Parkview Nursing Center II Corp.

National Labor Relations Board - Board Decisions

Nov 23, 1976

226 N.L.R.B. 1123 (N.L.R.B. 1976)

PARKVIEW NURSING CENTER 11 1123
Parkview Nursing Center II Corp . and Amalgamated
Meat Cutters and Butcher Workmen of North
America, AFL-CIO, Local Union No. 200 . Case 8-
CA-9969
November 23, 1976
DECISION AND ORDER
By CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
Upon a charge filed on March 25, 1976, by Amal-
gamated Meat Cutters and Butcher Workmen of
North America, AFL-CIO, Local Union No. 200,
herein called the Union, and duly served on
Parkview Nursing Center II Corp., herein called the
Respondent, the General Counsel of the National
Labor Relations Board, by the Regional Director for
Region 8, issued a complaint on May 7, 1976, against
Respondent, alleging that Respondent had engaged
in and was engaging in unfair labor practices affect-
ing commerce within the meaning of Section 8(a)(5)
and (1) and Section 2(6) and (7) of the National La-
bor Relations Act, as amended. Copies of the charge,
complaint, and notice of hearing before an Adminis-
trative 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 February 12, 1976,
following a Board election in Case 8-RC-10187, the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate; I and that, commenc-
ing on or about March 16, 1976, 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 to do so.
Subsequently, Respondent filed an answer and an
amended answer to the complaint admitting in part,
and denying in part, the allegations in the complaint
and submitting affirmative defenses. The Respon-
dent admits all of the factual allegations of the com-
plaint, except those paragraphs which relate to the
appropriateness of the unit and the resulting certifi-
cation in the underlying representation proceeding,
Case 8-RC-10187.2
'Official notice is taken of the record in the representation proceeding,
Case 8-RC-10187, as the term "record" is defined in Secs 102 68 and
102 69(g) of the Board's Rules and Regulations , Series 8. as amended See
LTV Electrosystems, Inc, 166 NLRB 938 (1967), enfd 388 F 2d 683 (C A 4.
1968), Golden Age Beverage Co, 167 NLRB 151 (1967), enfd 415 F 2d 26
(C A 5, 1969), Intertype Co v Penello, 269 F Supp 573 D C Va , 1967),
Follett Corp, 164 NLRB 378 (1967), enfd 397 F 2d 91 (C A 7, 1968). Sec
9(d) of the NLRA, as amended
On August 17, 1976, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment and brief in support, with ex-
hibits attached. Subsequently, on August 31, 1976,
the Board issued an order transferring the proceed-
ing to the Board and a Notice To Show Cause why
the General Counsel's Motion for Summary Judg-
ment should not be granted. Respondent did not file
a response to Notice To Show Cause.
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
As reflected above, the Respondent admits all of
the factual allegations in the complaint, including its
refusal to recognize and bargain with the Union
which had been certified as the bargaining represen-
tative of the employees described in the complaint.
In its answer to the complaint, as well as in its
amended answer to the complaint, Respondent's sole
defense relates to the appropriateness and scope of
the unit as found by the Acting Regional Director in
his Decision and Direction of Election to which the
Respondent filed a request for review, and which the
Board denied on January 28, 1976, on the ground
that it raised no substantial issues warranting review.
By this assertion, and more specifically by its denials,
in whole or in part, of the allegations of the com-
plaint, the affirmative defenses alleged in its answer
and amended answer, the Respondent is attempting
to relitigate the same issues which it raised in the
representation proceeding, Case 8-RC-10187.
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
a violation of Section 8(a)(5) is not entitled to rehti-
gate issues which were or could have been litigated in
a prior representation proceeding.3
All issues raised by the Respondent in this pro-
ceeding 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
2 In its answer and amended answer to the complaint, Respondent as-
serts , in effect , that it does not have sufficient knowledge of the Union's
status as a labor organization As it was stipulated by the Respondent at the
hearing in the underlying representation proceeding, Case 8-RC-10187,
that the Union is a labor organization , this assertion is not subjec t for litiga-
tion in the instant unfair labor practice proceeding
7 See Pittsburgh Plate Glass Co v NLRB, 313 U S 146, 162 (1941),
Rules and Regulations of the Board . Secs 102 67(f) and 102 69(c)
226 NLRB No. 177
1124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which would require the Board to reexamine the de-
cision made in the representation proceeding. We
therefore find that the Respondent has not raised
any issue which is properly litigable in this unfair
labor practice proceeding. We shall, accordingly,
grant the Motion for Summary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
2. The certification
On February 5, 1976, 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 8, designated the Union as their
representative for the purpose of collective bargain-
ing with the Respondent. The Union was certified as
the collective-bargaining representative of the em-
ployees in said unit on February 12, 1976, and the
Union continues to be such exclusive representative
within the meaning of Section 9(a) of the Act.
The Respondent is now, and has been at all times
material herein, a corporation duly organized under
and existing by virtue of the laws of the State of
Ohio, with its facility and place of business located in
Warren, Ohio, where it is engaged in the operation of
a nursing home. Annually Respondent derives gross
revenues in excess of $100,000 from its business oper-
ations and receives products valued in excess of
$5,000 directly from points located outside the State
of Ohio.
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
Amalgamated Meat Cutters and Butcher Work-
men of North America , AFL-CIO, Local Union No.
200, 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 con-
stitute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All service and maintenance employees, and
technical employees, including licensed practical
nurses employed at the Respondent's facility lo-
cated at 1926 Ridge Avenue, Southeast, Warren,
Ohio, excluding all business office clerical em-
ployees, professional employees, guards and su-
pervisors as defined in the Act.
B. The Request To Bargain and Respondent's Refusal
Commencing on or about March 16, 1976, and at
all times thereafter, the Union has requested the Re-
spondent to bargain collectively with it as the exclu-
sive collective-bargaining representative of all the
employees in the above-described unit. Commencing
on or about March 16, 1976, and continuing at all
times thereafter to date, the Respondent has refused,
and continues 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 the Respondent has,
since March 16, 1976, and at all times thereafter, re-
fused to bargain collectively with the Union as the
exclusive representative of the employees in the ap-
propriate 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 PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section
III, 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. THE REMEDY
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.
PARKVIEW NURSING CENTER II 1125
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 Poultry Company, Inc., 136
NLRB 785 (1962); Commerce Company d/b/a Lamar
Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600
(C.A. 5, 1964), cert. denied 379 U.S. 817 (1964); Bur-
nett Construction Company, 149 NLRB 1419, 1421
(1964), enfd. 350 F.2d 57 C.A. 10, 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Parkview Nursing Center II Corp. is an em-
ployer engaged in commerce within the meaning of
Section 2 (6) and (7) of the Act.
2. Amalgamated Meat Cutters and Butcher Work-
men of North America, AFL-CIO, Local Union No.
200, is a labor organization within the meaning of
Section 2(5) of the Act.
3. All service and maintenance employees, and
technical employees , including licensed practical
nurses employed at the Respondent 's facility located
at 1926 Ridge Avenue , Southeast , Warren , Ohio, ex-
cluding all business office clerical employees , profes-
sional employees , guards and supervisors as defined
in the Act , constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of
Section 9(b) of the Act.
4. Since February 12, 1976, the above -named la-
bor 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 March 16, 1976, and at
all times thereafter , to bargain collectively 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 , employees
in the exercise of the rights guaranteed to them in
Section 7 of the Act , and thereby has engaged in and
is engaging in unfair labor practices within the mean-
ing of Section 8(a)(1) 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,
Parkview Nursing Center II Corp., Warren, Ohio, 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 con-
ditions of employment with Amalgamated Meat Cut-
ters and Butcher Workmen of North America, AFL-
CIO, Local Union No. 200, as the exclusive bargain-
ing representative of its employees in the following
appropriate unit:
All service and maintenance employees, and
technical employees, including licensed practical
nurses employed at the Respondent's facility lo-
cated at 1926 Ridge Avenue, Southeast, Warren,
Ohio, excluding all business office clerical em-
ployees, professional employees, guards and su-
pervisors 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
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 under-
standing is reached, embody such understanding in a
signed agreement.
(b) Post at its Warren, Ohio, facility copies of the
attached notice marked "Appendix." ^ Copies of said
notice, on forms provided by the Regional Director
for Region 8, after being duly signed by Respon-
dent's representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said no-
tices are not altered, defaced, or covered by any
other material.
° 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 read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board -
1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Notify the Regional Director for Region 8, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
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 with Amal-
gamated Meat Cutters and Butcher Workmen of
North America , AFL-CIO, Local Union No.
200, as the exclusive representative of the em-
ployees in the bargaining 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
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 service and maintenance employees, and
technical employees, including licensed prac-
tical nurses employed at the Respondent's fa-
cility located at 1926 Ridge Avenue, South-
east, Warren, Ohio, excluding all business
office clerical employees, professional em-
ployees, guards and supervisors as defined in
the Act.
PARKVIEW NURSING CENTER 11 CORP.