Brookhaven Memorial Hospital

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Brookhaven Memorial Hospital Medical Center and Local 806, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica. Case 29-CA-7318 September 28, 1979 DECISION AND ORDER BY MEMBERS JENKINS, MURPIIY, AND TRUESDALE Upon a charge filed on July 10, 1979, by Local 806, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, and duly served on Brookhaven Memorial Hospital Medical Center, herein called Re- spondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 29, issued a complaint on July 17, 1979, against Re- spondent, alleging that Respondent had engaged in and was engaging in unfair labor 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. Copies of the charge, complaint, and notice to 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 or about June 12, 1979, following a Board election in Case 29-RC- 4415, 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 July 2, 1979, and at all times thereafter, Respondent has refused, and contin- ues to date to refuse, to bargain collectively with the Union as the exclusive bargaining representative, al- though the Union has requested and is requesting it to do so. On July 25, 1979, Respondent filed its an- swer to the complaint admitting in part, and denying in part, the allegations in the complaint. On August 6, 1979, counsel for the General Coun- sel filed directly with the Board a Motion for Sum- mary Judgment. Subsequently, on August 9, 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 Summary Judgment should not be granted. Respondent thereafter filed a response to the Notice To Show Cause. Pursuant to the provisions of Section 3(b) of the I Official notice is taken of the record in the representation proceeding, Case 29-RC-4415, 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 (4th Cir. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26 (5th Cir. 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va., 1967); Follerr Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968); Sec. 9(d) of the NLRA, as amended. 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 its response to the Notice To Show Cause, Respondent asserts, inter alia, that the election conducted on January 4, 1979, in the underlying representation proceeding should have been set aside for the reasons set forth in its objections thereto and that the Board erred in adopt- ing the Regional Director's Report on Objections and issuing a Certification of Representation. Counsel for the General Counsel argues that Re- spondent's contentions are without merit, as they raise issues which were presented to and decided by the Board in the underlying representation case. A review of the record herein, including the record in Case 29-RC-4415, shows the following: On No- vember 28, 1978, the Union filed a petition for an election. On December 11, 1978, the Union and Re- spondent entered into a stipulation, approved by the Regional Director for Region 29 on December 12, 1978, providing for a secret-ballot election in which the appropriate unit for collective bargaining con- sisted of all full-time and regular part-time business office clerical employees, including switchboard op- erators, excluding all other employees, managerial employees, professional employees, technical employ- ees, service and maintenance employees, guards, and supervisors as defined in the Act. On January 4, 1979, a secret-ballot election was conducted under the di- rection of the Regional Director for Region 29 among the employees in the unit described above. The tally of ballots funished the parties after the election showed 30 votes for, and 26 against, the Union, with 2 challenged ballots, an insufficient number to affect the results. On January 11, 1979, Respondent timely filed ob- jections to the election, alleging, in essence, that (I) the Board agent conducting the election improperly counted as a valid "yes" vote a ballot which was un- marked on the front but had the word "yes" written on the back, (2) the Board agent refused to make arrangements to permit an employee hospitalized at Respondent's premises to vote from his hospital bed, (3) the Union's campaign literature contained objec- tionable misrepresentations, (4) the Board agent failed to sufficiently identify himself to a challenged voter and treated the voter in an abrupt manner, (5) the union agent interrogated an employee and threat- ened her with reprisals if she did not vote for the Union, and (6) the cumulative effect of the foregoing 245 NLRB No. 82 672 BROOKHAVEN MEMORIAL HOSPITAL. alleged conduct destroyed the requisite laboratory conditions for holding a free election. On March 23, 1979, the Regional Director for Re- gion 29 issued a Report on Objections recommending that Respondent's Objection (a) be sustained inas- much as the ballot marked on the back should be declared void; thus the Regional Director recom- mended that the tally of ballots be revised to reflect 29 votes for, and 26 against, the Union; that the other objections be overruled; and that the Union be certi- fied as the representative of the unit employees. Thereafter, Respondent timely filed exceptions to the Regional Director's Report on Objections. On June 12, 1979, the National Labor Relations Board issued a Decision and Certification of Representative2 adopting the Regional Director's findings and recom- mendations.' On July 1, 1979, the Union, by telegram, requested Respondent to bargain with it.4 On July 2, 1979, Re- spondent refused the request to bargain. 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.5 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- 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. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent is, and has been at all times material herein, a not-for-profit New York corporation with an office and place of business in Patchogue, New 2 Not reported in bound volumes of Board Decisions. 'Member Murphy would have found the ballot marked on its back a valid "yes" vote and would have overruled Objection I in its entirety. 4 The complaint alleges that the Union requested bargaining on June 12 as well as July 1. 1979. and Respondent's answer does not deny the allegation. However, the exhibits attached to the General Counsel's Motion for Sum- mary Judgment contain only the July I telegram request mentioned above, and the motion itself refers only to a July bargaining request Accordingl, for the purposes of this proceeding, we shall find that the Union requested bargaining on July I, 1979. See Pittsburgh Plate Glass Co v. N.L.RB.. 313 US. 146. 162 1941). Rules and Regulations of the Board. Secs. 102.67(f) and 102 69(c) York, where it is engaged in the business of operating a hospital and providing other health-related sevices. During the year preceding issuance of the complaint herein, Respondent derived gross revenues in excess of $250.000 from the operation of said hospital. and purchased goods and supplies valued in excess of $50,000 directly from firms located outside the State of New York. 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. IHF ILABOR OR(GANIZAIION IN\VOI).VID Local 806. International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. Ill. IHE UNIAIR I.ABOR PRA( I(I'ES A. The Representation Proceeding I. The unit The following employees of Respondent constitute a unit appropriate for collective-bargaining puposes within the meaning of Section 9(b) of the Act: All full-time and regular part-time business office clerical employees, including switchboard opera- tors, excluding all other employees, managerial employees, professional employees. technical employees, service and maintenance employees, guards and supervisors as defined in the Act. 2. The certification On January 4, 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 29, 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 June 12, 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 andt Resptdent's Relfial Commencing on or about July 1. 1979. and at all times thereafter. the Union has requested Respondent to bargain collectively with it as the exclusive collec- tive-bargaining represent'ttive of all the emplo ees in 673 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the above-described unit. Commencing on or about July 2, 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 July 2, 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 (1) of the Act. IV. THE EFFECT OF THE UNFAIR IlABOR PRA(CTI('ES UPON COMMIRCI 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. 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. 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 Poultry Company, 136 NLRB 785 (1962); Commerce Company d/bla Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817; Burnett Construction 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 I. Brookhaven Memorial Hospital Medical Center is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 806, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time business of- fice clerical employees, including switchboard opera- tors, excluding all other employees, managerial em- ployees, professional employees, technical employees service and maintenance employees, guards and su- pervisors as defined in the Act, constitute a unit ap- propriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since June 12, 1979, the above-named 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 July 2. 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 interfering 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, Brookhaven Memorial Hospital Medical Center, Patchogue. New York, 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 Local 806, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, as the exclusive bar- gaining representative of its employees in the follow- ing appropriate unit: All full-time and regular part-time business of- fice clerical employees, including switchboard operators, excluding all other employees. man- 674 BROOKHAVEN MEMORIAL HOSPITAL agerial employees, professional employees, tech- nical employees, service and maintenance em- ployees. 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 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 office and place of business in Patch- ogue, New York, copies of the attached notice marked "Appendix." 6 Copies of said notice, on forms provided by the Regional Director for Region 29, af- ter being duly signed by Respondent's representative. shall be posted by Respondent immediately upon re- ceipt thereof, and be maintained by it for 60 consecu- tive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, de- faced, or covered by any other material. (c) Notify the Regional Director for Region 29. in writ- ing, 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 ofa United States Court 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 Now tic To EMPLOYEIS POSIEI) BY ORI)DR ( 111Ilt ONl()AI_ LABOR REL.AIIONS B()ARI) 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 Local 806. International Brotherhood of Teamsters. Chauf- feurs, Warehousemen and Helpers of America, as the exclusive representative of the employees 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 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 full-time and regular part-time business of- fice clerical employees, including switchboard operators. excluding all other employees, man- agerial employees, professional employees. technical employees, service and maintenance employees, guards and supervisors as defined in the Act. BROOKHAVEN MEMORIAL HOSPITAL MEDI- CAL CENTER 675