Bay Medical Center, Inc .

BAY MEDICAL CENTER, INC Bay Medical Center, Inc. and Local No. 486, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America , Ind. Case 7-CA-12523 May 24, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS Upon a charge filed on November 21, 1975, by Local No. 486, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, Ind., herein called the Union, and duly served on Bay Medical Center, Inc., herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 7, issued a complaint and notice of hearing on December 9, 1975, 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 no- tice 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 September 18, 1975, following a Board election in Cases 7-RC- 12687, 7-RC-12734, and 7-RC-12740, the Union was duly certified as the exclusive collective-bargain- ing representative of Respondent's employees in the unit found appropriate;' and that, commencing on or about November 17, 1975, and at all times thereafter, Respondent has refused, and continues to date to re- fuse, 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 22, 1975, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On January 9, 1976, counsel for the General Coun- sel filed directly with the Board a Motion for Sum- mary Judgment. Subsequently, on January 23, 1976, the Board issued an order transferring the proceed- ing to the Board and a Notice To Show Cause why i Official notice is taken of the record in the representation proceeding, Cases 7-RC-12687, 7-RC-12734, and 7-RC-12740, 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 69 the General Counsel's Motion for Summary Judg- ment should not be granted. On January 23, 1976, Respondent filed a response to the General Counsel's Motion for Summary Judgment although no response to the Notice To Show Cause was re- ceived. 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: Ruling on the Motion for Summary Judgment In its answer to the complaint and response to the Motion for Summary Judgment Respondent in sub- stance attacks the validity of the certification based on its contentions (1) that the technical employee unit found appropriate by the Board is inappropriate because it is contrary to Board policy and the con- gressional mandate against proliferation of units in the health care industry, and (2) that the unit descrip- tion is ambiguous and unworkable. Respondent seeks to submit evidence on its contentions either in a hearing or by brief and oral argument to the Board and in the alternative seeks summary judgment in its favor. In his Motion for Summary Judgment the General Counsel contends that Respondent seeks to relitigate the issue of unit appropriateness de- termined in the underlying representation proceeding and that no relitigation of representation case issues may be had. We agree. Review of the record, including that in the repre- sentation proceeding, Cases 7-RC-12687, 7-RC- 12734, and 7-RC-12740, establishes that after a hearing on unit questions the Regional Director transferred the proceedings to the Board. In its brief to the Board the Union contended, inter alia,, that either separate units of technical employees at each of Respondent's two facilities or alternatively a single unit of all technicals at both facilities would be ap- propriate. On the other hand, Respondent argued in its brief, inter alia, that the technical units sought were inappropriate because they constituted artificial groupings which would severely fragmentize Re- spondent's employees, but that an overall unit was appropriate. After review of the record, including briefs filed by all the parties,' the Board issued its Decision, Order, and Direction of Election I on June 2 Briefs were also filed by the three intervenors (I) Local 79, Hospital Employees' Division, Service Employees International Union, AFL-CIO, herein called Local 79, (2) Local 688, Catering Industry Hospital Workers and Bartenders Union, AFL-CIO, and (3) the Michigan Licensed Practical Nurses Association 3 218 NLRB 620 (1975) 224 NLRB No. 14 70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 18, 1975, in which it found, inter aha, that a single unit of all technical employees at both facilities oper- ated by Respondent was appropriate, including cer- tain categories of employees whom the Respondent would have excluded 4 The election was held on July 18, 1975 Challenges were determinative of the elec- tion results Objections concerning the waiver of ini- tiation fees by the Union were filed by Respondent The Regional Director ordered a hearing on election objections and challenged ballots At the hearing the parties stipulated that all challenges be sustained ex- cept six challenged ballots which were not sufficient to affect the outcome of the election 5 On August 27, 1975, the Hearing Officer issued his Report and Rec- ommendations on Objections to Election and Chal- lenged Ballots in which he recommended that the ob- jections be overruled and that the appropriate certification be issued by the Regional Director since the six sustained challenged ballots were not determi- native Respondent filed exceptions to the Hearing Officer's Report limited in substance to its conten- tion that the certification should not issue and the petitions should be dismissed because the technical unit was inappropriate On September 18, 1975, the Regional Director issued his Supplemental Decision, Revised Tally of Ballots, and Certification of Repre- sentative, overruling the objections, denying the mo- tion to dismiss the petitions because the unit issues were not relitigable, and certifying the Union since the six unsustained challenged ballots were not deter- minative On September 29, 1975, Respondent filed a request for review reiterating its unit contentions By telegram of November 11, 1975, the Board denied review on the ground that the request raised no sub- stantial issues warranting review 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) is not entitled to reliti- gate issues 6 which were or could have been litigated in a prior representation proceeding 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 4 On July 14, 1975, Intervenor Local 79 filed a motion for clarification of decision contending that the Board's unit description was vague and not definable as to which employees were to be considered `technical On July 16, 1975, the Board by telegram denied the motion on the grounds that issues raised therein could best be resolved through the challenge procedure 5 Local 79, which had also filed objections withdrew them at the hearing 6 See Pittsburgh Plate Glass Co v NL RB 313 U S 146, 162 (1941) Rules and Regulations of the Board , Secs 102 67(f) and 102 69(c) 7 Respondent requests reconsideration of the Board decision in the under lying representation case citing American Hospital Management Corp d/b/a/ Mad River Community Hospital, 220 NLRB 350 (1975) and St 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 In this proceeding, Respondent contends that it is entitled to present evidence either at a hearing or by brief and oral argument before the Board on the is- sues raised by it We note that Respondent had a hearing in the prior representation case and submit- ted a brief to the Board on the unit issues it seeks to raise in this proceeding and that it had stipulated to the resolution of all determinative challenges We therefore find its contention to be without merit as evidentiary hearings are not required in unfair labor practice cases and summary judgment against a re- spondent is appropriate where, as here , there are no properly litigable issues of fact to be resolved I Ac- cordingly we shall grant the General Counsel's Motion for Summary Judgment and deny the Respondent's Motion for Summary Judgment On the basis of the entire record, the Board makes the following FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT Respondent is, and has been at all times material herein, a nonprofit Michigan corporation with its principal office and place of business at 1908 Colum- bus Avenue, Bay City, Michigan, where it is engaged in the operation of nonprofit hospitals providing health care services at its Mercy and General Divi- sions, the facilities involved in this proceeding Dur- ing the 12-month period ending November 30, 1975, a representative period, Respondent, in the course and conduct of its business operations, received gross revenues in excess of $500,000 for its hospital serv- ices and purchased supplies valued in excess of $50,000 of which supplies valued in excess of $4,500 were obtained directly from suppliers located outside the State of Michigan We find, on the basis of the foregoing, that Re- Elizabeth s Hospital of Boston, 220 NLRB 325 (1975), as recent Board hospital technical unit cases which support denial of the General Counsel s Motion for Summary Judgment We do not agree These cases support the appropriateness of technical units in the health care industry and the Board in its unit determination considered the Respondents circumstances and those of the health care industry Further, with regard to the Respondent's contention concerning the unit description, these cases are consistent with the unit composition determinations made by the Board in the underlying representation proceedings herein In this connection see In 4, supra We therefore deny Respondent s requests for reconsideration and for the oppor tunny to fully brief the issues raised by those cases 8 The Woods Schools, 222 NLRB 1124 (1976) Locust Industries, Inc 221 NLRB 604 (1975) BAY MEDICAL CENTER, INC 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 No 486, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind, 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 technical employees employed by Respon- dent at its Mercy and General Divisions, Bay City, Michigan, but excluding all other employ- ees, guards, and supervisors as defined in the Act 2 The certification On July 18, 1975, 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 7, 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 September 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 September 25, 1975, and at all times thereafter, the Union has requested the Respondent to bargain collectively with it as the ex- clusive collective-bargaining representative of all the employees in the above-described unit Commencing on or about November 17, 1975, and continuing at all times thereafter to date, the Respondent has re- fused, and continues to refuse, to recognize and bar- gain with the Union as the exclusive representative for collective bargaining of all employees in said unit 71 Accordingly, we find that the Respondent has, since November 17, 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 (I) 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 I Bay Medical Center, Inc, is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 Local No 486, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind , is a labor organization within the meaning of Section 2(5) of the Act 72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3 All technical employees employed by Respon- dent at its Mercy and General Divisions, Bay City, Michigan, but excluding all other employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9(b) of the Act 4 Since September 18, 1975, the above-named la- bor 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 17, 1975, and at all tunes thereafter, to bargain collectively with the above-named labor organization as the ex- clusive bargaining representative of all the employees of Respondent in the appropriate unit, Respondent has engaged in and is engaging in unfair labor prac- tices 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- mg 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, Bay Medical Center, Inc, Bay City, Michigan, its offi- cers, 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 con- ditions of employment with Local No 486, Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Ind, as the exclusive bargaining representative of its employees in the following appropriate unit All technical employees employed by Respon- dent at its Mercy and General Divisions, Bay City, Michigan, but excluding all other employ- ees, 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 its Mercy and General Divisions, Bay City, Michigan, copies of the attached notice marked "Appendix " 9 Copies of said notice, on forms pro- vided by the Regional Director for Region 7, 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 7, 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 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 Local No 486, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, Ind , 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 employment, and, if an understanding is BAY MEDICAL CENTER, INC 73 reached, embody such understanding in a signed City, Michigan, but excluding all other em- agreement The bargaining unit is ployees, guards, and supervisors as defined in All technical employees employed by Respon - the Act dent at its Mercy and General Divisions, Bay BAY MEDICAL CENTER, INC