance supervisor, grounds supervisor.
housekeeping supervisors (2), laundry supervi-
sor. diet technician, and personal care supervi-
sor and other supervisors and guards as defined
in the Act.
(b) In anN like or related manner interfering with.
restraining, or coercing emploees 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
labor organization as the exclusive representative of
all emploxees in the aforesaid appropriate unit with
respect to rates of pa\x. wages. hours, and other terms
and conditions of employment and,. if an under-
standing is reached. embod\ such understandiing in a
signed agreement.
(b) Post at its office and facilities in nion (ity.
California. copies of the attached notice marked
"Appendix. " Copies of said notice, on forms pro-
\ided by the Regional Director for Region 32. after
being duly signed bh Respondent's representative.
shall he posted by Respondent immediately upon re-
ceipt thereof. and be maintained by it for 60 consecu-
tive das thereafter, in conspicuous places. including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken bh Respon-
dent to insure that said notices are not altered. de-
faced, or covered b any other material.
(c) Notifs the Regional Director for Region 32 in
writing, within 20 days from the date of this Order.
what steps have been taken to comply herewith.
in the ent hialt Iis ()OI lerl i, ctifor,ed h .1 udgtJ elt f .a t iled Stites
(t.lrl ,' ppcil. tIhe ird ill the noltlce reidlg e "Pr ted h ()rder of the
\.aonr.l I .[hor Relalio.ni Birdl ,h.ll read '"P-ted I'urrUlillt to .l udt e
r1lltlit . t I tilted Strltl e ( utrl f A\ rpp .a ll I lf..i v .ll ()dl l ,i f Ie,.
\.,ti'lal I ihor Rela.tlilor, I.o,ird
APPE.N [)lX
No Il( I To iii o ii:S
PosiLD Be ORI)IR ()1- Olit
NI t IoN I . 1. \H()R Rtl.\ I I()Ns BO RD
An Agency of the United States Government
W\VI iL. \O refuse to bargain collectivels
concerning rates of pay, wages, hours, and other
terms and conditions of employment with Hlos-
pital and Institutional Workers Union Local
250. Service Emploees International Union.
AFL (10. as the exclusive representative of the
780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees in the bargaining unit described be-
low.
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
Section 7 of the Act.
WE WILL, upon request, bargain with the
above-named Union, as the exclusive represen-
tative of all employees in the bargaining unit de-
scribed below, with respect to rates of pay, wag-
es, hours, and other terms and conditions of
employment and, if an understanding is
reached, embody such understanding in a signed
agreement. The bargaining unit is:
All fulltime and regular part-time employees
of Respondent at its Union City, California
location in the following departments: health
services, resident services, dietary services, fa-
cility services, general services, and activity
services, excluding: registered nurses, licensed
vocational nurses, the chaplain, business of-
fice clericals, management and supervisory
employees including: directors (7), business
office manager, maintenance supervisor,
grounds supervisor, housekeeping supervisors
(2), laundry supervisor, diet technician, and
personal care supervisor and other supervisors
and guards as defined in the Act.
MASONIC HOMES OF CALIFORNIA. INC.