Yonkers General Hospital

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Yonkers General Hospital and International Union of Operating Engineers, Local 30, 30A, AFL-CIO. Case 2-CA- 16315 June 29, 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENEI.ILO Upon a charge filed on March 14, 1979, by Inter- national Union of Operating Engineers, Local 30, 30A, AFL-CIO, herein called the Union, and duly served on Yonkers General Hospital, herein called Respondent, the General Counsel of the National La- bor Relations Board, by the Regional Director for Region 2, issued a complaint and notice of hearing on March 23, 1979, against Respondent, alleging that Respondent had engaged in and was engaging in un- fair labor practices affecting commerce within the meeting 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 proceeding. With respect to the unfair labor practices, the com- plaint alleges, in substance, that on February 20, 1979, following a Board election in Case 2 RC 17926, 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 March 1, 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 April 2, 1979, Respondent filed its an- swer to the complaint admitting in part, and denying in part, the allegations in the complaint. On April 19, 1979, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on April 25, 1979, the Board issued an Order transferring the proceeding to the Board and a Notice To Show Cause why the Gen- eral Counsel's Motion for Summary Judgment should not be granted. Respondent thereafter filed a re- sponse to Notice To Show Cause. I Official notice is taken of the record in the representation proceeding, Case 2-RC-17926, 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 I51 (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. 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 and thereafter in its opposition to the General Counsel's Motion for Summary Judgment, Respondent denies the appropriateness of the unit and contends that an appropriate unit would consist of all service and maintenance employees. In his Mo- tion for Summary Judgment, counsel for the General Counsel contends that Respondent seeks to relitigate matters previously considered by the Board and found to be lacking in substance and that there are no new factual issues which warrant a hearing. We agree with the General Counsel. Review of the record, including that of the repre- sentation proceeding, Case 2 RC-17926, shows that at the hearing on the Union's petition for a unit of all employees of the engineering and skilled maintenance department, Respondent opposed such a unit on three grounds: (I) that the Board has held that sepa- rate engineering and maintenance units are inappro- priate in the health care industry; (2) that the United States circuit courts of appeals have affirmed these Board decisions; and (3) that such a unit would be contrary to the congressional mandate against undue proliferation of units in the health care industry. On May 25, 1978, the Regional Director issued a decision and direction of election finding that Respondent's engineering and maintenance employees constitute a homogeneous unit whose employees share a commu- nity of interest sufficiently separate and apart from the rest of Respondent's service employees to justify separate representation. In its request for review of the Regional Director's decision and direction, Re- spondent reiterated its position that a decision finding appropriate a unit composed solely of engineering and maintenance employees is contrary to prior deci- sions and to the congressional mandate. Respondent also argued that the Regional Director erroneously determined that the engineering and maintenance de- partment employees possess a community of interest separate and apart from other service and mainte- nance employees. On June 27, 1978, the Board granted Respondent's request for review, but on January 29, 1979, the Board issued an Order affirm- ing the Regional Director's unit determination. That Order stated that subsequent to the grant of review the Board issued a Supplemental Decision and Order in Allegheny General Hospital, 239 NLRB 872 (1978), which set forth in detail the reasons for the policy 243 NLRB No. 42 226 YONKERS GENERAL HOSPITAL determination that hospital maintenance employees may constitute an appropriate bargaining unit under the health care amendments to the Act. Furthermore, the Order reiterated that a majority of the Board in Allegheny General Hospital found that the standard for determining the appropriateness of such a unit is the traditional community-of-interest test of Ameri- can Cyanamid Company', 131 NLRB 909 (1961). Ap- plying these standards, the Board thereby determined that the Regional Director's unit determination was appropriate. In the instant case Respondent again questions the appropriateness of the unit. In so doing Respondent raises no issue that it did not raise in the representation proceeding. 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, 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 1. THE BUSINESS OF RESPONDENT Respondent, a health care institution within the meaning of Section 2(14) of the Act, is a New York corporation engaged in operating an acute care hospi- tal at 2 Park Avenue, Yonkers, New York. In the normal course and conduct of its business operations during the past 12-month period, which period is rep- resentative, Respondent had gross revenue in excess of $1 million and purchased and received goods val- ued in excess of $50,000 directly from suppliers lo- cated 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 2See Pittsburgh Plate Glass Co v. N.LR.B., 313 U.S. 146, 162 (1941): Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c) effectuate the policies of the Act to assert jurisdiction herein. II. tE .ABO()R ORGANIZATION INV)I.VI ) International Union of Operating Engineers, Local 30, 30A, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. Ill. IHE 'NIFAIR I.ABOR PRA('II(ES A. The Representation Proceeding I. The unit The following employees of Respondent constitute a unit appropriate fr collective-bargaining purposes within the meaning of Section 9(b) of the Act: All full-time and regular part-time engineering and maintenance department employees, includ- ing firemen/engineers, engineering foremen, en- gineering assistants, maintenance mechanics, electricians, maintenance helper, carpenters, painters, groundskeepers/gardeners employed by Respondent at its Yonkers, New York, hospi- tal, but excluding all other employees, profes- sional employees, guards and supervisors as de- fined in the Act. 2. The certification On February 9, 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 2, 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 February 20, 1979, and the Union con- tinues to be such exclusive representative within the meaning of Section 9(a) of the Act. B. The Request To Bargain and Respondent's ReJiusal Commencing on or about February 23, 1979, and at all times thereafter the Union has requested Re- spondent to bargain collectively with it as the exclu- sive collective-bargaining representative of all the em- ployees in the above-described unit. Commencing on or about March 1, 1979, and continuing at all times thereafter to date, Respondent has refused and con- tinues 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 Respondent has, since March 1, 1979, and at all times thereafter, refused to 227 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section 111, 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 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. Yonkers General Hospital is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union of Operating Engineers, Local 30, 30A, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time engineering and maintenance department employees, including firemen/engineers, engineering foremen, engineering assistants, maintenance mechanics, electricians, main- tenance helper, carpenters, painters, groundskeepers/ gardeners employed by Respondent at its Yonkers, New York, hospital, but excluding all other employ- ees, professional employees, guards, and supervisors as defined in the Act constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since February 20, 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 March 1, 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 in- terfering with, restraining, and coercing employees in the exercise of the rights guaranteed to 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, Yon- kers General Hospital, Yonkers, New York, its offi- cers, 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 Union of Operating Engineers, Local 30, 30A, AFL-CIO, as the exclusive bargaining representative of its employ- ees in the following appropriate unit: All full-time and regular part-time engineering and maintenance department employees, includ- ing firemen/engineers, engineering foremen, en- gineering assistants, maintenance mechanics, electricians, maintenance helper, carpenters, painters, groundskeepers/gardeners, employed by Respondent at its Yonkers, New York, hospi- tal, but excluding all other employees, profes- sional employees, guards and supervisors as de- fined in the Act. 228 YONKERS GENERAL HOSPITAL (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 Yonkers, New York, hospital copies of the attached notice marked "Appendix." Copies of said notice, on forms provided by the Regional Director for Region 2, 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 2, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. MEMBER PENELLO, dissenting: For the reasons set forth in my dissenting opinion in Allegheny General Hospital, 239 NLRB 872, 1 would reverse the Regional Director's unit determina- tion, dismiss the petition, and therefore deny the Gen- eral Counsel's Motion for Summary Judgment. '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 EMPLOYEF S POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WIL NOT refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Inter- national Union of Operating Engineers, Local 30, 30A, AFL-CIO, as the exclusive representa- tive of the employees in the bargaining unit de- scribed 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 agreement. The bargaining unit is: All full-time and regular part-time engineer- ing and maintenance department employees, including firemen/engineers, engineering fore- men, engineering assistants, maintenance me- chanics, electricians, maintenance helper, car- penters, painters, groundskeepers/gardeners employed by Respondent at its Yonkers, New York, hospital, but excluding all other em- ployees, professional employees, guards and supervisors as defined in the Act. YONKERS GENERAL HOSPITAL 229