Garden City Hospital

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Garden City Hospital (Osteopathic) and Local 547. A-B-C, International Union of Operating Engi- neers, AFL-CIO. C'ase 7-CA 14669 June 1, 1978 DECISION AND ORDER BY CIIAIRN N FANNING AND) MI 1MIB-RS JENKINS ANI) Mt RPIIY Upon a charge filed on December 2, 1977. by Lo- cal 547, A-B-C. International Union of Operating Engineers, AFL. ('10. herein called the Union. and duly served on Garden City Hospital (Osteopathic). herein called Respondent, the General Counsel of the National L abor Relations Board, by the Regional Director for Region 7, issued a complaint on Decem- ber 21, 1977. against Respondent, alleging that Re- spondent had engaged in and was engaging in unfair labor practices affecting commerce within the mean- ing of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National L.abor Relations Act. as amended. Copies of the charge, complaint, and notice of hear- ing 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 October 31, 1977, following a Board election in Case 7-RC-14401, the Union was dulv certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate;' and that, commenc- ing on or about October 24, 1977, and at all times thereafter, 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 January 4. 1978, Respondent filed its answer to the complaint admitting in part, and denying in part. the allegations in the complaint. On January 16, 1978, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on January 27. 1978, the Board issued an order transferring the pro- ceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respondent there- Offci.al notice is taken of the record in the representation proceedilng, Case 7 RC 14401. a; the term "record" is defined in Sees. 102.68 aind 102.69(g) of the Board's Rules and Regulations. Series 8 as amended. Sece LTV Eleitroivt mt, In . 166 NL RB 938 (1967). enfd 388 F 2d 683 i('A. 4. 1968): Golden .4- BcieraiiS (Co. 167 NI.RB 151 (1967)1 enfd. 415 1 2d 26 (C.A 5. 5 1909) Inirlipr ( o v. Penci,. 269 F.Supp. 573 UI) CVa. , 1967): Foieli (Corp. 164 NlRB 78 (1967) enfd. 397 1 2d 91 ((C.A 7, 19681: Sec. 9(d) of the NiRA. a. amended after filed a statement in opposition to the Motion for Summary 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 statement in opposition to the Motion for Summary Judgment. Respondent maintains "no refusal to bargain has oc- curred herein as no valid certification can issue rela- tive to an inappropriate unit." Further, Respondent asserts. contrary to the General Counsel, that there is dispute to relevant and material facts and the find- ings related thereto which necessitates a hearing on both the unit issue and an eligibility issue. Counsel for the General Counsel argues that Re- spondent is seeking to test the validity of the election in ('ase 7-RC--14401 and the resulting Certification of Representative issued on October 31, 1977, through the medium of the instant unfair labor prac- tice proceeding. A review of the record herein, including the record in Case 7--RC 14401, shows that, pursuant to a peti- tion filed by the Union, hearings were held in the representation proceeding on July 28, 1977, and Au- gust 8 and 31. 1977. Thereafter, on September 21, 1977, the Regional Director for Region 7 issued a Decision and Direction of Election wherein he found that the following employees of the Employer consti- tute an appropriate unit: All maintenance department employees em- ployed by the Employer at its facility located at 6245 Inkster Rd.. Garden City, Michigan; but excluding all office clerical employees, profes- sional employees, confidential employees, tech- nical employees, guards and supervisors as de- fined in the Act.2 TIhereafter Respondent timely filed with the Board a request for review which was denied. On October 20, 1977, an election by secret ballot was conducted under the direction and supervision of the Regional Director among the employees in the unit described above. The tally of ballots showed that, of approximately 13 eligible voters, 11 cast bal- lots, of which 7 were cast for, and 4 were cast against, I he parties stipulated to exclude all office clerical employees, profes- slonal employees. confidential employees, technical emplosees, guards. and supervisors from ans appropriate unit The parties also stipulated. inter ahra. that Assistant Building Superintendent Wilhert I ;lrl aniels Is a super isor uithin the nieaning of the Act. and the Regional IDirector so found In additio, n. he found that the electronics technician is to he included in the unit 236 NLRB No. 57 652 GARDEN CITY HOSPITAL the Union. On October 31, 1977. the Regional l)irec- tor issued a Certification of Representative in hitch the Union was certified as the exclusive collective- bargaining representative of the employees in the aforementioned appropriate unit. By letter dated October 24. 1977, the Union re- quested that Respondent provide it with information concerning job classifications. rates of pay, and dates of hire and a list of all benefits received by emploN- ees in the appropriate unit. On November 30. 1977. and on December 8. 1977. the Union requested that Respondent enter into collective-bargaining negotia- tions with it in respect to the terms and conditions of employment of Respondent's employees in the certi- fied unit. Commencing on or about October 24. 1977. and continuing to date. Respondent has refused, and continues to refuse. to provide the Union with the requested bargaining information and to bargain col- lectively with the Union as the exclusive bargalining representative of Respondent's employees in the cer- tified unit because it contends that the unit is inap- propriate, and thus that the certification is defective. The unit and eligibility issues which Respondent seeks to raise here were before the Board in the un- derlying representation proceeding. In denyilng Re- spondent's request for review. the Board affirmed the findings made bh the Regional Director in his Deci- sion and Direction of Election wxith respect to, initr alia, said unit and eligibility issues. It thus appea.rs that Respondent is attempting to raise herein issues which were specifically considered and resolved bh\ the Regional Director and the Board in the underly- ing representation case. It is well settled that in the absence of newl\ 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.) All issues raised by Respondent in this proceeding were or could have been litigated in the prior reprc- sentation proceeding, and Respondent does not offer to adduce at a hearing any newlx 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. W'e therefore find that Respondent has not raised any issue w hich is proper- ly litigable in this unfair labor practice proceeding. Accordingly. we grant the Motion for Summary Judgment. iSee Pirrthur h Plate (;lz v (' v RIR. IlIl S 14h It 2 (l'4/): Rules and Regulations of Ihe RBoard. Sc, 102 6lf71f ald I12 h(f ")( On the basis of the entire record, the Board makes the following: F iNI)IN(S Oi F e I I Il Bt SIN SS ()f RiSPOND)I NI Respondent is engaged in the operation of a pri- vate nonprofit hospital providing health care services and has its principal office and facility at 6245 Ink- ster Road in Garden Cit.y, Michigan. During the fis- cal ,ear ending September 30. 1977. a representative period. Respondent derived gross revenues in excess of 5500.000 and, in the course and conduct of its operations. purchased and received goods and mate- rials valued in excess of $10.000 from suppliers locat- ed outside the State of Michigan. We find, on the basis of the foregoing, that Re- spondent is, and has been at all times material herein, an emplo\er engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it s ill effectuate the policies of the Act to assert juris- diction herein. 11 lIll IlABOR ()R(i\NIZAII()N INO()I.`,EI) I ocal 547. A-B-C(. International Union of Operat- ing Eingeineers, Al C('10. is a labor organization v.ithing the meanfning of Section 2(5) of the Act. 11 i IN Il \IR I BO()R PRf( II(I-FS A\. I7he Relpt'esntatlion Proctediitln I. The unit I he following emplo) ecs of Respondent constitute a unit appropriate for collective-bargaining \within the meancing of Section 9(b) of the Act: All maintenance department employees em- ploe!d bh the Emplo!er at its facilit' located at 6245 Inkster Rd.. ;Garden Cit., Michigan: but excluding, all office clerical empioyees. profes- sional employees. confidential employees, tech- nical enploNees. guards and supervisors as de- fined in the Act. 2. The certification On October 20, 1977, a majority of the emplo-ees of Respondent in said unit, in a secret-ballot election conducted under the supervision of the Regional Di- rector for Region 7, designated the Union as their representatixe for the purpose of collective bargain- inc with Respondent. The Union was certified as the collectie-bargailinin g representative of the emplo.ees DECISIONS OF NATIONAL LABOR RELATIONS BOARD in said unit on October 31. 1977, 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 Refusal Commencing on or about October 24, 1977, and at all times thereafter, the Union has requested Respon- dent to provide it with certain information which we find was necessary and relevant to collective bargain- ing,4 and to bargain collectively with it as the exclu- sive collective-bargaining representative of all the employees in the above-described unit. Commencing on or about October 24, 1977, and continuing at all times thereafter to date, Respondent has refused, and continues to refuse, to provide the requested infor- mation and to recognize and bargain with the Union as the exclusive representative for collective bargain- ing of all employees in said unit. Accordingly, we find that Respondent has, since October 24, 1977, and at all times thereafter, refused to provide the requested collective bargaining infor- mation and to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit, and that, by such refusal, Respon- dent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (I) of the Act. IV. Hii 1FIT Ii ( i I I NIAIR I.ABO)R PRA( I '(S t'lON ( ()iMi R( I. The activities of Respondent set forth in section III, above, occurring in connection with its opera- tions described in section I. 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 I:HE RIMII)Y Having found that Respondent has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a)(5) and (I) 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- 4 There is no contentihon that the requested informa.tioin ais not pertinent to the Unionl's colleci e b.argaiun ig responsibililies. 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 NLRB 785 (1962); Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (C.A. 5, 1964), cert. denied 379 U.S. 817 (1964); Bur- nett Construction Company', 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (C.A. 10, 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCTI.USIONS OF LAW 1. Garden City Hospital (Osteopathic) is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 547, A-B-C, International Union of Oper- ating Engineers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All maintenance department employees em- ployed by the Employer at its facility located at 6245 Inkster Rd., Garden City. Michigan; but excluding all office clerical employees, professional employees, confidential employees, technical employees, guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9(b) of the Act. 4. Since October 31, 1977, 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 October 24, 1977, and at all times thereafter, to provide the Union with in- formation relevant to collective bargaining and to bargain collectively with the above-named labor or- ganization as the exclusive bargaining representative of all the employees of Respondent in the appropri- ate unit, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Sec- tion 8(a)(5) of the Act. 6. By the aforesaid refusals to bargain, Respon- dent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employ- ees 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. 654 GARDEN CITY HOSPITAL 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, Garden City Hospital (Osteopathic). Garden City. Michigan, its officers, agents. successors, 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 Local 547, A-B-C, Inter- national Union of Operating Engineers, AFL-CIO. hereinafter the Union, as the exclusive bargaining representative of its employees in the following ap- propriate unit: All maintenance department employees em- ployed by the Employer at its facility located at 6245 Inkster Rd., Garden City, Michigan; but excluding all office clerical employees, profes- sional employees, confidential employees, tech- nical employees, guards and supervisors as de- fined in the Act. (b) Refusing to furnish information necessary and relevant to the Union in the performance of its bar- gaining obligation, including such information as was requested in the Union's letter of October 24, 1977. (c) 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 facility located at 6245 Inkster Road, Garden City, Michigan. copies of the attached notice marked "Appendix." 5 Copies of said notice, on forms provided by the Regional Director for Re- gion 7, after being duly signed by Respondent's rep- resentative, shall be posted by Respondent immedi- ately upon receipt thereof, and be maintained by' it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employ- ees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other mate- rial. (c) Notify the Regional Director for Region 7, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 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 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 Local 547, A-B-C, International Union of Operating Engineers, AFL-CIO, as the exclusive represen- tative of the employees in the bargaining unit described below. WE WI L NOT refuse to supply information to the above-named Union necessary and relevant to it in the performance of its bargaining obliga- tions including such information as was request- ed in the Union's letter of October 24, 1977. WF 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 agreement. The bargaining unit is: All maintenance department employees em- ployed by the Employer at its facility located at 6245 Inkster Rd., Garden City, Michigan: but excluding all office clerical employees. professional employees, confidential employ- ees, technical employees, guards and supervis- ors as defined in the Act. GARDEN CITY HOSPITAL (OSTEOPATHI() I 655