Mommouth Medical Center

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Monmouth Medical Center and Hospital Profession- als and Allied Employees of New Jersey. Case 22- CA-8222 June 15. 1978 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND MURPHY Upon a charge filed on February 21, 1978, by Hos- pital Professionals and Allied Employees of New Jer- sey, herein called the Union, and duly served on Monmouth Medical Center, herein called Respon- dent, the General Counsel of the National Labor Re- lations Board, by the Regional Director for Region 22, issued a complaint on March 10, 1978, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affect- ing commerce within the meaning of Section 8(a)(5) and (I) and Section 2(6) and (7) of the National La- bor Relations Act, as amended. Copies of the charge, complaint, and notice of 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 January 20, 1978, following a Board election in Case 22-RC-7125, 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 February 7, 1978, 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 March 27, 1978, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint, and setting forth a defense thereto. On April 7, 1978, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on April 14, 1978, 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. Official notice is taken of the record in the representation proceeding, Case 22 RC 7125, 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, Incs, 166 NLRB 938 (1967), enfd 388 F.2d 683 (C.A 4, 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26 (C.A. 5. 1969): Inreritpe Co. v. Penello, 269 F.Supp. 573 (D.C.Va., 1967): Follett Corp., 164 NLRB 378 (1967), enfd 397 F.2d 91 (C.A. 7. 19681. 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, the Respondent admits all of the factual allegations of the complaint except those re- lating to the election results and the validity of the certification of the election results in Case 22-RC- 7125, the Union's request to bargain collectively, and Respondent's refusal to bargain with the Union, which it denies. The Respondent also asserts as a separate defense that the Certification of Representa- tive issued by the Board in Case 22-RC-7125 on Jan- uary 20, 1978, is invalid. In its response to the Notice To Show Cause, Respondent contends, in effect, that the Board improperly overruled its objections to the election in the underlying representation case, and, therefore, the Board's certification of the Union as the collective-bargaining representative of Respon- dent's full-time and regular part-time registered nurs- es and graduate nurses is invalid and cannot be made the basis for a refusal-to-bargain allegation. This is- sue has already been litigated in the prior representa- tion proceeding. It is well settled that in the absence of newly discovered or previously unavailable evi- dence 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 proceed- ing.2 Respondent does not offer to adduce at a hear- ing any newly discovered or previously unavailable evidence, nor does it allege that any special circum- stances exist herein which would require the Board to reexamine the decision made in the representation proceeding. We therefore find that Respondent's contention that the Board's certification is invalid does not raise an issue which is properly litigable in this unfair labor practice proceeding. Respondent also denies the allegations in the com- plaint that the Union has requested that it bargain with the Union and that it has refused to bargain with the Union. However, the Respondent admits in its answer that the Union sent it a letter dated Febru- ary 7, 1978, and that it sent the Union a letter dated February 24, 1978, both of which are attached to Re- spondent's answer as exhibits. The February 7 letter states, in pertinent part, the following: "Pursuant to the certification of representation from the National 2 See 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). 236 NLRB No. 104 960 MONMOUTH MEDICAL CENTER Labor Relations Board, be advised that this union is ready, willing and able to negotiate on behalf of the RN's in the bargaining unit." The February 24 letter states, in pertinent part: "This will acknowledge your letter dated February 7, 1978 .... [W]e have decid- ed to appeal [the Board's decision in Case 22-RC- 7125] to the U.S. Circuit Court of Appeals for judi- cial review .... [T]he statutory scheme created by Congress requires that the Medical Center in order to obtain judicial review must refuse to bargain with your organization .... " We find that these letters consitute a request to bargain by the Union and a refusal to bargain in response thereto by Respon- dent. Accordingly, we shall grant the Motion for Summary Judgment.3 On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent engages in the business of providing and performing health care services for the sick and infirmed and related services. During the 12 months preceding issuance of the complaint herein, which period is representative of its operations during all times material hereto, Re- spondent received gross revenues in excess of $250,000, and received goods and materials valued in excess of $50,000 which were transported to Respon- dent directly from States located outside the State of New Jersey. We find, on the basis of the foregoing, that Re- spondent 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 juris- diction herein. 11. THE LABOR ORGANIZATION INVOLIVED Hospital Professionals and Allied Employees of New Jersey is a labor organization within the mean- ing of Section 2(5) of the Act. 111. TiHE UNFAIR LABOR PRAC(TICES A. The Representation Proceeding 1. The unit The following employees of Respondent consitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All full-time and regular part-time registered nurses and graduate nurses employed by the Employer at its Long Branch, New Jersey. medi- cal facilities, including clinical nurse specialists, epidemiologist, IV nurses, nurse anesthetist, home training nurses-renal dialysis, and charge nurses (except charge nurse in anesthesiology, cardiac-catheterization, and radiology), but ex- cluding, head nurses, assistant head nurses. charge nurse in anesthesiology, cardiac-catheter- ization, and radiology, administrative assistants, staff development coordinators, patient services coordinators, HIS coordinator, utilization re- view coordinators, coordinator of medical audit, coordinator-hypertension. assistant director per- inatal education. clinical research assistants. coordinator-consumer education, nursing care coordinators, operating room supervisor, and all other professional employees, technical employ- ees, service and maintenance employees, office and laboratory clerical employees, guards, and supervisors as defined in the Act, and all other employees. 2. The certification On June 16, 1977. 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 22, 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 January 20, 1978, 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 3 The General Counsel's request for expenses incurred in the investiga- tion, preparation and conduct of this case, and other related expenses incur- red as a result of Respondent's refusal to bargain, is denied as we do not find Respondent's defense herein to be frivolous. Heck's Inc.. 215 NLRB 765 (1974); Amsterdam Printing and Litho Corp., 223 NLRB 370 (1976). enfd. sub nom. Local 259. Graphic Arts International Union. AFL (IO v N.L.R.B.. 559 F 2d 187 (C.A.D.C.. 1977). Commencing on or about February 7, 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 February 24, 1978, and continuing at all times thereafter to date, Respondent has refused, and 961 DECISIONS OF NATIONAL LABOR RELATIONS BOARD continues to refuse, to recognize and bargain with the Union as the exclusive representative for collec- tive bargaining of all employees in said unit. Accordingly, we find that Respondent has, since February 24, 1978, and at all times thereafter, re- fused to bargain collectively with the Union as the exclusive representative of the employees in the ap- propriate unit, and that, by such refusal, Respondent has engaged in and is engaging in unfair labor prac- tices 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 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. 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 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: CONCLUSIONS OF LAW I. Monmouth Medical Center is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Hospital Professionals and Allied Employees of New Jersey is a labor organization within the mean- ing of Section 2(5) of the Act. 3. All full-time and regular part-time registered nurses and graduate nurses employed by the Em- ployer at its Long Branch, New Jersey, medical facil- ities, including clinical nurse specialists, epidemiolo- gist, IV nurses, nurse anesthetist, home training nurses-renal dialysis, and charge nurses (except charge nurse in anesthesiology, cardiac-catheteriza- tion and radiology), but excluding head nurses, assis- tant head nurses, charge nurse in anesthesiology, car- diac-catheterization and radiology, administrative assistants, staff development coordinators, patient services coordinators, HIS coordinator, utilization review coordinators, coordinator of medical audit, coordinator-hypertension, assistant director perinatal education, clinical research assistants, coordinator- consumer education, nursing care coordinators, op- erating room supervisor, and all other professional employees, technical employees, service and mainte- nance employees, office and laboratory clerical em- ployees, guards, and supervisors as defined in the Act, and all other employees, constitute a unit appro- priate for the purposes of collective bargaining with- in the meaning of Section 9(b) of the Act. 4.. Since January 20, 1978, 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 February 24, 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)(l) of the Act. 7. The aforsaid 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 Re- lations Board hereby orders that the Respondent, Monmouth Medical Center, Long Branch, New Jer- 962 MONMOUTH MEDICAL CENTER sey, 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 Hospital Professionals and Allied Employees of New Jersey as the exclusive bargaining representative of its employees in the fol- lowing appropriate unit: All full-time and regular part-time registered nurses and graduate nurses employed by the Employer at its Long Branch, New Jersey, medi- cal facilities, including clinical nurse specialists, epidemiologist, IV nurses, nurse anesthetists. home training nurses-renal dialysis, and charge nurses (except charge nurse in anesthesiology, cardiac-catheterization and radiology), but ex- cluding head nurses, assistant head nurses, charge nurse in anesthesiology, cardiac-catheter- ization and radiology, administrative assistants, staff development coordinators, patient services coordinators, HIS coordinator, utilization re- view coordinators, coordinator of medical audit, coordinator-hypertension, assistant director per- inatal education, clinical research assistants, coordinator-consumer education, nursing care coordinators, operating room supervisor, and all other professional employees, technical employ- ees, service and maintenance employees, office and laboratory clerical employees, guards. and supervisors as defined in the Act, and all other employees. (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 facility in Long Branch, New Jersey, copies of the attached notice marked "Appendix." 4 Copies of said notice, on forms provided by the Re- gional Director for Region 22, 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. (c) Notify the Regional Director for Region 22, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. MEMBER MURPHY. dissenting: For the reasons previously expressed in my dis- senting opinion in the underlying representation pro- ceeding, Monmouth Medical Center, 234 NLRB 328 (1978), I would deny the General Counsel's Motion for Summary Judgment here. 4In the event that this Order is enforced by a Judgment of a LUnited States (court of Appeals. the words in the notice reading "Posted by Order of the National l.abor Relations Board" shall read "Posted Pursuant to a Judgnlent of the Utnited States Court of Appeals Enforcing an Order of the National I abhor Relations Board." APPENDIX NoTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government Section 7 of the National Labor Relations Act gives all employees these rights: To organize themselves To form, join, or help unions To act together for collective bargaining or other mutual aid or protection To bargain collectively through representa- tives of their own choosing To refuse to do an) or all of these things. WE Wilt NOT refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Hos- pital Professionals and Allied Employees of New Jersey as the exclusive representative of the employees in the bargaining unit described be- low. 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 agreement. The bargaining unit is: All full-time and regular part-time registered 963 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nurses and graduate nurses employed by the Employer at its Long Branch, New Jersey, medical facilities, including clinical nurse spe- cialists. epidemiologist, IV nurses, nurse anes- thetist, home training nurses-renal dialysis. and charge nurses (except charge nurse in an- esthesiology, cardiac-catheterization, and ra- diology), but excluding head nurses. assistant head nurses, charge nurse in anesthesiology. cardiac-catheterization, and radiology, ad- ministrative assistants, staff development coordinators, patient services coordinators, HIS coordinator, utilization review coordina- tors, coordinator of medical audit, coordina- tor-hypertension, assistant director perinatal education, clinical research assistants, coordi- nator-consumer education, nursing care coor- dinators, operating room supervisor, and all other professional employees, technical em- ployees, service and maintenance employees, office and laboratory clerical employees, guards, and supervisors as defined in the Act, and all other employees. MONMOUTH MEDICAL CENTER 964