Memorial Hospital of Roxborough

402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Memorial Hospital of Roxborough and Local 835, In- ternational Union of Operating Engineers, AFL- CIO. Case 4-CA-7003 September 17, 1975 DECISION AND ORDER Upon an amended charge filed on November 11, 1974,' by Local 835, International Union of Operat- ing Engineers, AFL-CIO, herein called the Union, and duly served on Memorial Hospital of Roxbor- ough, herein called the Union, and duly served on Memorial Hospital of Roxborough, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Acting Regional Di- rector for Region 4, issued a complaint on November 29, 1974, against Respondent, alleging that Respon- dent had engaged in and was engaging in unfair la- bor 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. Cop- ies 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 com- plaint alleges in substance that on or about March 25, 1974, following a secret ballot election conducted by the Pennsylvania Labor Relations Board, the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate; and that commencing on or about August 14, 1974, and at all times thereaf- ter, 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 December 9, 1974, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On February 21, 1975, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on April 25, 1975, 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- after filed a Motion To Dismiss Complaint and a response to the Notice to Show Cause entitled "Statement in Opposition to Motion for Summary Judgment." ' The initial charge was filed on September 9, 1974. 2 217 NLRB No. 99 (1975). Upon the entire record in this proceeding the Board makes the following: Ruling on the Motion for Summary Judgment In its answer and motion to dismiss the complaint, Respondent argues, inter alia, that the Board should not extend comity to the certification of the Union issued by the Pennsylvania Labor Relations Board (hereafter "the PLRB") because the election was marred by objectionable conduct engaged in by the Union, and the unit found appropriate therein is in- imical to the provisions of the Act in light of the recent hospital amendments? In addition, Respon- dent alleges that it had no obligation to bargain be- cause the Union did not request it to bargain after August 25, 1974, the effective date of the hospital amendments. On the other hand, the General Coun- sel argues that the Board should extend comity to the certification issued by the PLRB since matters relat- ing to the election have been previously resolved by the PLRB, and the unit in which the election was conducted is not contrary to the provisions of the Act. The General Counsel also contends that the Union's initial demand for bargaining should be viewed as a continuing one, and that the filing of a charge on September 9, 1974, and an amended charge on November 11, 1974, should be considered as a renewal of the Union's request to bargain. We agree with the General Counsel that the threshold question before us is whether we should extend comi- ty to the certification of the PLRB, thereby finding the Respondent, under Section 8(a)(5) of the Act, is obligated to bargain with the Union as the duly elect- edxepresentative of the majority of employees in the appropriate unit. Our review of the facts reveals that, pursuant to the Pennsylvania Public Employees Relations Act, an election, conducted by the PLRB, was held on October 10, 1973, in a unit of "all full and regular part-time Maintenance Department Employees (Maintenance-Plant Operations) ..." 4 in which a majority of the employees selected the Union as their representative. Thereafter, Respondent filed unfair labor practice charges against the Union. The PLRB I Public Law 93-360, effective August 25, 1974. 4 The complete unit description reads as follows: All full and regular part-time Maintenance Department Employees (Maintenance-Plant Operations) including : Engineers, Assistant Engi- neers, Electricians, Electrician Helpers, Carpenters, Carpenter Helpers, Plumbers, Plumber Helpers, Refrigeration and Air Conditioning Me- chanics, Refrigeration and Airconditioning Mechanic Helpers, Paint- ers, Painter Helpers, Senior Maintenance Mechanics, Maintenance Mechanic Helpers and all other Maintenance Mechanics classifications now recognized by the Employer; and excluding all other employees, including but not limited to, office and clerical employees, medical personnel, technicians, nurses, laboratory employees, orderlies , guards, supervisors and first level supervisory personnel as defined in the Act. 220 NLRB No. 73 MEMORIAL HOSPITAL OF ROXBOROUGH dismissed the charges on March 15, 1974, and issued a certification of the Union which became final on March 25, 1974. Respondent excepted to the dismiss- al of the unfair labor practice charges, and on July 2, 1974, the PLRB issued a final order of dismissal. Thereafter on August 14, 1974, the Union requested bargaining and Respondent refused. We will recognize the results of an election con- ducted by a responsible state agency, and therefore extend comity to a certification issued pursuant to such an election, where the state agency's election procedures conform to due-process requirements and effectuate the policies of the Acts We have reviewed the decisions, orders, and certifications issued by the PLRB in the completed proceeding before that agen- cy and have considered Respondent's exceptions and supporting arguments to the authority of those docu- ments. Having done so, we find no basis in due-pro- cess standards and the policies embedded in the Act to warrant a refusal by this Board to recognize the authority of the certification of the PLRB in this pro- ceeding. We shall, therefore, accord the certification the same effect we would attach to one of our own .6 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) of the Act is not entitled to relitigate issues which were or could have been litigated in a prior representation proceeding .7 All issues raised by the Respondent in this pro- ceeding were or could have been litigated in the prior representation proceeding, and the Respondent does not offer to adduce at a hearing any newly discov- ered or previously unavailable evidence, nor does it allege that any special circumstances exist herein which would require the Board to reexamine the de- cision made in the representation proceeding. We therefore find that the Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. However, as indicated above, Respondent alleges that it was under no obligation to bargain because the Union did not request it to do so after August 25, 1974, the effective date of the hospital amendments. The case relied upon by Respondent, United States Postal Service,8 is inapposite for in that case, which involved alleged violations of Section 8(a)(1) and (3) of the Act, the Board found that "All operative facts" of the unfair labor practices occurred "at a 3 Bluefield Produce & Provision Company, 117 NLRB 1660 (1957); The West Indian Co., Ltd., 129 NLRB 1203 (1961 ); Screen Print Corporation, 151 NLRB 1266 (1965). 6 Cornell University, 183 NLRB 329 (1970). 7 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). a 200 NLRB 413 (1972). 403 time when plaintiffs were subject to the provisions of the Executive Order" and not the National Labor Relations Act. We note, in contrast, that a request to bargain is a continuing one, and in addition that the filing of the initial charge on September 9, 1974, and the amended charge on November 11, 1974, acted to renew the request to bargain? We hold therefore that the Respondent is under a continuing obligation to bargain with the Union and its refusal to do so vio- lates Section 8(a)(5) and (1) of the Act. Accordingly, we shall grant the General Counsel's Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT At all times material herein, the Respondent has been, and is now, a nonprofit corporation duly orga- nized under, and existing by virture of, the laws of the Commonwealth of Pennsylvania and is engaged in providing health services in the Roxborough, Ma- nayunk, and adjacent communities located in the Commonwealth of Pennsylvania. During the past year Respondent, in the course and conduct of its business operations, performed services valued in ex- cess of $500,000. During the same period, Respon- dent purchased and received goods valued in excess of $50,000 directly from firms located outside the Commonwealth of Pennsylvania. We find, on the basis of the foregoing, that Re- spondent is, and has been at all times material here- in, 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. II. THE LABOR ORGANIZATION INVOLVED Local 835, International Union of Operating Engi- neers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of the Respondent con- stitute a unit appropriate for collective-bargaining 9 Sewanee Coal Operators Association, 167 NLRB 172, In. 3 (1967). 404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD purposes within the meaning of Section 9(b) of the Act: IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE All full and regular part-time Maintenance De- partment Employees (Maintenance -Plant Oper- ations) including : Engineers, Assistant Engi- neers, Electricians, Electrician Helpers, Carpenters, Carpenter Helpers, Plumbers, Plumber Helpers, Refrigeration and Air-Condi- tioning Mechanics , Refrigeration and Aircondi- tioning Mechanic Helpers, Painters, Painter Helpers, Senior Maintenance Mechanics, Main- tenance Mechanic Helpers and all other Mainte- nance Mechanics classifications now recognized by the Employer; and excluding all other em- ployees, including but not limited to, office and clerical employees, medical personnel, techni- cians, nurses, laboratory employees, orderlies, guards, supervisors and first level supervisory personnel as defined in the Act. 2. The certification On October 10, 1973, a majority of the employees of Respondent in said unit , in a secret ballot election conducted under the supervision of the Pennsylvania Labor Relations Board 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 March 25, 1974, 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 August 14, 1974, and at all times thereafter, the Union has requested the Re- spondent 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 August 14, 1974, 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 August 14, 1974, and at all times thereafter, refused 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. 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 1. Memorial Hospital of Roxborough is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 835, International Union of Operating Engineers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All full and regular part-time Maintenance De- partment Employees (Maintenance -Plant Opera- tions) including : Engineers, Assistant Engineers, Electricians, Electrician Helpers, Carpenters, Car- penter Helpers, Plumbers, Plumber Helpers , Refrig- eration and Air-Conditioning Mechanics, Refrigera- tion and Airconditioning Mechanic Helpers, Painters, Painter Helpers, Senior Maintenance Me- chanics, Maintenance Mechanic Helpers and all other Maintenance Mechanics classifications now MEMORIAL HOSPITAL OF ROXBOROUGH recognized by the Employer; and excluding all other employees, including but not limited to, office and clerical employees, medical personnel, technicians, nurses, laboratory employees, orderlies, guards, su- pervisors and first level supervisory personnel as de- fined 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 March 25, 1974, 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 August 14, 1974, 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. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that Respondent Memo- rial Hospital of Roxborough, Pennsylvania, its offi- cers, 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 Local 835, International Union of Operating Engineers, AFL-CIO, as the ex- clusive bargaining representative of its employees in the following appropriate unit: All full and regular part-time Maintenance De- partment Employees (Maintenance-Plant Oper- ations) including: Engineers, Assistant Engi- neers, Electricians, Electrician Helpers, Carpenters, Carpenter Helpers, Plumbers, Plumber Helpers, Refrigeration and Air-Condi- tioning Mechanics, Refrigeration and Aircondi- tioning Mechanic Helpers, Painters, Painter Helpers, Senior Maintenance Mechanics, Main- 405 tenance Mechanic Helpers and all other Mainte- nance Mechanics classifications now recognized by the Employer; and excluding all other em- ployees, including but not limited to, office and clerical employees, medical personnel, techni- cians, nurses, laboratory employees, orderlies, guards, supervisors and first level supervisory personnel 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 Memorial Hospital of Roxborough copies of the attached notice marked "Appendix." 10 Copies of said notice, on forms provided by the Re- gional Director for Region 4, after being duly signed by a Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereaf- ter, in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable 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 4, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. MEMBER PENELLO, dissenting: Generally we give comity to state board certifica- tions. However, in my opinion, in cases involving nonprofit health care facilities, a relatively new area of Board jurisdiction, we should not blindly give comity where there has been a recent state board certification and no intervening or prior collective- bargaining history. Accordingly, I would deny both the Respondent's Motion To Dismiss Complaint and the General Counsel's Motion for Summary Judg- ment, and instead I would remand the case to an Administrative Law Judge for the purpose of con- ducting a hearing, making findings of fact, and mak- ing recommendations to the Board regarding the ap- 10 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." 406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD, propriateness of a maintenance unit at this facility. 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 835, International Union of Operating Engi- neers, AFL-CIO, as the exclusive representative of the employees in the bargaining unit de- scribed 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 em- ployment, and, if an understanding is reached, embody such understanding in a signed agree- ment. The bargaining unit is: All full and regular part-time Maintenance Department Employees (Maintenance-Plant Operations) including : Engineers, Assistant Electricians, Electrician Helpers , Carpenters, Carpenter Helpers, Plumbers, Plumber Help- ers, Refrigeration and Air Conditioning Me- chanics, Refrigeration and Airconditioning Mechanic Helpers, Painters, Painter Helpers, Senior Maintenance Mechanics , Maintenance Mechanic Helpers and all other Maintenance Mechanics classifications now recognized by the Employer ; and excluding all other em- ployees, including but not limited to, office and clerical employees , medical personnel, technicians, nurses, laboratory employees, or- derlies, guards, supervisors and first level su- pervisory personnel as defined in the Act. MEMORIAL HOSPITAL OF ROXBOROUGH