Mercy Hospitals of Sacramento, Inc.

MERCY HOSPITALS OF SACRAMENTO 419 Mercy Hospitals of Sacramento, Inc and Hospital and Institutional Workers, Local 250, Service Em- ployees International Union, AFL-CIO Case 20- June 7, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND PENELLO Upon a charge filed on November 19, 1975, by Hospital and Institutional Workers, Local 250, Ser- vice Employees International Union, AFL-CIO, herein called the Union, and duly served on Mercy Hospitals of Sacramento, Inc, herein called the Re- spondent, the General Counsel of the National La- bor Relations Board, by the Regional Director for Region 20, issued a complaint on December 10, 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 notice of hearing be- fore 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 August 19, 1975, following a Board election in Cases 20-RC- 12299, 12300, 12301, and 12302, the Union and Sta- tionary Engineers, Local 39, International Union of Operating Engineers, AFL-CIO, herein called Local 39, as Joint Petitioner (herein referred to collectively as Joint Petitioner), was duly certified as the exclu- sive collective-bargaining representative of Re- spondent's employees in the unit found appropri- ate, ` and that, commencing on or about November 14, 1975, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Joint Petitioner as the exclusive bargaining representative, although the Joint Peti- tioner has requested and is requesting it to do so On December 16, 1975, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint On February 11, 1976, counsel for the General 'Official notice is taken of the record in the representation proceeding, Case 20-RC-12299, et at, 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 Counsel filed directly with the Board a Motion for Summary Judgment Subsequently, on February 26, 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 there- after filed a response to Notice To Show Cause enti- tled "Opposition to Motion for Summary Judg- ment " On March 5, 1976, the Union as Charging Party and Local 39, as the other ,Jointly certified col- lective-bargaining representative, filed a joinder in motion for summary judgment 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 Notice To Show Cause, the Respondent admits all the operative factual allegations of the complaint but denies the conclusionary averments on the basis of the alleged inappropriateness of the unit found ap- propriate in the underlying representation proceed- ing and in its objections to the election and the Board's resolution thereof On the other hand, the General Counsel contends that the Respondent has raised no issues of law or fact requiring a hearing We agree with the General Counsel Review of the entire record herein, including that in Cases 20-RC-12299, 12300, 12301, and 12302, dis- closes that a hearing on the representation petitions filed was held, in which Local 39 and two other asso- ciations participated as intervenors 2 Thereafter, the Regional Director, on December 10, 1975, issued a Decision and Direction of Elections in which he found appropriate, inter alga, a bargaining unit of all service and maintenance employees and a unit of all office clerical employees, the composition of which the parties stipulated All parties, except the Respon- dent, filed with the Board requests for review con- tending, inter alia, that the unit issues raised substan- tial questions for law and policy and that there were compelling reasons for the establishment of Board rules and policies in this area The Respondent filed a brief in opposition Because of the important issues raised by this and a number of other cases in the health care industry, the Board, on January 29, 1976, held oral argument and received briefs amici curiae on the general question of the composition of appro- 2 California Association of Medical Technology , Engineers, and Scientists of California MEBA, AFL-CIO, and California Nurses Association 224 NLRB No 58 420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD priate bargaining units in the health care industry On February 5, 1975, the Board granted the request for review and stayed the elections pending review After considering the entire record, including the oral arguments and amici briefs, in these cases, the Board, on May 5, 1975, with Member Fanning con- curring, and former Member Kennedy dissenting, in part, issued its Decision on Review and Direction of Elections (217 NLRB 765 (1975) ), herein called De- cision on Review, in which, inter alra, it found appro- priate a unit of all service and maintenance employ- ees and, over the opposition of the Respondent, granted the request of the Union and Local 39 to be on the ballot as a point petitioner in that unit elec- tion, further, it agreed with the Regional Director's determination as to the appropriateness of the office clerical unit, but disagreed with his findings as to the composition of that unit because it decided that in the health care field as in the industrial sphere, it would continue to recognize the distinction between business office clerical employees and other types of clerical employees Accordingly and consistent with the congressional direction against the proliferation of bargaining units in the health care industry, it found appropriate a unit of all business office clerical employees excluding the other types of clerical em- ployees, herein called hospital clericals, who because their interests were more closely related to the func- tions served by the employees in the service and maintenance unit, were included in that unit sought by the Union and Local 39 as Joint Petitioner In the June 14, 1975, election in the service and maintenance unit found appropriate by the Board,' the Union and Local 39 as Joint Petitioner won The Respondent filed timely objections to the election al- leging, in substance, that (1) the Board failed to fol- low its own rules in granting the request of the Union gaining representative of the employees in the service and maintenance unit found appropriate by the Board Thereafter, the Respondent filed a timely re- quest for review in which it reiterated its objections and sought to have the election set aside On October 23, 1975, the Board denied the request as raising no substantial issues warranting review In its response to the Notice To Show Cause, the Respondent also contends the Board violated due process and its own rules by failing to honor the sti- pulated unit approved by the Regional Director and by excluding the hospital clericals from the stipulated clerical unit and including them in the service and maintenance unit without the Respondent being af- forded the opportunity to present evidence and liti- gate the unit placement of the clerical employees The Respondent also argues that the Board's subse- quent decision in Otis Hospital Inc, 219 NLRB 164 (1975), in which the Board decided to apply its gener- al stipulation policy to the health care industry, sup- ports its position as to the stipulated clerical unit First, we note that the Respondent could have raised and litigated these issues in the underlying rep- resentation case but failed to do so until after the instant unfair labor practice proceeding was institut- ed Further, as set forth in footnote 26 of the Deci- sion on Review in the underlying representation case, the Board stated that "no party could at that time, with any degree of certainty, know what unit or units in this newly covered industry would be found ap- propriate" and that the "unit determinations [of the Regional Director] were tentative " It was for this basic reason that the Board had requested oral argu- ment in a series of landmark health care cases, in order to enable the parties, including amicus curiae, to assist it in making initial unit determinations par- ticularly for hospitals in the newly covered industry and Local 39 to appear on the ballot as Joint Peti- . Thus, at the oral argument, the Union counsel, ad- tioner, (2) the Union distributed election propaganda -^ verting to the general distinction between plant and which suggested Board support for the Union and which misrepresented facts concerning (a) layoff and subcontracting, (b) wage rates under the Union's contract with another hospital, and (c) the Respondent's role during the malpractice crisis in the hospital industry which resulted in strikes, layoffs, and shortened workweeks After investigation, the Acting Regional Director, on August 19, 1975, issued a Supplemental Decision and Certification of Repre- sentative in which she overruled the Respondent's objections in their entirety and certified the Union and Local 39, Joint Petitioner, as the exclusive bar- 3 Elections in the registered nurse and business office clerical units found appropriate by the Board were not held because the Regional Director had approved the Union's request to withdraw its petitions in Cases 20-RC- 12300 and 20-RC-12302 clerical employees arising from a difference in com- munity of interest, suggested that the health care in- dustry be treated the same as the other industries, while the Respondent counsel pointed out that the clerical unit stipulated by Respondent with the Union "evolves solely from the unique facts which are in existence at the Mercy Hospitals " and does not have "persuasive weight on the clerical is- sues which are present before the Board in other cases " In these circumstances, further litigation of the particular facts in Mercy Hospitals would not have been of any great significance to the Board in establishing appropriate clerical units for hospitals in the newly covered health care industry Further, as we noted in the subsequent Otis decision where it was determined for the first time to give effect to unit MERCY HOSPITALS OF SACRAMENTO composition stipulations in the health care industry, the cases, in which oral argument was held, "left open the question of the effectiveness of stipulations designating units not in conformity with the determi- nations made in contested cases " Therefore, giving the governing weight normally afforded to stipulations in other industries was not warranted with respect to the clerical unit stipulated in the underlying representation case Accordingly, we find that the Respondent's reliance upon the sub- sequent Otis decision to be not only inapposite but also without merit Further, upon the records and oral arguments in the above cases, and consistent with the congressional intent, the Board decided, in the health care field as in the industrial sphere, to continue to recognize the distinction between busi- ness office clerical employees and other types of cler- ical employees and, following this determination, ex- cluded from the business office clerical unit found appropriate herein all other clerical employees who were then included in the service and maintenance unit sought by the Union and Local 39 as Joint Peti- tioner 4 It thus appears that except for the Otis stipulation argument, which we have found to be inapposite and without merit, the additional contentions raised by the Respondent are without merit and are matters which could have been raised and litigated in the underlying representation case 5 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 which were or could have been litigated in a prior representation proceeding 6 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- In so concluding, the Board specifically overruled the decision in Na tional Medical Hospitals, Inc, of San Diego, d/b/a Chico Community Memo nal Hospital 215 NLRB 821 (1974), to the extent it was inconsistent with the decision herein In that case, the appropriate unit consisted of all clerical employees Further, with respect to subsequent Case 20-RC-13017 where the Union and Respondent stipulated to a unit of hospital clerical and business office clerical employees in the Mercy Hospitals, the Regional Director on October 15, 1975, found that the stipulated all-clerical unit was barred by the Decision on Review herein The Respondent filed a timely request for review raising essentially the same arguments that had been raised herein and in effect requesting reconsideration of the Decision on Review herein On November 15, 1975, the Board rejected these arguments in denying the revest for review See 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) 421 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 We shall, accordingly, grant the 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 a California corporation with its principal office and place of business in Sacramento, California, from which it operates three acute care and one geriatric care nonprofit hospital facilities During the past year it received gross revenues in excess of $500,000 and purchased goods and supplies valued in excess of $10,000 from California suppliers who, in turn, purchased said goods and supplies from sources located outside the State of California 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 ORGANIZATIONS INVOLVED Hospital and Institutional Workers, Local 250, Service Employees International Union, AFL-CIO, and Local 39 are labor organizations 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 full-time and regular part-time service and maintenance employees, including licensed vo- cational nurses, graduate vocational nurses, nurse assistants, ward clerks, surgical techini- cans, ACC clerks, x-ray technicians, cardiopul- monary technicians, respiratory therapy techni- cians, EKG technicians , tissue technicians, EEG technicians, pharmacy technicians, pharmacy clerks, computer programmers, printing assis- tants, technicians to receiving clerk, housekeep- 422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing technicians, food service workers, laundry workers, department aides, all employees of the maintenance and engineering department, and all clerical employees other than business office clerical employees, employed at Mercy General Hospital, Mercy Convalescent Hospital, and Mercy Children's Hospital, Sacramento, Cali- fornia, and at Mercy San Juan Hospital, Carmi- chael, California, excluding all other employees, guards, and supervisors as defined in the Act 2 The certification On June 14, 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 20, designated the Joint Petitioner as their representative for the purpose of collective bargaining with the Respondent The Joint Petitioner was certified as the collective-bargaining representa- tive of the employees in said unit on August 19, 1975, and the Joint Petitioner continues to be such exclu- sive 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 28, 1975, and at all times thereafter, the Joint Petitioner has requested the Respondent to bargain collectively with it as the exclusive collective-bargaining representative of all the employees in the above-described unit Com- mencing on or about November 14, 1975, and con- tinuing at all times thereafter to date, the Respon- dent has refused, and continues to refuse, to recognize and bargain with the Joint Petitioner as the exclusive representative for collective bargaining of all employees in said unit Accordingly, we find that the Respondent has, since November 14, 1975, and at all times thereafter, refused to bargain collectively with Joint Petitioner as the exclusive representative of the employees in the appropriate unit, and that, by such refusal, Re- spondent 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, 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 Joint Petitioner as the exclusive representative of all employees in the appropriate 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 Joint Petitioner as the recognized bargaining representative in the ap- propriate 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 US 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 CONCLUSIONS OF LAW 1 Mercy Hospitals of Sacramento, Inc, is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 Hospital and Institutional Workers, Local 250, Service Employees International Union, AFL-CIO, and Local 39 are labor organizations within the meaning of Section 2(5) of the Act 3 All full-time and regular part-time service and maintenance employees, including licensed vocation- al nurses, graduate vocational nurses, nurse assis- tants, ward clerks, surgical technicians, ACC clerks, x-ray technicians, cardiopulmonary technicians, res- piratory therapy technicians, EKG technicians, tis- sue technicians, EEG technicians, pharmacy techni- cians, pharmacy clerks, computer programmers, printing assistants, technicians to receiving clerk, housekeeping technicians, food service workers, laundry workers, department aides, all employees of the maintenance and engineering department, and all clerical employees other than business office clerical employees, employed at Mercy General Hospital, Mercy Convalescent Hospital, and Mercy Children's Hospital, Sacramento, California, and at Mercy San Juan Hospital, Carmichael, California, excluding all MERCY HOSPITALS OF SACRAMENTO 423 other employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the pur- poses of collective bargaining within the meaning of Section 9(b) of the Act 4 Since August 19, 1975, the above-named Joint Petitioner 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 14, 1975, and at all times thereafter, to bargain collectively with the above-named Joint Petitioner as the exclu- sive bargaining representative of all the employees of Respondent in the appropriate unit, Respondent has engaged 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, Mercy Hospitals of Sacramento, Inc, Sacramento, Califor- nia, 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 Hospital and Institution- al Workers, Local 250, Service Employees Interna- tional Union, AFL-CIO, and Local 39, Joint Petitioner, as the exclusive bargaining representative of its employees in the following appropriate unit All full-time and regular part-time service and maintenance employees, including licensed vo- cational nurses, graduate vocational nurses, nurse assistants, ward clerks, surgical techni- cians, ACC clerks, x-ray technicians, cardiopul- monary technicians, respiratory therapy techni- cians, EKG technicians, tissue technicians, EEG technicians, pharmacy technicians, pharmacy clerks, computer programmers, printing assis- tants, technicians to receiving clerk, housekeep- ing technicians, food service workers, laundry workers, department aides, all employees of the maintenance and engineering department, and all clerical employees other than business office clerical employees, employed at Mercy General Hospital, Mercy Convalescent Hospital, and Mercy Children's Hospital, Sacramento, Cali- fornia, and at Mercy San Juan Hospital, Carmi- chael, California, excluding all other employees, 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 Joint Petitioner as the exclusive representative of all employees in the aforesaid appropriate unit with re- spect 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 facilities in Sacramento and Carmi- chael, California, copies of the, attached notice marked "Appendix 117 Copies of said notice, on forms provided by the Regional Director for Region 20, after being duly signed by Respondent's repre- sentative, shall be posted by Respondent immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employ- ees are customarily posted Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other materi- al (c) Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith 7 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 Hos- pital and Institutional Workers, Local 250, Ser- vice Employees International Union, AFL-CIO, 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Local 39, Joint Petitioner, as the exclusive representative of the employees in the bargain- ing 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 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 full-time and regular part-time service and maintenance employees, including licensed vocational nurses, graduate vocational nurses, nurse assistants, ward clerks, surgical techni- cians, ACC clerks, x-ray technicians, cardio- pulmonary technicians, respiratory therapy technicians, EKG technicians, tissue techni- cians, EEG technicians, pharmacy techni- cians, pharmacy clerks, computer program- mers, printing assistants, technicians to receiving clerk, housekeeping technicians, food service workers, laundry workers, de- partment aides, all employees of the mainte- nance and engineering department, and all clerical employees other than business office clerical employees, employed at Mercy Gen- eral Hospital, Mercy Convalescent Hospital, and Mercy Children's Hospital, Sacramento, California, and at Mercy San Juan Hospital, Carmichael, California, excluding all other employees, guards, and supervisors as defined in the Act MERCY HOSPITALS OF SACRAMENTO, INC