Health Care & Retirement Corporation of America (HCR) d/b/a Heartland of Clarksburg, 309 (1982)

HEARTLAND OF CLARKSBURG

Health Care & Retirement Corporation of America (HCR) d/b/a Heartland of Clarksburg and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America,

Local 789. Case 6-CA-14865

April 23, 1982 DECISION AND ORDER

BY MEMBERS FANNING, JENKINS, AND ZIMMERMAN

Upon a charge filed on September 4, 1981, by International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America,

Local 789, herein called the Union, and duly served on Health Care & Retirement Corporation of America (HCR) d/b/a Heartland of Clarksburg, herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 6, issued a complaint on September 30, 1981, 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 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 complaint alleges in substance that on June 19, 1981, following a Board election in Case 6-RC8725, 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 18, 1981, 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. On October 12, 1981,

Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint.

On January 25, 1982, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on February 2, 1982, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for SumOfficial notice is taken of the record in the representation proceeding,

Case 6-RC-8725, 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 Electrosystemsr Inc.. 166 NLRB 938 (1967), enfd. 388 F.2d 683 (4th Cir. 1968); Golden Age Beverage Ca, 167 NLRB 151 (1967), enfd. 415

F.2d 26 (5th Cir. 1969); Intertype Ca 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.

261 NLRB No. 48 mary Judgment should not be granted. Respondent thereafter filed a memorandum in opposition to the Motion for Summary Judgment.

Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority 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 to the complaint and memorandum in opposition to the Motion for Summary Judgment, Respondent admits that the Union has requested and that it has refused to bargain, but contends that the Union's certification is invalid because the Board improperly overruled its objections in the underlying representation proceeding.

The General Counsel argues that Respondent is attempting to relitigate issues decided by the Board in the underlying representation case and that all material issues have been previously considered.

We agree with the General Counsel.

Our review of the record herein, including the record in Case 6-RC-8725, establishes that pursuant to a Stipulation for Certification Upon Consent Election, an election was conducted on May 8, 1980. The tally was 38 for and 30 against the Union, with no void or challenged ballots. Respondent timely filed objections to the conduct affecting the results of the election, alleging essentially that (1) the Union unlawfully agreed to waive initiation fees for all employees who supported the Union and unlawfully gave the impression that only members or supporters of the Union would not have to pay initiation fees and (2) prounion employees made threats of discharge to fellow employees. On June 30, 1980, after investigation, the Acting Regional Director for Region 6 issued a Report on Objection, Order Directing Hearing on Objection, and Notice of Hearing, in which he recommended that Objection 2 relating to threats be overruled and ordered a hearing be held on the issues raised by Objection 1. On July 11, 1980, Respondent filed exceptions to the Acting Regional Director's report, and, on September 24, 1980, the Board adopted the Acting Regional Director's findings and recommendations, and ordered that a hearing be held. A hearing was held on October 28 and 29, 1980, and on January 29, 1981, the Hearing Officer issued her Report on Objections to Election, in which she recommended that the Board overrule Respondent's Objection I and that the Union be certified. On February 11, 1981, Respondent filed exceptions to the Hearing Officer's Report on Objections to Election. On June 19, 309

DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1981, the Board issued its Decision and Certification of Representative, 2 in which it adopted the Hearing Officer's findings and recommendations and certified the Union.

Subsequently, by letter dated July 20, 1981, the Union requested that Respondent meet for purposes of collective bargaining. Since August 18, 1981, Respondent has refused to bargain with the Union on the grounds that the Union was improperly certified.

It is well settled that in the absence of newly discovered or previously unavailable evidence or special circumstances 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.3

All issues raised by Respondent in this proceeding were or could have been litigated in the prior representation proceeding, 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 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.

On the basis...