Nebraska Methodist Hospital

NEBRASKA METHODIST HOSPITAL I Nebraska Methodist Hospital and Local 38, Interna- tional Union of Operating Engineers, AFL-CIO. Case 17-CA-6698 January 8, 1976 DECISION AND ORDER By CHAIRMAN MURPHY AND MEMBERS FANNING, JENKINS, AND PENELLO Upon a charge filed on August 4, 1975, as amend- ed on August 12, 1975, by Local 38, International Union of Operating Engineers, AFL-CIO, herein called the Union, and duly served on Nebraska Methodist Hospital, herein called the Respondent, the Acting General Counsel, herein General Counsel, of the National Labor Relations Board, by the Act- ing Regional Director for Region 17, issued a com- plaint on August 19, 1975, against Respondent, alleg- ing that Respondent had engaged in and was engaging in unfair labor practices affecting com- merce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Rela- tions Act, as amended. Copies of the charge, com- plaint, and notice of hearing before an Administra- tive 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 June 18, 1975, fol- lowing a Board election in Case 17-RC-7624, 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 July 31, 1975, and at all times there- after, 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 August 25, 1975, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On September 8, 1975, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment, and Respondent, thereafter, filed its opposition in part to General Counsel's mo- tion to transfer proceeding to Board and for summa- 1 Official notice is taken of the record in the representation proceeding, Case 17-RC-7624, as the term "record" is defined in Sees. 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 NLRA ry judgment. Subsequently, on September 18, 1975, the Board issued an order transferring the proceed- ing to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judg- ment should not be -granted. Respondent thereafter filed a response to Notice To Show Cause. Upon the entire record in this proceeding,2 the Board makes the following: Ruling on the Motion for Summary Judgment In its answer to the complaint, its opposition to the General Counsel's motion, and its response to the Notice To Show Cause, Respondent basically attacks the appropriateness of the hospital maintenance unit in which the Union has been certified as the exclu- sive bargaining representative. Respondent argues that its answer creates litigable factual issues as to unit warranting a hearing. In addition, Respondent maintains that recent and pending Board cases deal- ing with the appropriateness of hospital maintenance units support denial of the General Counsel's mo- tion, and that special circumstances warrant recon- sideration of the Board's decision in the underlying representation case. Review of the record herein, including the record in Case 17-RC-7624, reveals that, on November 7, 1974, pursuant to a Stipulation for Certification Upon Consent Election, an election was held in the stipulated appropriate maintenance unit resulting in a vote of 13 to 12 in favor of the Union with no ballots challenged. Respondent filed timely objec- tions to the election with the Regional Director and, thereafter, filed a motion to set aside the stipulation and a request for a hearing on the appropriateness of the maintenance unit. Respondent argued that the appropriateness of the stipulated unit was called into question by a subsequent decision of the Regional Director finding inappropriate a hospital mainte- nance unit, a decision allegedly inconsistent with the Acting Regional Director's approval of the unit stip- ulation herein. On December 18, 1974, the Regional Director is- sued his Report on Objections and Recommenda- tions and recommendations as to Respondent's mo- tion and request, in which he recommended that Respondent's objections be overruled in their entire- ty, and that the motion to set aside the stipulation and the request for a hearing be denied,' and that the 2 The Respondent's request for oral argument is denied as the General Counsel's motion and the Respondent's opposition thereto and its response to the Notice To Show Cause adequately present the positions of the parties 3 With respect to Respondent's motion to set aside the stipulation, the Regional Director noted the established policy in favor of stipulations so long as the agreement is approved by the Regional Director and does not violate any express statutory provisions or established Board policies, and Continued 222 NLRB No. 1 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union be certified. Respondent filed timely excep- tions to the Regional Director's recommendations and requested review of the refusal to set aside the stipulation and the election and to grant a hearing. On June 18, 1974, the full Board issued a Decision and Certification of Representative (218 NLRB No. 99), in which it adopted the Regional Director's rec- ommendations,4 and certified the Union as the exclu- sive bargaining representative of employees in the unit stipulated to be appropriate. It thus appears that, except for the contentions with respect to the impact of recent and pending Board hospital maintenance unit cases and alleged special circumstances, Respondent is merely at- tempting to relitigate issues which were raised and determined adversely to it in the underlying repre- sentation case. It is settled that in the absence of newly discovered or previously unavailable evidence 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.5 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 7 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 .8 We shall, accordingly, grant the 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 Respondent is a corporation engaged in the opera- tion of a not-for-profit hospital at Omaha, Nebraska. In the course and conduct of its business operations at the hospital, Respondent annually purchases goods and services valued in excess of $50,000 direct- ly from sources located outside the State of Nebras- ka. In the operation of the hospital, Respondent's annual gross income from services performed equals or exceeds $500,000. 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. he concluded that approval of the instant stipulation could not be "said to be casual, arbitrary, improper, an abuse of discretion, contrary to estab- hshed precedent, mindless of legislative intent or statutorily repugnant" 4 With respect to the denial of Respondent's motion to set aside the stipu- lation, the full Board concluded that the motion, filed subsequent to ap- proval of the stipulation and subsequent to the holding of the election, was untimely and, therefore, adopted the Regional Director's recommendation that the motion be denied 5See Pittsburgh Plate Glass Co v NLRB , 313 U.S. 146, 162 ( 1941); Rules and Regulations of the Board, Sees 102 67(f) and 102 69(c) 6 Respondent directs our attention to Memorial Hospital of Roxborough, 220 NLRB No 73 (1975), and to Riverside Methodist Hospital, 9-RC-10731, et al, in which oral argument has been held , as recent and pending Board hospital maintenance unit cases which support denial of the General Counsel's summary judgment motion While these cases generally involve the appropriateness of maintenance units in the health care industry, they in no way support denial of the General Counsel 's motion where, as here, the issue regarding approval of the maintenance unit stipulation was raised and determined by the Board in the underlying representation case In view of our disposition herein, Respondent 's request to fully brief the hospital mamtenance unit issues raised in Riverside Methodist Hospital, 9-RC-10731, et aL, is denied. 7 As special circumstances warranting reconsideration , Respondent cites the unique nature of the hospital industry and the Board's alleged failure to articulate the rationale for its representation case decision which affirmed the Regional Director's denial of Respondent's motion to set aside the stipu- lation We find the contention as to the unique nature of the hospital indus- try to be without ment, especially in view of the fact that Respondent, in its motion to set aside the stipulation and in its request for review of the Re- gional Director's denial thereof, has cited the newness of Board jurisdiction over the industry and this factor was necessarily considered by both the Board and the Regional Director in the underlying representation case. Similarly, we find without meet the alleged failure of the Board to articulate its rationale for affirming the Regional Director's denial of Respondent's motion to set aside the stipulation In its Decision and Certification of Representative, the Board clearly articulated its determination that H. THE LABOR ORGANIZATION INVOLVED Local 38, 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 purposes within the meaning of Section 9(b) of the Act: All engineers and maintenance employees em- ployed by Nebraska Methodist Hospital at its facilities located in Omaha, Nebraska, but ex- Respondent's motion was untimely B In its answer to the complaint, Respondent also submits that it is with- out knowledge as to the Union's status as a labor organization, which, under Sec 102.20 of the Board's Rules and Regulations, operates as a denial. This issue was specifically determined by the Board in the representation case, and may not be relitigated herein. Cherokee Nitrogen Company, 200 NLRB 630 (1972) NEBRASKA METHODIST HOSPITAL 3 cluding guards and supervisors within the mean- ing of the Act, and all other employees. 2. The certification On November 7, 1974, 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 17, 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 June 18, 1975, 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 July 24, 1975, 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 July 31, 1975, 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 collec- tive bargaining of all employees in said unit. Accordingly, we find that the Respondent has, since July 31, 1975, 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 1. Nebraska Methodist Hospital is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 38, International Union of Operating En- gineers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act: 3. All engineers and maintenance employees em- ployed by Nebraska Methodist Hospital at its facili- ties located in Omaha, Nebraska, but excluding guards and supervisors within the meaning of 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 June 18, 1975, the above-named labor or- ganization has been and now is the certified and ex- clusive 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 July 31, 1975, 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- 4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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, Nebraska Methodist Hospital, Omaha, Nebraska, 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 Local 38, International Union of Operating Engineers, AFL-CIO, as the ex- clusive bargaining representative of its employees in the following appropriate unit: All engineers and maintenance employees em- ployed by Nebraska Methodist Hospital at its facilities located in Omaha, Nebraska, but ex- cluding guards and supervisors within the mean- ing of 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 at 8303 Dodge Street, Oma- ha, Nebraska, copies of the attached notice marked "Appendix." 9 Copies of said notice, on forms pro- vided by the Regional Director for Region 17, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon re- ceipt thereof, and be maintained by it for 60 consecu- tive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, de- faced, or covered by any other material. (c) Notify the Regional Director for Region 17, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 9In 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 Oider 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 Local 38, International Union of Operating Engineers, AFL-CIO, 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 engineers and maintenance employees em- ployed by Nebraska Methodist Hospital at its facilities located in Omaha, Nebraska, but ex- cluding guards and supervisors within the meaning of the Act, and all other employees. NEBRASKA METHODIST HOSPITAL