Vista Hill Hospital

VISTA HILL HOSPITAL Vista Hill Foundation d/b/a Vista Hill Hospital and Service Employees International Union, Local 102, Service Employees International Union, AFL-CIO. Case 21-CA 16968 December 8, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY Upon a charge filed on August 15, 1978, by Ser- vice Employees International Union, Local 102, Ser- vice Employees International Union, AFL-CIO, herein called the Union, and duly served on Vista Hill Foundation d/b/a Vista Hill Hospital, herein called Respondent, the General Counsel of the Na- tional Labor Relations Board, by the Regional Di- rector for Region 21, issued a complaint and notice of hearing on August 31, 1978, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting com- merce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Rela- tions Act, as amended. Copies of the charge, com- plaint, and notice of hearing before an Administra- tive 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 May 8, 1978, fol- lowing a Board election in Case 21-RC-15352, the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate; and that, commenc- ing on or about May 23, 1978, and at all times there- after, 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 September 11, 1978, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On September 22, 1978, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on October 6, 1978, the Board issued an order transferring the pro- ceeding to the Board and a Notice To Show Cause Official notice is taken of the record in the representation proceeding. Case 21-RC-15352, as the term "record" is defined in Secs 10268 and 102.69(g) of the NL.RB Rules and Regulations and Statements of Procedure. Series 8, as amended. See LTV' Electrorstrems, Inc. 166 NL.RB 938 (1967). enfd. 388 F.2d 683 (4th (Cir. 1968); Golden Age Beverage (o. 167 NLRB 151 (1967), enfd. 415 F.2d 26 (5th Cir 1969). Interrpe ( o v. Penello. 269 F. Supp. 573 (D.C.Va., 1967): Follet (Corp. 164 NLRB 378 (1967). enfd 397 F.2d 91 (7th Cir. 1968): Sec 9(d) of the NLRA, as amended why the General Counsel's Motion for Summary Judgment should not be granted. Respondent there- after filed an opposition to the Motion for Summar)y Judgment. 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 opposition to the Motion for Summary Judgment, Respondent at- tacks the Union's representative status and certifica- tion. Respondent admits that since May 23, 1978, it has refused to bargain with the Union upon the Union's request but contends that it was under no legal obligation to bargain because the Board was required either to set aside the election or to direct that a hearing be held on Respondent's objections. In its Decision and Certification of Representative in the underlying representation proceeding, the Board specifically noted that Respondent's exceptions "raise no substantial or material issue of fact or law requiring reversal of the Regional Director's findings, conclusions, and recommendations, or warranting a hearing." Thus, the Board has already fully consid- ered Respondent's contentions with respect to its ob- jections and its exceptions to the Regional Director's report and has found those contentions to be without merit. 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 reliti- gate 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 pre- viously 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 proper- ly 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: :See Pittcburigh PIlalt (;/,ia, Co . NLRR. 313 L!S 146. 162 11941): Boards Rules and Regulations. Sees 102 67if) and 102.69(c) 667 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent is a California corporation engaged in the business of operating a nonprofit acute psychiat- ric hospital with facilities located in Chula Vista, Cal- ifornia. During the past 12-month period, which is representative, it supplied services valued in excess of $1 million. During the same period, it received reve- nues from the Medicare program in excess of $245,000 and revenues from the Medi-Cal program in excess of $150,000. 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. II. THE LABOR ORGANIZATION INVOLVED Service Employees International Union, Local 102, Service Employees International Union, AFL- CIO, is a labor organization within the meaning of Section 2(5) of the Act. 111. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding a. 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 employees of Respondent employed at its Vista Hill Hospital facility located at 3 North Second Avenue, Chula Vista, and its South Bay Guidance Center facility located at 225 Third Avenue, Chula Vista, California; excluding pro- fessional employees, social workers, physicians, registered nurses, business office clerical em- ployees, administrative secretary, secretary to the Medical Director/Medical Staff Secretary, guards and supervisors as defined in the Act. 2. The certification On January 10, 1978, 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 21, designated the Union as their representative for the purpose of collective bargain- ing with Respondent. The Union was certified as the collective-bargaining representative of the employees in said unit on May 8, 1978, 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 23, 1978, and at all times thereafter, the Union has requested Respon- dent to bargain collectively with it as the exclusive collective-bargaining representative of all the em- ployees in the above-described unit. Commencing on or about May 23, 1978, 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 May 23, 1978, 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 LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its opera- tions described in section 1, above, have a close, inti- mate, and substantial relationship to trade, traffic, and commerce 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 em- body 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 commenc- es to bargain in good faith with the Union as the recognized bargaining representative in the appropri- ate unit. See Mar-Jac Poultry Company, Inc., 136 668 VISTA HILL HOSPITAL 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 (1964); Bur- nett 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. Vista Hill Foundation d/b/a Vista Hill Hospi- tal is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Service Employees International Union, Local 102, Service Employees International Union, AFL- CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All employees of Respondent employed at its Vista Hill Hospital facility located at 3 North Second Avenue, Chula Vista, and its South Bay Guidance Center facility located at 225 Third Avenue, Chula Vista, California; excluding professional employees, social workers, physicians, registered nurses, business office clerical employees,3 administrative secretary, secretary to the Medical Director/Medical Staff Sec- retary, 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 8, 1978, 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 May 23, 1978, 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 to them in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the mean- ing 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. 3Business office clencals at the same locations compnsed unit B in the same election. As to that unit. the results were certified on January 18, 1978. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Vista Hill Foundation d/b/a Vista Hill Hospital, Chula Vista, California, its officers, agents, succes- sors, 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 Service Employees Inter- national Union, Local 102, Service Employees Inter- national Union, AFL-CIO, as the exclusive bargaining representative of its employees in the fol- lowing appropriate unit: All employees of Respondent at its Vista Hill Hospital facility located at 3 North Second Ave- nue, Chula Vista, and its South Bay Guidance Center facility located at 225 Third Avenue, Chula Vista, California: excluding professional employees, social workers, physicians, registered nurses, business office clerical employees, ad- ministrative secretary, secretary to the Medical Director/Medical Staff Secretary, 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 under- standing is reached embody such understanding in a signed agreement. (b) Post at its Chula Vista, California, locations copies of the attached notice marked "Appendix." 4 Copies of said notice, on forms provided by the Re- gional Director for Region 21, after being duly signed by Respondent's representative, shall be post- ed 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 Respondent to insure that said notices are not altered, defaced, or covered by any other material. 4 In the event that this Order is enforced by a;udgment 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 Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 669 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Notify the Regional Director for Region 21, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 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 Ser- vice Employees International Union, Local 102, Service Employees International Union, AFL- CIO, as the exclusive representative of the em- ployees 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 represen- tative of all employees in the bargaining unit de- scribed below, with respect to rates of pay, wag- es, 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 employees employed by us at our Vista Hill Hospital facility located at 3 North Sec- ond Avenue, Chula Vista, and our South Bay Guidance Center facility located at 225 Third Avenue, Chula Vista, California; excluding professional employees, social workers, physi- cians, registered nurses, business office cleri- cal employees, administrative secretary, secre- tary to the Medical Director/Medical Staff Secretary, guards and supervisors as defined in the Act. VISTA HIuL FOUNDATION d/b/a VisrA HI. L HOSPi1AIl 670