Methodist Medical Center

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Missouri Methodist Hospital Association d/b/a Meth- odist Medical Center and International Brother- hood of Firemen and Oilers, Maintenance Mechan- ics, Production Workers, Operators and Hospital Employees, Local No. 1. Case 17-CA 9014 September 28, 1979 DECISION AND ORDER By CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY Upon a charge filed on June 13, 1979, by Interna- tional Brotherhood of Firemen and Oilers, Mainte- nance Mechanics, Production Workers, Operators and Hospital Employees, Local No. 1, herein called the Union, and duly served on Missouri Methodist Hospital Association d/b/a Methodist Medical Cen- ter, herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 17, issued a complaint and notice of hearing on June 20, 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 notice of hearing before an administrative law judge were duly served on the parties to this proceed- ing. With respect to the unfair labor practices, the com- plaint alleges in substance that on May 21, 1979. fol- lowing a Board election in Case 17-RC-8718, 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 June 6, 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 28, 1979, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. Respondent admits that it meets the Board's jurisdictional standards. It denies that the Union has been, at all times since May 21, 1979, and is now, the exclusive representative of all I Official notice is taken of the record in the representation proceeding. Case 17-RC-8718, 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 Electrosysemns Inc., 166 NLRB 938 (1967), end. 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): Foller Corp.. 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968); Sec. 9(d) of the NLRA, as amended. the employees in the unit found appropriate, but ad- mits that on May 21. 1979, the Regional Director for Region 17 certified the Union as the exclusive collec- tive-bargaining representative of the employees in the unit found appropriate. Respondent admits the alle- gation that it refused, and continues to refuse, to meet and bargain with the Union as the collective-bargain- ing representative, but denies the conclusory 8(a)(5) and (I) allegations. It alleges that the Regional Direc- tor erred by certifying the Union as the exclusive col- lective-bargaining representative of Respondent's maintenance employees, because the maintenance employees share a community of interest with Re- spondent's other employees and a separate unit of maintenance employees would ignore the congres- sional admonition against undue proliferation of bar- gaining units in the health care industry. On July 9, 1979, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on July 16, 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 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 its response to the Notice To Show Cause, Respondent attacks the Union's certification on the basis that the petitioned- for unit is inappropriate as a matter of law. Review of the record herein reveals that in Case 17-RC-8718 the petition was filed by the Union on March 8, 1979. On April 11, 1979, the Regional Di- rector issued his Decision and Direction of Election, in which he found, inter alia, that the petitioned-for unit was an appropriate unit for collective bargaining. On April 24, 1979, Respondent filed a request for re- view of the Regional Director's Decision and Direc- tion of Election, which was denied by the Board on May 9, 1979, as it raised no substantial issues war- ranting review. The election was held on May 11, 1979. At the conclusion of the balloting, the tally re- vealed that 23 votes had been cast for, and that no votes had been cast against, the Union. There were three challenged ballots, an insufficient number to af- fect the results. On May 21, 1979, the Regional Direc- tor certified the Union as the exclusive collective-bar- 245 NLRB No. 109 844 METHODIST MEDICAL CENTER gaining representative of the employees in the unit found appropriate. Following a request by the Union on or about May 31, 1979, that Respondent engaged in collective-bar- gaining negotiations with the Union, Respondent, by letter dated June 6, 1979, refused to recognize and bargain in good faith with the Union as the exclusive bargaining representative of its employees in the cer- tified unit. 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- ously unavailable evidence, no 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 a Missouri corporation engaged in the operation of a nonprofit health care institution located at St. Joseph, Missouri. In the course of its business operations within the State of Missouri, Re- spondent annually purchases goods and services val- ued in excess of $50,000 directly from sources located outside the State of Missouri, and annually derives gross revenues in excess of $250,000. 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. 1. THE LABOR ORGANIZATION INVOLVED International Brotherhood of Firemen and Oilers. Maintenance Mechanics, Production Workers, Op- 2See Pittsburgh Plate Glass Co. v. N.L.R.B, 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c). erators and Hospital Employees, Local No. 1. is a labor organization within the meaning of Section 2(5) of the Act. 111. THE UNFAIR I.ABOR PRA(CTIC ES A. The Representation 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 full-time and regular part-time maintenance and plant operation employees employed by Methodist Medical Center, St. Joseph, Missouri; excluding all office clerical employees, profes- sional employees, guards, and supervisors as de- fined in the Act. 2. The certification On May 11, 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 17, 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 May 21, 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 Respondent's Refusal Commencing on or about May 31, 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 June 6, 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 June 6, 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. 845 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 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, Inc., 136 NLRB 785 (1962); Commerce Company dib/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. Missouri Methodist Hospital Association d/b/a Methodist Medical Center is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Brotherhood of Firemen and Oil- ers, Maintenance Mechanics, Production Workers. Operators and Hospital Employees, Local No. 1, is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time maintenance and plant operation employees employed by Method- ist Medical Center, St. Joseph, Missouri; but exclud- ing all office clerical employees, professional employ- ees, guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of col- lective bargaining within the meaning of Section 9(b) of the Act. 4. Since May 21, 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 June 6. 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, Mis- souri Methodist Hospital Association d/b/a Method- ist Medical Center, St. Joseph, Missouri, 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 International Brother- hood of Firemen and Oilers, Maintenance Mechan- ics, Production Workers, Operators and Hospital Employees, Local No. , as the exclusive bargaining representative of its employees in the following ap- propriate unit: All full-time and regular part-time maintenance and plant operation employees employed by Methodist Medical Center, St. Joseph, Missouri: excluding all office clerical employees, profes- sional employees, guards and supervisors as de- fined 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- 846 METHODIST MEDICAL CENTER ing is reached, embody such understanding in a signed agreement. (b) Post at its St. Joseph, Missouri, place of busi- ness copies of the attached notice marked "Appen- dix."3 Copies of said notice, on forms provided by the Regional Director for Region 17, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained 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 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 17, 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 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." 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 Inter- national Brotherhood of Firemen and Oilers, Maintenance Mechanics, Production Workers, Operators and Hospital Employees, ocal No. 1, as the exclusive representative of the employees in the bargaining unit described below. WE wIl., 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 agreement. The bargaining unit is: All full-time and regular part-time mainte- nance and plant operation employees em- ployed by Methodist Medical Center, St. Joseph, Missouri, excluding all office clerical employees, professional employees, guards and supervisors as defined in the Act. MISSOURI METHODIST HSPIIAI. Asso((I- Al()N D/B/A MirilDTOIIS1 MEDI)I(AI CINIER 847