Doctors Hospital of Modesto

894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD National Medical Hospital of Modesto , Inc., d/b/a Doctors Hospital of Modesto and Stationary Engineers, Local Union No. 39, International Union of Operating Engineers, AFL-CIO. Case 20-CA-8866 May 24, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS Upon a charge filed on January 3, 1974, by Stationary Engineers, Local Union No. 39, Interna- tional Union of Operating Engineers, AFL-CIO, herein called the Union, and duly served on National Medical Hospital of Modesto, Inc., d/b/a Doctors Hospital of Modesto, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 20, issued a complaint on February 11, 1974, against Respondent, alleging that Respondent had engaged in and was engaging 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 proceeding. With respect to the unfair labor practices, the complaint alleges in substance that on November 7, 1973, following a Board election in Case 20-CA-11306, the Union was duly certified as the exclusive collective-bargaining representative of Res- pondent's employees in the unit found appropriate; i and that, commencing on or about November 28, 1973, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargain- ing representative, although the Union has requested and is requesting it to do so. On February 20, 1974, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On March 7, 1974, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on March 13, 1974, 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, entitled "Res- pondent's Answer to Notice To Show Cause." Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority 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 response to the Notice To Show Cause, the Respondent denies that in the underlying representation Case 20-RC-11306 a majority of the unit employees designated and selected the Union as their exclusive representative for the purposes of collective bargaining with the Respondent because the challenged ballot of an allegedly ineligible employee was determinative of the Union's majority. Our review of the record, including the record in Case 20-RC-11306, reflects that, in the election conducted on June 8, 1973, pursuant to a Stipulation for Certification Upon Consent Election, four ballots were cast for, and four against, the Union, with one ballot, that of Edward T. Childress, challenged by the Board agent because Childress' name was not on the eligibility list. Since that ballot was sufficient to affect the results of the election, the Regional Director conducted an investigation of the challenge. On July 3, 1973, he issued his Report on Challenged Ballot in which he recommended that the challenge be overruled. He found that Childress had been injured and hospitalized and that Doctor Baker, who was caring for Childress, did not anticipate his return to work in the "foreseeable future." On the other hand, The Regional Director also found that there was no evidence that Childress had been terminated or was not on sick leave on the day of the election and that there was evidence indicating that Childress was eligible on the payroll election day. While conceding that it was arguable that Childress may not ever return to work, the Regional Director noted that Dr. Baker did not so state and that Dr. Baker's term "foreseeable future" was a very wide term. Accordingly, he found that Childress shared and retained a substantial interest in the terms and conditions of employment on election day and therefore met the eligibility requirements for voting. The Respondent filed with the Board timely exceptions to the report. After considering the entire record in the case, the Board panel, with Chairman Miller dissenting, issued on October 19, 1973, its Official notice is taken of the record in the representation proceeding, Golden Age Beverage Co, 167 NLRB 151, enfd 415 F 2d 26 (C A 5, 1969): Case 20-RC-11306, as the term "record" is defined in Secs 102 68 and Intertype Co v Penello, 269 F Supp 573 (D C Va, 1967), Follett Corp, 164 102.69(f) of the Board's Rules and Regulations , Series 8, as amended . See NLRB 378, enfd 397 F 2d 91 (C.A 7, 1968), Sec 9(d) of the NLRA. LTV Electrosystems, Inc, 166 NLRB 938, enfd 388 F 2d 683 (C A 4, 1968), 210 NLRB No. 117 DOCTORS HOSPITAL OF MODESTO 895 Decision and Order Directing the Regional Director to Open and Count Challenged Ballot and Certify Results of the Election which, in footnote 3, states as follows: The Employer's exceptions, in our opinion, raise no material issue of fact or law which would warrant reversal of the Regional Director's findings and recommendations. It is well settled Board law that an employee who is on sick leave and who has not been severed from the payroll or has not quit or has not been terminated is eligible to vote. See Wright Manufacturing Co., 106 NLRB 1234; 1236; Sandy's Stores, 163 NLRB 728, 742. Since the employee herein had not, as of the time of the election, been removed from the payroll nor had any severence of employment in fact occurred, the Employer's exceptions which mere- ly allege the Employer's intent to sever the work relationship are without merit. Pursuant to the Board's direction, the Regional Director opened and counted Childress' ballot and on October 29, 1973, issued a revised tally of ballots which showed that five ballots had been cast for, and four against, the Union. Accordingly, in the absence of objections to the revised tally, the Acting Regional Director certified the Union on November 7, 1973. In the instant proceeding, it thus appears that the Respondent is seeking to relitigate matters which were previously raised, and determined adversely to the Respondent by the Board, in the underlying representation proceeding. It is well settled that in the absence of newly discovered 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 the Respondent in this proceeding were or could have been litigated in the prior representation proceeding, and the Respondent does not offer to adduce at a hearing any newly discovered or previously unavailable evidence,3 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 the Respondent has not raised 2 See Pittsburgh Plate Glass Co v N L.R B, 313 US 146, 162 (1941), Rules and Regulations of the Board, Secs 102.67(1) and 102 69(c) 3 Among the attachments to Respondent's response to the Notice To Show Cause are two documents, one, a letter dated November 7, 1973, from Dr Baker stating , inter alga, that he did not feel that Childress "is capable of returning to his former occupation" at the Respondent's hospital, and two, a referee's "Opinion Order" of February 8, 1974, approving compromise and release of Childress' workmen's compensation claim against the Respondent ansing from his injury The Respondent asserts that these documents, constituting new evidence not previously available, require the holding of a any issue which is properly litigable in this unfair labor practice proceeding. We shall, accordingly, 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 THE RESPONDENT Respondent, a California corporation, with a place of business located at Modesto, California, is engaged in the operation of a proprietary hospital. During the past year, in the course and conduct of its business operations, Respondent received gross revenues in excess of $500,000, of which more than $50,000 was derived from nationwide health organi- zations, including Blue Cross, the United States Department of Health, Education and Welfare, and the State of California. We find, on the basis of the foregoing, that Respondent 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 Stationary Engineers, Local Union No. 39, Inter- national Union of Operating Engineers, 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 1. The unit The following employees of the Respondent constitute a unit appropriate for collective-bargain- ing purposes within the meaning of Section 9(b) of the Act: All maintenance engineers employed by the Employer at its Modesto, California, location; excluding all other employees, employees em- ployed by other employers, guards, and supervi- sors as defined in the Act. hearing We do not agree In resolving challenges to an election we must confine ourselves to an examination of the situation as it is at the time of the election At that time Childress was on sick leave and therefore eligible to vote. Respondent apparently would have us determine the challenge, at least in part, by examining whether the employee subsequent to the election returned to work. Stability in the collective-bargaining process requires that election results be determined as quickly as possible To resolve challenges of this type by waiting to see whether the employee in fact returns to work could only unnecessarily prolong the election and result in instability in the collective-bargaining process 896 DECISIONS OF NATIONAL 2. The certification On June 8, 1973, a majority of the employees of Respondent in said unit, in a secret ballot election conducted under the supervision of the Regional Director for Region 20 designated the Union as their representative for the purpose of collective bargain- ing with the Respondent. The Union was certified as the collective-bargaining representative of the em- ployees in said unit on November 7, 1973, and the Union continues 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 November 8, 1973, and at all times thereafter, the Union has requested the Respondent to bargain collectively with it as the exclusive collective-bargaining representative of all the employees in the above-described unit. Com- mencing on or about November 28, 1973, and continuing at all times thereafter to date, the Respondent has refused, and continues 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 the Respondent has, since November 28, 1973, 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, Respon- dent has engaged 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 I, above, have a close, intimate, 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 com- merce. V. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning 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 appropriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. LABOR RELATIONS BOARD In order to insure that the employees in the appropriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certifica- tion as beginning on the date Resp dent commenc- es to bargain in good faith with t e Union as the recognized bargaining representativ 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); Burnett 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 1. National Medical Hospital of Modesto, Inc., d/b/a Doctors Hospital of Modesto, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Stationary Engineers, Local Union No. 39, International Union of Operating Engineers, AFL-CIO, is a labor organization within the mean- ing of Section 2(5) of the Act. 3. All maintenance engineers employed by the Employer at its Modesto, California, location; excluding all other employees, employees employed by other employers, 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 November 7, 1973, the above-named labor organization Chas been and now is the certified and exclusive representative of all employees in the aforesaid appropriate unit for the purpose of collec- tive bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about November 28, 1973, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employ- ees of Respondent in the appropriate unit, Respon- dent has engaged 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, 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 meaning of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair DOCTORS HOSPITAL OF MODESTO 897 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 Relations Board hereby orders that Respondent, National Medical Hospital of Modesto, Inc., d/b/a Doctors Hospital of Modesto, Modesto, California, 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 conditions of employment with Stationary Engineers, Local Union No. 39, International Union of Operat- ing Engineers, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All maintenance engineers employed by the Employer at its Modesto, California, location; excluding all other employees, employees em- ployed by other employers, guards, and supervi- sors 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 Modesto, California, location copies of the attached notice marked "Appendix."4 Copies of said notice, on forms provided by the Regional Director for Region 20 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 thereaft- er, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able 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 20 in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. a 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 " CHAIRMAN MILLER, dissenting: In the Board's Decision and Order in Case 20-RC-11306, I stated that I would not "adopt and follow a mechanically applied rule that an employee on sick leave who has not quit or been terminated is per se eligible to vote." There was evidence that Childress had no reasonable expectance in the foreseeable future of returning to active employment and, therefore, his interest in employment conditions was remote and intangible . Since I believe it would have been patently unfair to permit Childress to cast the decisive vote and thus affect the future of employees who had a real and personal interest in the election, I would have sustained the challenge to his ballot and not have permitted his vote to determine the outcome of the election . While I agree with my colleagues that a hearing is not required on the basis of the Respondent's new and previously unavailable evidence , I merely note that this evidence supports and reinforces my dissenting position. In these circumstances, I would not find that the Respondent violated Section 8(a)(5) and ( 1) of the Act by refusing to bargain with the Union, and, accordingly, would deny the General Counsel's Motion for Summary Judgment. 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, hours, and other terms and conditions of employment with Stationary Engineers, Local Union No. 39, International Union of Operating Engineers, AFL-CIO. as the exclusive representative of the employees 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 representa- tive of all employees in the bargaining unit described 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 agree- ment. The bargaining unit is: All maintenance engineers employed by the Employer at its Modesto, California, 898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD location; excluding all other employees, This is an official notice and must not be defaced employees employed by other employers, by anyone. guards, and supervisors as defined in the This notice must remain posted for 60 consecutive Act. days from the date of posting and must not be altered, defaced, or covered by any other material. NATIONAL MEDICAL Any questions concerning this notice or compli- HOSPITAL OF MODESTO, ance with its provisions may be directed to the INC., D/B/A DOCTORS Board's Office, 13018 Federal Building, Box 36047, HOSPITAL OF MODESTO 450 Golden Gate Avenue, San Francisco, California (Employer) 94102, Telephone 415-556-3197. Dated By (Representative) (Title)