Mercy-Memorial Hospital Corp.

MERCY-MEMORIAL HOSPITAL CORP. 51 Mercy-Memorial Hospital Corporation and Local 79, Service Employees International Union, AFL-CIO. Case 7-CA-12474 May 24, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS 1976, 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 failed to file a response to Notice To Show Cause. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. Upon the entire record in this proceeding, the Board makes the following: Upon a charge filed on November 7, 1975, by Lo- cal 79, Service Employees International Union, AFL-CIO, herein called the Union, and duly served on Mercy-Memorial Hospital Corporation, herein called the Respondent, the Acting General Counsel, herein called General Counsel, of the National Labor Relations Board, by the Regional Director for Re- gion 7, issued a complaint on November 21, 1975, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practic- es affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Na- tional 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 com- plaint alleges in substance that on May 28, 1970, fol- lowing an election conducted pursuant to a consent agreement approved by the Michigan Employment Relations Commission, herein called MERC, in MERC Case R70 B-60, MERC issued a certification of representative certifying the Union as the exclu- sive collective-bargaining representative of an appro- priate unit of Respondent's Mercy Hospital employ- ees;' and that, commencing on or about November 3, 1975, 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 December 3, 1975, Respondent filed its answer to the complaint admit- ting in part, and denying in part, the allegations in the complaint. On December 22, 1975, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on January 12, 'Official notice is taken of the record in the representation proceeding, Case 7-RM-1010, 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 NLRA Ruling on the Motion for Summary Judgment 2 In its answer to the complaint, Respondent admits its refusal to bargain, but contends that the Union's certification by the Michigan Employment Relations Commission as exclusive representative for an appro- priate unit of Mercy Hospital employees cannot be given comity by the Board because (1) the 1974 amendments to the Act, extending the Board's juris- diction to include health care institutions, grant to the Board exclusive jurisdiction in the area; (2) the bargaining unit in which the Union is certified does not constitute a full service and maintenance unit and, accordingly, does not conform to Board guide- lines; (3) a merger between Mercy Hospital, the hos- pital involved herein, and Memorial Hospital has rendered inappropriate the single Mercy Hospital unit for which the Union is certified; and (4) Re- spondent had a good-faith doubt as to the Union's continued majority status when it first refused to bar- gain in June 1972. Respondent further contends it has a good-faith doubt as to the Union's current ma- jority status. Review of the record herein, including the record in Case 7-RM-1010, reveals that, pursuant to a con- sent agreement, an election was conducted by MERC on May 20, 1970, which the Union won. In the absence of objections to the election, the Union was certified by MERC on May 28, 1970. Thereafter, collective bargaining between the parties com- menced, but no agreement was reached and, on June 30, 1972, the Respondent announced it would no longer bargain as it did not believe the Union repre- sented a majority of the employees in the previously certified unit. On July 10, 1972, the Union filed a refusal-to-bar- 2 On April 23, 1976, Respondent filed a motion to hold matter in abey- ance, contending that the issues before the Board herein are identical to those which will be litigated at a hearing in consolidated Cases 7-CA- 12174, 7-CA-12015(1), 7-CA-12015(2), and 7-CA-12599, and moving that, in the future, the instant case be consolidated with such cases We note that the consolidated cases allege violations of Sec 8(a)(1), (2), and (3) which are not directly related to the 8(a)(5) violation alleged herein Accordingly, we deny the motion to hold Case 7-CA-12474 in abeyance for future consoli- dation with Cases 7-CA-12174, et al 224 NLRB No. 11 52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gam charge with MERC On May 16, 1973, after considering a MERC administrative law judge's deci- sion recommending dismissal of the charge, MERC found that Respondent's refusal to bargain was an unfair labor practice and ordered Respondent to bar- gain with the Union and take certain other remedial action Respondent appealed MERC's decision to the Michigan Court of Appeals which, on March 15, 1974, issued its decision affirming MERC's unfair la- bor practice determination 3 On June 12, 1974, the Michigan Supreme Court issued an order denying Respondent's application for leave to appeal, and Respondent's motion for reconsideration of that or- der was similarly denied on September 12, 1974 Thereafter on September 27, 1974, after the Au- gust 25, 1974, effective date of the hospital amend- ments, Respondent filed with the Board a representa- tion petition in Case 7-RM-1010 seeking a single unit of all employees at Mercy and Memorial Hospi- tals The Regional Director concluded that no ques- tion concerning representation existed and dismissed the petition Thereafter, Respondent filed a timely request for review of the Regional Director's decision with the Board On December 20, 1974, the Board remanded the case to the Regional Director for a hearing and reinstated the petition for this purpose After a hearing, the case was transferred to the Board for decision Respondent contended that an election should be directed in the requested two-hospital unit because the circumstances of the case compelled the Board to deny comity to the certification of MERC and subsequent decisions of MERC and the Michi- gan courts finding a refusal to bargain In support of its position that comity should be denied, Respon- dent argued that (1) MERC's certification of the Union should not be recognized, as the hospital amendments to the Act give the Board exclusive ju- risdiction over Respondent, (2) Respondent was not under an obligation to bargain with the Union be- cause, at the time of the initial refusal to bargain in June 1972, Respondent had a good-faith doubt as to the Union's continued majority status, and (3) the MERC-certified unit was no longer appropriate be- cause Mercy and Memorial Hospitals had effected a merger which so integrated their operations that only a unit encompassing employees at both locations is appropriate On October 23, 1975, the Board issued its Decision and Order 4 in which it, inter aha, found Respondent's contentions to be without merit, stated that the single Mercy Hospital unit certified was in close conformity with units found appropriate by the Board in similar cases, gave comity to the Michigan 3 Service Employees International Union, Local 79, AFL-CIO v Monroe Mercy Hospital, 52 Mich App 165, 216 NW2d 589 4 221 NLRB 1 (1975) certification and proceedings, and dismissed the peti- tion It thus appears that, except as hereafter discussed, Respondent is attempting to relitigate issues which were previously raised and decided by the Board in Case 7-RM-1010 It is well settled that in the ab- sence 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 proceed- ing s 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 Respondent further justifies its refusal to bargain by contending that, based on criteria currently ex- isting, Respondent has a good-faith doubt as to the Union's continued majority status We find no merit in this contention Respondent has been found guilty of refusal-to-bargain unfair labor practices and has been directed to bargain by MERC and the Michi- gan courts, and we have previously given conclusive effect to those decisions 6 Where, as here, a respon- dent has unlawfully refused to bargain in good faith and has been ordered to do so, such respondent may not contest the union's majority status without first remedying its unfair labor practices by bargaining with the union for a reasonable time I Further, it is established that after the expiration of the certifica- tion year an incumbent bargaining representative en- joys a presumption of continued majority status, and we find that Respondent herein has offered no objec- tive facts whatsoever to rebut that presumption or support its alleged good-faith doubt of the Union's continued majority status Accordingly, we shall grant the Motion for Sum- mary Judgment 8 On the basis of the entire record, the Board makes the following 5 See Pittsburgh Plate Glass Co v NLRB; 313 U S 146, 162 (1941), Rules and Regulations of the Board, Secs 102 67(f) and 102 69(c) 6 221 NLRB 1 (1975) 7 See NLRB v Warren Company Inc 350 U S 107 (1955) S Memorial Hospital of Roxborough, 220 NLRB 402 (1975) Screen Print Corporation, 151 NLRB 1266 (1965) MERCY-MEMORIAL HOSPITAL CORP 53 FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT Respondent is, and has been at all times material herein, engaged in the operation of a health care in- stitution providing general and acute care for the sick and infirm During the year ending December 31, 1974, a representative period, Respondent, in the course and conduct of its business operations, re- ceived gross revenues in excess of $500,000 for its hospital services During the year ending December 31, 1974, a representative period, Respondent, in the course and conduct of its business operations, pur- chased supplies valued in excess of $50,000, of which supplies valued in excess of $5,000 were obtained di- rectly from suppliers located outside the State of Michigan 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 j uris- diction herein II THE LABOR ORGANIZATION INVOLVED Local 79, Service Employees International Union, AFL-CIO, is a labor organization within the mean- ing of Section 2(5) of the Act election conducted pursuant to a consent agreement approved by MERC in MERC Case R70 B-60 in which a majority of the employees in said unit desig- nated the Union as their representative for the pur- pose of collective bargaining with Respondent, the Union was certified as the collective-bargaining rep- resentative of the employees in said unit 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 29, 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 November 3, 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 collective bargaining of all employees in said unit Accordingly, we find that the Respondent has, since November 3, 1975, 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 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 nurses aides, physical therapy aides, cen- tral supply aides, laboratory aides, pharmacy aides, ward clerks, orderlies, dietary employees, housekeeping employees, laundry employees, maintenance employees, and grounds employees at the Respondent's Mercy Hospital in Monroe, Michigan, but excluding registered nurses, LPN's, GPN's, office clerical employees, profes- sional employees, technical employees, supervi- sors, and all other employees 2 The certification On May 28, 1970, subsequent to a secret ballot 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 54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 Mercy-Memorial Hospital Corporation is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 Local 79, Service Employees International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act 3 All nurses aides, physical therapy aides, central supply aides, laboratory aides, pharmacy aides, ward clerks, orderlies, dietary employees, housekeeping employees, laundry employees, maintenance employ- ees, and grounds employees at the Respondent's Mercy Hospital in Monroe, Michigan, but excluding registered nurses, LPN's, GPN's, office clerical em- ployees, professional employees, technical employ- ees, supervisors, and all other employees, constitute a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9(b) of the Act 4 Since May 28, 1970, 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 November 3, 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- 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, Mer- cy-Memorial Hospital Corporation, Monroe, Michi- gan, 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 79, Service Em- ployees International Union, AFL-CIO, as the ex- clusive bargaining representative of its employees in the following appropriate unit All nurses aides, physical therapy aides, cen- tral supply aides, laboratory aides, pharmacy aides, ward clerks, orderlies, dietary employees, housekeeping employees, laundry employees, maintenance employees, and grounds employees at the Respondent's Mercy Hospital in Monroe, Michigan, but excluding registered nurses, LPN's, GPN's, office clerical employees, profes- sional employees, technical employees, supervi- sors, 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 Mercy Hospital, Monroe, Michigan, copies of the attached notice marked "Appendix " 9 Copies of said notice, on forms provided by the Re- gional Director for Region 7, 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 Rea- 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 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 MERCY-MEMORIAL HOSPITAL CORP 55 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 7, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith 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 79, Service Employees International Union, 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 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 agreement The bargaining unit is All nurses aides, physical therapy aides, central supply aides, laboratory aides, phar- macy aides, ward clerks, orderlies, dietary em- ployees, housekeeping employees, laundry employees, maintenance employees, and grounds employees at the Respondent's Mer- cy Hospital in Monroe, Michigan, but exclud- ing registered nurses, LPN's, GPN's, office clerical employees, professional employees, technical employees, supervisors, and all other employees MERCY-MEMORIAL HOSPITAL CORPORATION