Area E-7 Hospital

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Area E-7 Hospital Association and Retail Store Employees Union, Local 418, Professional and Health Care Division. Case 14-CA-10273 November 25, 1977 DECISION AND ORDER By CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY Upon a charge filed on May 12, 1977,1 by Retail Store Employees Union, Local 418, Professional and Health Care Division, herein called the Union, and duly served on Area E-7 Hospital Association, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 14, issued a complaint on June 14, 1977,2 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 April 22, following a Board election in Case 14-RC-8347, the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate; 3 and that, commenc- ing on or about May 10 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 June 21, Respondent filed its answer to the com- plaint admitting in part, and denying in part, the allegations in the complaint. Specifically, Respon- dent admitted certain of the factual allegations of the complaint, but denied that it committed the unfair labor practices alleged. Affirmatively, Respondent asserted that the rulings upon which the Regional Director based the certification of the Union were arbitrary and capricious, constituted gross error, and departed substantially from established Board prece- dent and that the Union's certification was, there- fore, improper and invalid. I All dates herein are 1977 unless otherwise indicated. 2 The charge was amended on May 20 to allege that the Respondent had committed additional unfair labor practices. These allegations were not, however, included in the complaint. 3 Official notice is taken of the record in the representation proceeding, Case 14-RC-8347. 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 (C.A. 4, 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26 233 NLRB No. 110 On or about July 19, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment and a brief in support thereof, and thereafter, on July 22, filed a motion for leave to correct said brief.4 On August 1, the Board issued an order transfer- ring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respon- dent thereafter filed a response in opposition to the Motion for Summary Judgment and motion to dismiss the complaint. 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 and response in opposition to Motion for Summary Judgment, Respondent attacks the validity of the Union's certification, asserting that the Regional Director's rulings in the underlying repre- sentation case regarding both the challenge to the ballot of employee Sheila Lauda and Respondent's objections to the Union's preelection conduct were arbitrary and capricious, constituted gross error, and departed substantially from established Board prece- dent. The Respondent therefore contends that the Board should not have refused to entertain the Employer's motion for reconsideration of the Re- gional Director's decision in that proceeding. The General Counsel, however, contends that, because the election was conducted pursuant to an agreement for consent election, determinations of the Regional Director shall be final and binding in the absence of fraud, misconduct, or gross mistake,5 that there is no evidence that matters of fact and law now raised by Respondent were not fully investigated and consid- ered in the underlying representation case or that the Regional Director's determination was arbitrary and capricious, 6 and that the Motion for Summary Judgment should, therefore, be granted. Our review of the record herein, including the record in Case 14-RC-8347, reveals that pursuant to an agreement for consent election an election was conducted on March 24 among the employees in (C.A. 5, 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va., 1967); Follert Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA, as amended. The latter motion, which requests that a clause be deleted from the first page of the brief, is unopposed by the Respondent, and is hereby granted. 5 General Tube Company, 141 NLRB 441 (1963). 6 See, e.g., Carlisle Paper Box Company v. N.LR.B., 398 F.2d I, 56 (C.A. 3, 1968). 798 AREA E-7 HOSPITAL ASSN. three agreed-upon units, Units A, B, and C, and that the tally of ballots furnished the parties after the election for Unit A, the only unit here in question, showed 168 votes cast for, and 161 against, the Union, and that I ballot was void and 9 ballots were challenged, a sufficient number to affect the result.7 Respondent filed timely objections, limited to Unit A, alleging, in substance, that the Union engaged in substantial misrepresentations calculated to preju- dice the election. The Union also filed timely objections. After investigation, the Regional Director issued a "Decision Under Agreement for Consent Election and Certification of Representative and Certification of Results of Election" in which, as to Unit A, he sustained the challenges to the ballots of three employees, including that of Lauda, and found, inter alia, that the Union's alleged misrepresentations of fact did not provide a basis for setting aside the election. s Accordingly, the Regional Director over- ruled the Respondent's objections, and, having found that the six remaining challenged ballots would not affect the result of the election, certified the Union. Thereafter, Respondent filed a motion for recon- sideration of the Regional Director's decision regard- ing the challenge to Lauda's ballot and Respondent's objections. The Board, by letter dated May 4, advised Respondent that it would not consider Respondent's motion in light of the Board's firm policy against intervening where a party to a consent election agreement indicates disapproval of the judgment exercised by the Regional Director. 9 It is well settled that the Regional Director's determination in consent elections is final, in the absence of fraud, misconduct, or gross mistake, even though the Board might have reached a different conclusion in the first instance.' 0 Respondent's allegations are in fact an attack on the judgment of the Regional Director and on the merits of his decision as to Lauda's challenged ballot and Respon- dent's objections. The record contains nothing that would tend to support Respondent's contention that the Regional Director's determination was arbitrary or capricious and Respondent has failed herein to I The tally of ballots also showed that the Union did not receive a majority of the votes cast in Unit B and did receive a majority of the votes cast in Unit C. We note that there is no issue raised in this matter concerning Respondent's bargaining obligations with respect to Unit C. s The Regional Director further found no merit to, and therefore overruled, the Union's objections to the election, which alleged that Respondent engaged in surveillance, promised and granted increases in benefits, and made misrepresentations and threats which prejudicially affected the results of the election. 9 See the Board's Rules and Regulations and Statements of Procedure, Series 8, as amended, Secs. 102.62(a), and 101.19(a). o1 General Tube Company, supra at 445. Martin Marietta Cement, Southern Division, 215 NLRB 248 (1974). Craddock-Terry Shoe Corporanon, 181 NLRB 1059. 1060(1970). i 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). 13 In its response in opposition to the Motion for Summary Judgment show otherwise. Therefore, Respondent presents no basis for our considering the substantive merits of the Regional Director's determination. We therefore find that the certification issued with respect to Unit A was valid and final and that Respondent is seeking to relitigate in an unfair labor practice proceeding matters foreclosed by the Regional Director's final determination." 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, nor does it allege that any special circumstances exist herein which would require the Board to reexamine the decision made in the representation proceeding.' 3 We therefore find that the Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. We shall, accordingly, grant the Motion for Summary Judgment.14 On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent operates a health care facility at or near Mattoon, Illinois, and has been, at all times material herein, engaged in the business of providing and performing hospital and health care services. During the year ending December 31, 1976, which period is representative of its operation during all material times herein, Respondent, in the course and conduct of its business operation, performed services valued in excess of $500,000 and purchased and caused to be transported and delivered at its facilities and motion to dismiss complaint, Respondent contends that the closeness of the vote requires that the Board reexamine the Regional Director's decision. Respondent contends that if six employees, the challenges to whose ballots were overruled, voted against the Union as the parties anticipated, the vote would be 168 to 167 in favor of the Union, and that the challenge to Lauda's ballot which was sustained by the Regional Director would therefore be determinative. The Board refuses to engage in such speculation regarding the voting preference of employees and therefore finds no special circumstances exist herein. 14 In view of our decision to grant the General Counsel's Motion for Summary Judgment, Respondent's motion to dismiss complaint is denied. In its answer, Respondent denies that certain individuals were its supervisors "at all times material herein," but admits that certain individuals have been its agents or supervisors during various specified periods of time. Inasmuch as Respondent concedes that it has refused to recognize and bargain with the Union, we find it unnecessary to make any findings as to which individuals occupied supervisory positions on any given date. 799 DECISIONS OF NATIONAL LABOR RELATIONS BOARD goods and materials valued in excess of $50,000, which were transported and delivered to its facilities in Illinois directly from points located outside the State of Illinois. 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 Retail Store Employees Union, Local 418, Profes- sional and Health Care Division is a labor organiza- tion within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding I. 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 full-time and regular part-time service and maintenance, technical, and office clerical em- ployees employed by the Respondent at Charles- ton Community Memorial Hospital, The Mat- toon Memorial Hospital, and Sarah Bush Lincoln Health Center, excluding professional employees, guards and supervisors as defined in the Act. 2. The certification On March 24, 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 14, designated the Union as their representative for the purpose of collective bargain- ing with the Respondent. The Union was certified as the collective-bargain- ing representative of the employees in said unit on April 22, 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 April 28, 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 em- ployees in the above-described unit. Commencing on or about May 10, 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 May 10, 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 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 1, 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. 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 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); 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. Area E-7 Hospital Association is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 800 AREA E-7 HOSPITAL ASSN. 2. Retail Store Employees Union Local 418, Professional and Health Care Division, is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time service and maintenance, technical, and office clerical employees employed by Respondent at Charleston Community Memorial Hospital, the Mattoon Memorial Hospital, and Sarah Bush Lincoln Health Center, excluding 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 April 22 the above-named labor organi- zation has 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 May 10, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employees of Respondent in the appropriate unit, Respondent 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)( ) 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 Relations Board hereby orders that Respondent, Area E-7 Hospital Association, Mattoon, Illinois, 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 Retail Store Employ- ees Union, Local 418, Professional and Health Care Division, as the exclusive bargaining representative of its employees in the following appropriate unit: All full-time and regular part-time service and maintenance, technical, and office clerical em- ployees employed by the Respondent, at Charles- ton Community Memorial Hospital, the Mattoon Memorial Hospital, and Sarah Bush Lincoln Health Center, excluding professional employees, 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 Charleston Community Memorial Hospital, the Mattoon Memorial Hospital, and Sarah Bush Lincoln Health Center copies of the attached notice marked "Appendix." 15 Copies of said notice, on forms provided by the Regional Director for Region 14, 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 thereafter, in conspicu- ous 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 14, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 15 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 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 Retail Store Employees Union, Local 418, Professional and Health Care Division, 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. 801 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 full-time and regular part-time service and maintenance, technical, and office clerical employees employed by the Employ- er at Charleston Community Memorial Hospital, The Mattoon Memorial Hospital, and Sarah Bush Lincoln Health Center, excluding professional employees, guards and supervisors as defined in the Act. AREA E-7 HOSPITAL ASSOCIATION 802