The Jewish Hospital Association

THE JEWISH HOSPITAI. ASSOCIATION The Jewish Hospital Association of Louisville, Ken- tucky, Inc. and General Drivers, Warehousemen and Helpers Local Union No. 89, affiliated with the International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America. Case 9-CA- 13896 September 24. 1979 DECISION AND ORDER BY MEMBERS JENKINS, MURPHY, AND TRUESDAI.E Upon a charge filed on May 22, 1979, by General Drivers, Warehousemen and Helpers Ldcal Union No. 89, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, herein called the Union, and duly served on The Jewish Hospital Association of Louis- ville, Kentucky, Inc., herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 9, issued a complaint on June 8, 1979, and an erratum to said complaint on June 12, 1979, against Respondent, al- leging that Respondent had engaged in and was en- gaging 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 erratum 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 March 30. 1979, following a Board election in Case 9-RC- 12757, 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 April 16, 1979, and at all times thereafter, Respondent has refused, and continues to date to re- fuse, to bargain collectively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On June 21, 1979, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On July 13, 1979, counsel for the General Counsel filed directly with the Board a Motion for Summary ' Official notice is taken of the record in the representation proceeding. Case 9-RC 12757. as the termnn "record" is defined in Secs. 102.68 and 102.69(g) of the Board's Rules and Regulations. Series 8. as amended. See LTV Electrosystemn, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (4th Cir. 1968); Golden Age Beverage Co, 167 NLRB 151 (1967). enfd. 415 F.2d 26 (5th Cir. 1969); Intertvpe Co. 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 Judgment and memorandum in support thereof. On July 20, 1979, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Sum- mary Judgment should not be granted. Respondent thereafter on July 31, 1979, filed a response to the 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 In its answer to the complaint and response to the Notice To Show Cause, Respondent admits its refusal to bargain but asserts that the unit of Respondent's plant operation employees for which the Union was certified is not an appropriate unit. The General Counsel contends Respondent is improperly seeking to relitigate issues which were raised and decided in the underlying representation case. We agree with the General Counsel. Following a hearing in Case 9-RC-12757. the Re- gional Director issued his Decision and Direction of Election on February 23, 1979, in which he found that the operations department employees constituted a unit appropriate for collective bargaining. Accord- ingly, the Regional Director directed an election in the unit. On March 8, 1979, Respondent filed a re- quest for review of that Decision and Direction of Election. The Board, Member Jenkins dissenting, de- nied Respondent's request for review by telegraphic order dated March 19. 1979, as raising no substantial issues warranting review. An election was held on March 22, 1979, and the tally was 15 for, and 12 against, the Petitioner: there were no challenged ballots. On March 30, 1979. the Union was certified as the exclusive collective-bar- gaining representative of the employees in the plant operations department unit found to be appropriate. 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 relitigate 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 previ- tSee Pirtshurgh Plate Gass (o ' ' 1. R B, 313 L S. 146. 162 11941): Rules and Regulation 1f the Board. Ses 102 7 (f) and 102I6 9 h(c 245 NLRB No. 25 225 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ously unavailable evidence, nor does it allege that any special circumstances exist herein which would re- quire the Board to reexamine the decision made in the representation proceeding. We therefore find that Respondent has not raised any issue which is prop- erly litigable in this unfair labor practice proceeding. Accordingly, we grant the Motion for Summary Judgment.3 On the basis of the entire record, the Board makes the following: FINDINGS OF FA('CT 1. THE BUSINESS OF: RESPONDENT Respondent is a nonprofit corporation engaged in the operation of a hospital in Louisville, Kentucky. During the preceding 12-month period, which is a representative period, Respondent received gross rev- enues in excess of $250,000 and purchased and re- ceived at its Louisville, Kentucky, facility goods val- ued in excess of $50,000 which were shipped directly from points located outside the State of Kentucky. We find, on the basis of the foregoing, that Respon- dent 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 jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED General Drivers, Warehousemen and Helpers Lo- cal Union No. 89, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR L.ABOR PRACTICES A. The Representation Proceeding I. 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 plant operations department employees em- ployed by Respondent at its Louisville, Ken- tucky facility, including maintenance mechanics, plumbers, carpenters, refrigeration mechanics, Members Jenkins would have granted review of the Regional Director's decision herein, but recognizes the binding effect of the panel decision to the contrary, and accordingly considers that summary judgment is appropriate here. painters, the vent cleaner, the yard attendant. electronic technicians, electricians, the bio-medi- cal technician and the plant operations depart- ment secretary, but excluding all office clerical employees, all other employees, and all profes- sional employees. guards and supervisors as de- fined in the Act. 2. The certification On March 22, 1979. 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 9, designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the col- lective-bargaining representative of the employees in said unit on March 30, 1979. and the Union continues to be such exclusive representative within the mean- ing of Section 9(a) of the Act. B. The Request To Bargain and Respondenlt: Rejfisal Commencing on or about April 16, 1979, and at all times thereafter, the Union has requested Respondent to bargain collectively with it as the exclusive collec- tive-bargaining representative of all the employees in the above-described unit. Commencing on or about April 16, 1979, and continuing at all times thereafter to date, Respondent has refused, and continues to re- fuse, 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 April 16, 1979, 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. Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and ( ) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRA('TII('ES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its operations described in section 1, above, have a close, intimate, and substantial relationship to trade, traffic. and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. HE REMEI)Y Having found that Respondent has engaged in and is engaging in unfair labor practices within the mean- 226 THE JEWISH HOSPITAL ASSOCIATION 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 commences to bargain in good faith with the Union as the recog- nized bargaining representative in the appropriate unit. See Mar-Jac Poultr Company, Inc., 136 NLRB 785 (1962); Commence Company d/b/a Lamar Hotel, 140 NLRB 226. 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964). cert. denied 379 U.S. 817: Burnett Con- struction Company. 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: CONCLUSIONS OF LAW 1. The Jewish Hospital Association of Louisville, Kentucky, Inc., is an employer engaged in commence within the meaning of Section 2(6) and (7) of the Act. 2. General Drivers, Warehousemen and Helpers Local Union No. 89, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehouse- men, and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. All plant operations department employees em- ployed by Respondent at its Louisville, Kentucky, fa- cility, including maintenance mechanics, plumbers, carpenters, refrigeration mechanics, painters, the vent cleaner, the yard attendant, electronic technicians, electricians, the biomedical technician, and the plant operations department secretary, but excluding all of- fice clerical employees, all other employees, and all professional employees, guards and supervisors as de- fined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 4. Since March 30, 1979, the above-named labor organization has been and now is the certified and exclusive 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 April 16, 1979. 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 intefering with, restraining, and coercing, employees 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)(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 Rela- tions Board hereby orders that the Respondent, The Jewish Hospital Association of Louisville. Kentucky. Inc., Louisville, Kentucky, its officers. agents, succes- sors, and assigns, shall: I. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and con- ditions of employment with the General Drivers. Warehousemen and Helpers Local Union No. 89, af- filiated with the International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive bargaining representative of its employees in the following appropriate unit: All plant operations department employees em- ployed by The Jewish Hospital Association at its Louisville, Kentucky facility, including mainte- nance mechanics, plumbers, carpenters, refrig- eration mechanics, painters, the vent cleaner, the yard attendant, electronic technicians, electri- cians, the bio-medical technician and the plant operations department secretary, but excluding all office clerical employees, all other employees, and all 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 understand- ing is reached, embody such understanding in a signed agreement. (b) Post at its Louisville. Kentucky,. facility copies 227 DECISIONS OF NATIONA. LABOR RELATIONS BOARD of the attached notice marked "Appendix."4 Copies of said notice, no forms provided by the Regional Director for Region 9, after being duly signed by Re- spondent's representative, shall be posted by Respon- dent immediately upon receipt thereof, and be main- tained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices 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 9, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. I In the event that this Order is enforced b) 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." APPENDIX NOTICE To EMPI.OYEIS POSTED BY ORDER OF T1HE 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 Gen- eral Drivers, Warehousemen and Helpers Local Union No. 89, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, as the exclu- sive representative of the employees in the bar- gaining unit described below. WE- Wil.L 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 WIl., 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 employment and, if an understanding is reached, embody such understanding in a signed agree- ment. The bargaining unit is: All plant operations department employees employed by The Jewish Association of Louis- ville, Kentucky, Inc., at its Louisville, Ken- tucky facility, including maintenance mechan- ics, plumbers, carpenters, refrigeration mechanics, painters, the vent cleaner, the yard attendant, electronic technicians, electricians, the bio-medical technician and the plant op- erations department secretary, but excluding all office clerical employees, all other employ- ees, and all professional employees, guards and supervisors as defined in the Act. THE JEWISH HOSPITAI . ASSO(IATION OF LouISVIILE, KENTUCKY, INC. 228