St. Francis Hospital of Lynwood

DECISIONS OF NATIONAL LABOR RELATIONS BOARD St. Francis Hospital of Lynwood, a Corporation and United Nurses Associations of California (UNAC).1 Case 21-CA-15249 September 16, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY Upon a charge filed on November 19, 1976, by United Nurses Associations of California (UNAC), herein called the Charging Party, and duly served on St. Francis Hospital of Lynwood, a Corporation, herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 21, issued a complaint and notice of hearing on November 23, 1976, 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 record shows that on November 1, 1976, following a Board election in Case 21-RC-14718, St. Francis Registered Nurses Association, United Nurses Asso- ciations of California, herein called the Union, was duly certified as the exclusive collective-bargaining representative of Respondent's employees in the unit found appropriate; 2 and that, commencing on or about November 8, 1976, 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 November 29, 1976, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On December 13, 1976, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on January 3, 1977, 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. On January 10, 1977, the Union filed its Motion for I Although the charge in this case was filed by United Nurses Associations of California (UNAC), the Board's certification was issued to St. Francis Registered Nurses Association, United Nurses Associations of California, as the exclusive bargaining representative. Thus, all references herein to the certified Union will be to St. Francis Registered Nurses Association, United Nurses Associations of California. 2 Official notice is taken of the record in the representation proceeding, 232 NLRB No. 6 Summary Judgment, adopting the General Counsel's Motion for Summary Judgment, and requesting that the Board, in ruling on the Motion for Summary Judgment, grant, in addition to a bargaining order, certain specific relief. Respondent thereafter filed a response to Notice To Show Cause, entitled "Em- ployer's Opposition to Motion for Summary Judg- ment." On May 16, 1977, the Union filed a request for oral argument confined to the issue of the proper remedy in this case. Respondent's opposition to that request was filed May 24, 1977, and on June 1, 1977, the Charging Party filed its reply to Respondent's opposition. 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 to the Notice To Show Cause, Respondent denies the appropriateness of the unit, principally contending that the appropriate unit would consist of all professional employees and that, because of the exclusion of its evidence in support of such a unit, the record is inadequate. In his Motion for Summary Judgment, counsel for the General Counsel contends that Respondent seeks to relitigate matters previously considered by the Board and found to be lacking in substance and that there are no new factual issues which warrant a hearing. We agree. Review of the record, including that in the representation proceeding, Case 21-RC-14718, shows that, at the hearing on the Union's petition for a unit of all registered nurses, Respondent made an offer of proof in support of its contention that the registered nurses share a community of interest with other professional employees of Respondent and that the only appropriate unit would consist of all professional employees. The Hearing Officer refused to allow the introduction of such evidence or additional evidence as to the alleged supervisory status of assistant registered nurses. Respondent also contended that, if a unit of registered nurses were found to be appropriate, it should exclude registered nurses not employed in the Nursing Services Divi- sion. After submission of briefs, the Regional Case 21-RC-14718, 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 (C.A. 5, 1969); Intertype 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, 1968); Sec. 9(d) of the N LRA, as amended. 32 ST. FRANCIS HOSP. OF LYNWOOD Director on September 22, 1976, issued his Decision and Direction of Election. Contrary to Respondent, he found no error in the Hearing Officer's evidenti- ary rulings, finding (1) that the refusal to receive evidence in support of an all-professional unit involved no prejudice to Respondent in light of the Board's decision in Methodist Hospital of Sacramento, Inc., 3 and Mercy Hospitals of Sacramento, Inc., 4 and (2) that the Hearing Officer correctly excluded, as cumulative, proffered testimony as to the supervisory status of assistant head nurses. With respect to the unit issues, the Regional Director found that (1) based on the Board's finding in Mercy that "regis- tered nurses possess, among themselves, interests evidencing a greater degree of separateness than those possessed by most other professional employ- ees in the health care industry." Respondent's registered nurses constitute a separate appropriate unit distinct from other professional employees, and (2) such a unit would include all the registered nurses both within and without the Nursing Services Division and assistant head nurses who are not statutory supervisors, but employees. In its request for review by the Board, brief in support, and supplementary telegram, Respondent, in substance, reiterated (1) its position on unit scope and placement, urging the Board to reconsider Mercy, and (2) its contention that the Hearing Officer's evidentiary rulings constituted prejudicial error. With respect to the exclusion of evidence supporting an all-professional unit, Respondent argued that, in finding the ruling not prejudicial, the Regional Director had relied exclusively on the unit determinations in Mercy and Methodist and that the exclusion constituted a denial of due process and was contrary to the Act and Board precedent and rules. On October 20, 1976, the Board denied Respondent's request for review for lack of substantial issues warranting review. It accordingly appears that Respondent has raised no issue that it did not raise in the 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 3 223 NLRB 1509(1976). 4 217 NLRB 765 (1975). 5 See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 162 (1941): Rules and Regulations of the Board, Sees. 102.67(f) and 102.69(c). e Respondent contends that granting the Motion for Summary Judgment would contravene Rule 402 of the Federal Rules of Evidence, sec. 554 (a), (cX I), (2), and 556(d) of the Administrative Procedure Act and Rule 56(c) of the Federal Rules of Civil Procedure by further denying Respondent the ability to introduce relevant unit evidence, and thereby excluding material facts. Accordingly, Respondent seeks a hearing in this proceeding to present its evidence in support of an all-professional unit. We find no merit in this contention. By denying Respondent's request for review of the Regional Director's Decision affirming the Hearing Officer's refusal to accept Respondent's offer of proof, the Board implicitly found Respondent's to relitigate issues which were or could have been litigated in a prior representation proceeding.5 All issues raised by Respondent in this proceeding were or could have been litigated in the prior representation proceeding, and 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. We therefore find that Respondent has not raised any issue which is properly litigable in this unfair labor practice proceedings We shall, accordingly, grant the Motion for Summary Judgment. In its request for specific relief, the Union seeks an order that Respondent pay (1) an amount of money sufficient to compensate employees for monetary improvement that in all likelihood they would have enjoyed if good-faith bargaining had occurred, and (2) litigation expenses to the Union and to the Board. We decline to grant the Union's request. By its request for compensation to employees, the Union in effect is asking the Board to impose financial liability based on a determination as to what contract terms should have been reached had Respondent fulfilled its duty to bargain in good faith. 7 Since the Board is without power to compel parties to agree to any substantive provision of a collective-bargaining contract,8 we decline to order damages based on speculation as to what contract terms should have been. Nor will we grant the Union's request for litigation expenses as we do not find Respondent's defense herein to be patently frivolous.9 On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent, a health care institution within the meaning of Section 2(14) of the Act, is a California corporation engaged in the business of operating an acute care hospital at 3630 Imperial Highway, Lynwood, California. In the normal course and conduct of its business operations during the past 12- proffered evidence to be irrelevant and immaterial and therefore a hearing is not warranted, That determination may not be relitigated herein. 7 Ex-Cell-O Corporation, 185 NLRB 107, 110(1970). 8 H. K. Porter Co., Inc. v. N.L R.B., 397 U.S. 99 (1970). Heck's, Inc., 215 NLRB 765 (1974). Amsterdam Printing and Litho Corp., 223 NLRB 370 (1976), enfd. sub nom Local 259, Graphic Arts Internat Unional , AFL-CIO v. N.LRB., 559 F.2d 187 (C.A.D.C., 1977). We also reject the Charging Party's request for oral argument on this issue since we find no merit in its contention that unions in the health care industry are peculiarly susceptible to refusal-to-bargain violations and since the positions of the parties with respect to the issues of a proper remedy are adequately set forth in their detailed submissions on that issue. Member Murphy would grant the request for oral argument as to the proper remedy to be adopted. 33 DECISIONS OF NATIONAL LABOR RELATIONS BOARD month period, which period is representative, Re- spondent had gross revenue in excess of $500,000 and purchased and received goods valued in excess of $5,000 directly from suppliers located outside of 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. 11. THE LABOR ORGANIZATION INVOLVED St. Francis Registered Nurses Association, Unit- ed Nurses Associations of California, 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 Respondent constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All registered nurses employed by Respondent at its facility located at 3630 Imperial Highway, Lynwood, California; excluding all other employ- ees, office clerical employees, guards, and super- visors as defined in the Act. 2. The certification On October 21, 1976, 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 21, 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 is said unit on November 1, 1976, 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 October 22 and Novem- ber 2, 1976, and at all times thereafter, the Union has requested Respondent to bargain collectively with it as the exclusive collective-bargaining representative of all the employees in the above-described unit, and to furnish relevant and necessary information con- cerning collective bargaining. Commencing on or about November 8, 1976, and continuing at all times thereafter to date, 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, and to provide it with such information. Accordingly, we find that Respondent has, since November 8, 1976, 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, and to provide the Union, on request, information relevant and necessary for collective bargaining. 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 com- mences to bargain in good faith with the Union as the recognized bargaining representative in the appropriate 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: 34 ST. FRANCIS HOSP. OF LYNWOOD CONCLUSIONS OF LAW 1. St. Francis Hospital of Lynwood, a Corpora- tion, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. St. Francis Registered Nurses Association, United Nurses Associations of California, is a labor organization within the meaning of Section 2(5) of the Act. 3. All registered nurses employed by Respondent at its facility located at 3630 Imperial Highway, Lynwood, California; excluding all other employees, office clerical 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 November 1, 1976, the above-named labor organization 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 November 8, 1976, 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 and to provide it with information relevant and necessary for the purpose of collective bargaining, Respondent has engaged in and is engaging in unfair labor practices within 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 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 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 the Respondent, St. Francis Hospital of Lynwood, a Corporation, Lynwood, California, 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 conditions of employment with St. Francis Regis- tered Nurses Association, United Nurses Associa- tions of California, as the exclusive bargaining representative of its employees in the following appropriate unit: All registered nurses employed by Respondent at its facility located at 3630 Imperial Highway, Lynwood, California; excluding all other employ- ees, office clerical employees, guards, and super- visors as defined in the Act. (b) Refusing to provide the above-named labor organization, upon request, information relevant and necessary for the purpose of collective bargaining. (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, and provide the Union, upon request, information relevant and necessary for the purpose of collective bargaining. (b) Post at its Lynwood, California, facility copies of the attached notice marked "Appendix." '1 Copies of said notice, on forms provided by the Regional Director for Region 21, 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 thereaf- ter, 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 21, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 'O 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 St. Francis Registered Nurses Association, United 35 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Nurses Associations of California, as the exclu- sive 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 registered nurses employed by Re- spondent at its facility located at 3630 Imperial Highway, Lynwood, California; excluding all other employees, office clerical employees, guards, and supervisors as de- fined in the Act. ST. FRANCIS HOSPITAL OF LYNWOOD, A CORPORATION 36