The Long Island College Hospital

THE LONG ISLAND COLLEGE HOSPITAL 83 The Long Island College Hospital and Local 144, Hotel, Hospital Nursing Home and Allied Services Union, Service Employees International Union, AFL-CIO. Case 29-CA-4562 February 9, 1977 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On June 4, 1976, Administrative Law Judge Mi- chael O. Miller issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. 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. The Board has considered the record and the attached Decision in light of the exceptions and brief i and has decided to affirm the rulings, findings, and conclusions 2 of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, The Long Island College Hospital, New York, New York, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. complaint issued by the Regional Director for Region 29 of the National Labor Relations Board on December 31, 1975. The complaint alleged that the Long Island College Hospital, herein Respondent, has refused to meet or bargain with the Union in violation of Section 8(a)(5) and (1) of the National Labor Relations Act, herein the Act. Respondent timely filed an answer to the complaint, admitting certain facts, denying the commission of the alleged unfair labor practices and setting forth its affirma- tive defenses. Briefs have been filed by General Counsel, Respondent, and the Union. Based upon the entire record in this case,' including the briefs and oral arguments of counsel and my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT 1. RESPONDENT'S BUSINESS Respondent, a New York corporation, is engaged in the operation of a not-for-profit hospital, providing hospital, health care, and related services in New York, New York. The complaint alleged and Respondent admitted that during the past year, a representative period, Respondent derived in excess of $250,000 in gross revenues from its operations and purchased and caused to be transported to its New York location goods and materials valued in excess of $50,000, in interstate commerce, directly from States of the United States other than the State of New York. The complaint alleged, Respondent admitted, and I find that Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE UNION'S LABOR ORGANIZATION STATUS The complaint alleged, Respondent admitted, and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. 1 Respondent's request for oral argument is hereby denied, inasmuch as the record, the exceptions, and the brief adequately present the issues and the positions of the parties. 2 With all due respect for the views expressed by the Court of Appeals for the Third Circuit in its opinion in Memorial Hospital of Roxborough v. N.L.R.B, 545 F.2d 351 ( 1976), we respectfully adhere to the Board majority's opinion in that case , reported at 220 NLRB 402 (1975), until such time as the Supreme Court shall have passed on the matter DECISION STATEMENT OF THE CASE MICHAEL O. MILLER , Administrative Law Judge: A hearing in this matter was held before me in Brooklyn, New York, on March 9 and 10, 1976, based upon a charge filed by Local 144, Hotel, Hospital Nursing Home and Allied Services Union, Service Employees International Union, AFL-CIO, herein the Union, on September 8, 1975, and a 1 Respondent's unopposed motion to correct the transcript is granted. 2 The facts as set forth in this chronology are not in dispute .They are based upon admissions, stipulations, and reported administrative agency and court decisions of which I have taken judicial notice, pursuant to the requests of the parties 3 The election upon which the certification was based had been conduct- ed on July 22, 1964, upon an SLRB direction of election which had issued 228 NLRB No. 13 III. THE UNFAIR LABOR PRACTICES A. The Issues and Chronology of Events 2 The principal issue herein is the effect to be given to a certification of representative issued by the New York State Labor Relations Board, herein the SLRB. That certification issued in 1964, but because of protracted litigation, resulted in little collective bargaining and did not bring to fruition a contractuahzed collective-bargaining relationship . Respon- dent's affirmative defenses questioned the effect on the continuance of the bargaining obligation of changes in Respondent's location, operations, and unit composition. On December 28, 1964, the SLRB certified the Union as the exclusive collective-bargaining representative of Re- spondent's employees in the following unit: 3 July 6, 1964 (27 NYSLRB 405). The ballot afforded the employees in this unit the following choices for self-determination: separate unit status, representation by the Union in such a separate unit , or, if no separate unit was selected, representation by the Union in an overall service employee unit. The employees chose union representation in the separate unit In a unit of approximately 55 employees, 44 employees cast valid ballots The Union (Continued) 84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All full-time and regular part-time employees in the maintenance of plant and engineering department, excluding chief engineers, assistant chief engineers, clerk and maintenance supervisor, [and all supervisors as defined in Section 2(11) of the Act.] Respondent refused to bargain with the Union, contending, inter alia, that the unit was inappropriate. At this point, as it was subsequently determined, the Union chose an inappropriate avenue of review. It invoked section 716 of the State Labor Relations Act, which provided for mediation, fact fording, and binding arbitra- tion of "disputes" between nonprofitmaking hospitals and unions. The State Industrial Commissioner appointed a fact- finding commission and, when that commission 's recom- mendations were rejected by Respondent, sent the contro- versy to arbitration before the New York State Board of Mediation. Respondent sought to enjoin both the fact finding and the arbitration. On November 7, 1968, the New York Court of Appeals, in Long Island College Hospital v. Catherwood, 23 N.Y.2d 20, 294 N.Y.S.2d 697, 69 LRRM 2605 (1968) (hereinafter referred to as College Hospital I) upheld Respondent's contention that resort to section 716 was inappropriate, concluding the "disputes" as defined in that section did not include representation issues . The Union, it found, should have followed "the traditional procedure by filing an unfair labor practice charge under Section 704(6) [State Labor Relations Act] against the hospital for its refusal to bargain collectively with the representatives of the employees-a procedure which . . . would have enabled the hospital judicially to challenge the fording of an unfair labor practice as well as the Labor Board's certification of the union as exclusive representative for maintenance employ- ees." The Union's appeal from this decision was dismissed. Ottley et at v. Long Island College Hospital, 394 U.S. 716 (1969). Respondent, on May 13, 1969, moved before the SLRB to vacate the certification as stale and unenforceable due to the passage of time and changes in the composition of the unit. The SLRB denied the motion. In accord with the decision of the New York Court of Appeals, the Union, on May 7, 1969, filed its unfair labor practice charge against Respondent , alleging a refusal to bargain under the State Labor Relations Act, section 704(6). A complaint issued. As subsequently and succinctly related by the New York Court of Appeals (Long Island College Hospital v. N. Y. Labor Board 32 N.Y.2d 314, 345 N.Y.S.2d 449, 85 LRRM 2580, 2581 (1973), hereinafter referred to as College Hospital II): At the SLRB hearings which followed, the hospital not only attacked the board's original certification order of 1964, determining that the skilled maintenance workers constituted an appropriate bargaining unit , but inter- posed new matters concerning, among other things, alleged improprieties in the conduct of the election. After thorough consideration of these issues , the board adhered to its earlier decision and entered an order, dated June 30, 1971, which directed the hospital to cease and desist from refusing to bargain with Local 144 and extended its certification for one year from the date of its order or from the completion of any judicial review of that order.4 On Respondent's appeal of the SLRB's order, the Appellate Division of the New York Supreme Court (39 A.D.2d 913, 80 LRRM 3375) while upholding the SLRB's unit determi- nation and its use of a self-determination election proce- dure, annulled the board's order and directed a new election upon certain of the hospital's objections to the conduct of the election. The court of appeals in College Hospital II, supra, reversed, finding: The Appellate Division was eminently correct insofar as it affirmed the board's determination that the hospital's skilled maintenance employees constituted an appropri- ate bargaining unit... . Accordingly, the board's practice, resulting in the establishment of a separate bargaining unit of skilled maintenance employees, seems eminently proper and, certainly, may not be stamped as either arbitrary or capricious. Nor, in our view is there any valid basis for the hospital's attack on the conduct to the election. . . . [85 LRRM 2581, 2582.] The SLRB bargaining order was reinstated and enforced. Respondent's petition for a writ of certiorari was denied by the United States Supreme Court on March 4, 1974 (415 U.S. 957). Respondent thereupon entered into negotiations with the Union, nearly a decade after the certification first issued. It continued to maintain its position at these negotiations that the unit was inappropriate. Negotiations continued until mid-August 1975, at which time Respondent refused to bargain further, contending again that the unit was inap- propriate. During the period of bargaining, on August 25, 1974, the hospital amendments to the National Labor Relations Act became effective (Public Law 93-360). B. Analysis and Conclusions The Board has long held that it "will recognize the results of an election conducted by a responsible state agency, and therefore extend comity to a certification issued pursuant to such an election, where the state agency's election proce- dures conform to due process requirements and effectuate the policies of the Act." Memorial Hospital of Roxborough, 220 NLRB 402 (1975); Screen Print Corporation, 151 NLRB 1266 (1965); The West Indian Co., Ltd, 129 NLRB 1203 (1961); Bluefield Produce & Provision Company, 117 NLRB 1660 (1957). Respondent asserts that the instant case does not call for the extension of comity because: the New York statute is at odds with this Act; the unit found appropriate by the SLRB is inimical to the provisions of the Act in light of the legislative history of the recent hospital amendments; received a majonty-24. The employees in the larger service unit, voting on Trial Examiner. It had also moved to reopen the heanng and for reconsider- the same day, rejected representation. ation of that latter motion upon its denial. 4 Respondent had excepted to the earlier adverse findings of the SLRB THE LONG ISLAND COLLEGE HOSPITAL and because of the lapse of time and concomitant changes in the unit since that certification.5 1. Statutory comparison Respondent contended that the law applied by the SLRB in making its 1964 unit finding was so different from the Act that the application of comity was unwarranted. It cited, as the material variance, only the following portion of section 705(2) of the state act: [T ]hat in any case where the majority of employees of a particular craft, or in the case of a non-profitmaking hospital or residential care center where the majority of employees of a particular profession or craft, shall so decide the board shall designate such profession or craft as a unit appropriate for the purpose of collective bargaining .6 It is clear from a reading of the SLRB decision, order and direction of election (The Long Island College Hospital, 27 NYSLRB 405) that the SLRB did not rely upon (and indeed was able to avoid application of) the aforequoted proviso in directing the election herein. Rather, the SLRB weighed the various factors traditionally considered by it (and by the NLRB) in reaching unit determinations, including homogeneity, earnings, interchange, and history of collective bargaining, against itspolicy of avoiding "over- compartmentalization of hospitals into numerous small bargaining units" and found the factors to be evenly balanced. It thereupon, in a manner comparable to the NLRB in The Globe Machine and Stamping Co., 3 NLRB 294, 299-300 (1937), determined to allow the balance to be tipped by the desires of the employees involved. Evinrude Motors Division of Outboard Marine and Manu- facturing Company, 66 NLRB 1142 (1946), and Wilson-Hurd Manufacturing Company, Inc., 68 NLRB 853 (1946), relied upon by Respondent (even assuming they represent the Board's present policy in regard to comity) are inapposite. In those cases the key factor was the state agency's lack of discretion in regard to the conduct of a separate craft election. In the instant case, the SLRB's direction of a self- determination election in the maintenance and engineering department was entirely an exercise of its reasoned discre- tion. That discretion was exercised only after general and specific hearings were held by the SLRB on the unit question. See College Hospital II, supra, 85 LRRM at 2582. Additionally, in both Evinrude and Wilson-Hurd the state agency had directed craft elections after petitions for same 5 No contention was made and, in view of the repeated resort to the courts at all levels, the many hearings, and the detailed decisions issued herein, no contention could validly have been made that Respondent was not accorded due process. 6 The portion quoted by Respondent is the proviso to the following statutory provision: [70512. The board shall decide in each case whether, in order to insure employees the full benefit of their right to self-organization, to collective bargaining and otherwise to effectuate the policies of this article, the unit appropriate for the purposes of collective bargaining shall be the employer unit, multiple employer unit, craft unit, plant unit, or any other unit; provided however ... . 7 Sec. 9(bx 1) and (2) of the National Labor Relations Act reads: [Sec. 9](b) The Board shall decide in each case whether, in order to assure to employees the fullest freedom in exercising the rights 85 had been dismissed by National Labor Relations Board Regional Directors, at times when the NLRB had jurisdic- tion, and in the face of existing and viable collective- bargaining relationships on broader bases. Similarly inapposite are those cases relied upon by Respondent (Malcolm X Center for Mental Health, Inc., 222 NLRB 944 (1976); Mental Health Center of Boulder County, Inc., 222 NLRB 901 (1976); and St. Luke's Hospital Center, 221 NLRB 1314 (1976)), wherein the Board refused to give comity to state agency unit determinations which, on their face, were at variance with express statutory provisions, i.e., they included professional and nonprofessional employees in a single unit without the self-determination election required to be accorded professionals under Section 9(b)(1) of the Act. No such violation of express statutory mandate is involved herein. Finally, I would note in this regard that section 705(2) of the New York statute is essentially identical to Section 9(b) of the Federal Act and the provisos to both provisions express similar concerns.7 Both seek to protect professional employees and skilled craft employees from undesired inclusion in units comprised of persons of different inter- ests, training, education, and skills. I therefore conclude that such differences as may exist between the National Labor Relations Act and the New York State Labor Relations Act do not render comity unwarranted. The statutes generally and as applied by the SLRB in this case are not inimical. 2. Unit proliferation It is true, as contended by Respondent, that the legisla- tive history of the hospital amendments admonishes the Board to avoid undue proliferation of bargaining units in the health care industry.8 Respondent contends that the maintenance-engineering department unit found appropri- ate herein constitutes such an undue proliferation. How- ever, as the Board stated in the recent case of Jewish Hospital of Cincinnati, 223 NLRB 614 (1976): Congress left the matter of the determination of appropriate units to the Board, and the desire for nonproliferation does not, in our judgment, necessarily preclude our granting maintenance units in the health care area. Congress was aware that the Board has sometimes found that a separate maintenance unit is appropriate if the maintenance employees possess a community of interest sufficiently separate and distinct from the broader community of interest which they share with other employees to warrant their inclusion in guaranteed by this Act, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof: Provide4 That the Board shall not (1) decide that any unit is appropriate for such purposes if such unit includes both professional employees and employees who are not professional employees unless a majority of such professional employees vote for inclusion in such unit ; or (2) decide that any craft unit is inappropriate for such purposes on the ground that a different unit has been established by a prior Board determination, unless a majority of the employees in the proposed craft unit votes against separate representa- tion.... S. Rept. 93-766, 93d Cong., 2d sess. 5 (1974); see also H. Rept. 93-1051, 93d Cong., 2d sess. 7 (1974); Mercy Hospitals of Sacramento, 217 NLRB 765 (1975). 86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a separate unit. Yet, it did nothing to preclude our granting such units. Congress in fact rejected Senator Taft's suggestion that maintenance employees should always be combined with service employees into a single unit. [Footnotes omitted.] It is thus clear that the fact that a unit of the maintenance and engineering department is involved herein does not, of itself, warrant a rejection of the principle of comity. Indeed, it was just such a unit, maintenance department or maintenance-plant operations, involving employees fulfill- ing the same work responsibilities as those herein, which was involved in Memorial Hospital of Roxborough, supra. The Board therein extended comity entirely upon the Pennsylvania Labor Relations Board's determination of all election issues, without further discussion of either unit appropriateness or unit proliferation. Moreover, as noted supra the SLRB soon adopted a policy, similar to that expressed in the legislative history to the recent amendments, "against over-compartmentaliza- tion of hospitals into numerous small bargaining units" (Matter of Wyckoff Heights Hospital, 27 NYSLRB 75, 82- 83), and specifically applied that policy to the direction of election in the instant case. Long Island College Hospital, 27 NYSLRB 405, 411 . As the New York Court of Appeals pointed out: Without merit is the hospital's argument that the unit selected may improperly fragment the hospital into numerous small units. . . . Actually, the board's prac- tice in allowing skilled maintenance employees in hospitals to form a separate bargaining unit if they wish to do so, far from constituting over-compartmentaliza- tion, has avoided more serious fragmentation into numerous smaller units since , under the mandatory craft unit provision of subdivision 2 of section 705, each skilled craft, such as plumbers , painters and carpenters, could have demanded and could have been included in a separate unit. [College Hospital, II, supra, 85 LRRM at 2582.] 3. The lapse of time The Board, in Memorial Hospital of Roxborough, supra, reiterated its well-settled rule "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(aX5) of the Act is not entitled to relitigate issues which were or could have been litigated in a prior representation proceeding." Respondent does not appear to rely upon any contention of newly discovered or previously unavailable evidence. It does, however, contend that the Union's responsibility for the lapse of time between the certification and the commencement of bargaining was a special circumstance which warranted relitigation and reconsideration of the unit determination. As previously noted, the Union initially chose an inappropriate avenue to challenge Respondent's refusal to bargain. The delay occasioned by its choice, from certification in December 1964 until the initial court of appeals decision in November 1968, caused that court to place responsibility for the delay B Respondent emphasized Judge Fuld's assessment of blame upon the Union, in College Hospital I, in both oral argument and brief herein. It failed, upon the Union. However, the court also noted in a footnote to that comment that delay occurs whenever parties resort to the courts for the final adjudication of their disputes. College Hospital I, supra, 69 LRRM at 2609, fn. 5 (1968). Moreover, the same court, by the samejudge, Chief Judge Fuld, in reaching its second decision in this matter, upholding Respondent's obligation to bargain, added: It is only necessary to add that there is no basis whatever for criticism of the union for its asserted delay in failing to file an unfair labor practice complaint.... As our court unequivocally stated in the Roosevelt Hospital case. . . . "Delays occasioned by the union's exercise of what it reasonably believed to be its right under the statute [to invoke the mediation, fact-finding and compulsory arbitration proceedings of section 716 ] did not call for a redetermination of its status as a representative any more than would delays resulting from the slowness of administrative action or from the employer's pursuit of his judicial remedies in seeking court review of the board's certification." [College Hospital II, supra, 85 LRRM at 2585.]9 To Chief Judge Fuld's observations I would add only that the delay did not cease when the union chose the legally correct procedure. More time has passed since the Union filed its unfair labor practice charge than was spent prior thereto in pursuing what it then deemed to be an appropri- ate means for resolving the issues and bringing Respondent to the bargaining table. The contention that the mere passage of time is a sufficient special circumstance to warrant relitigation is similarly without merit. To entertain such a defense would produce the anomalous result of permitting a Respondent to benefit from a lapse of time resulting from litigation for which it was responsible by virtue of its unlawful refusal to bargain. Holly Farms Poultry Industries, Inc., 189 NLRB 663 (1971). See also Spitzer Akron, Inc., 195 NLRB 114 (1972), and the dissenting opinion by Members Fanning and Jenkins in George Braun Packing Co., 210 NLRB 1028, 1029 (1974). Respondent also contended that "the SLRB's certifica- tion expired on March 4, 1975-one year after the Supreme Court denied the Hospital's request to review the New York Court of Appeals' bargaining order (415 U.S. 957)-so that there is nothing to give comity to ." In so arguing, Respon- dent has misconceived the nature of a certification of representative. Certification is not a license which , upon the mere passage of time, expires as if it were a license to operate a motor vehicle. Rather, certification is a key which opens a collective-bargaining relationship. That relation- ship remains viable until some material circumstance arises to place the continued existence of that relationship in question. The passage of time, alone, is, as noted, not such a material circumstance. See, for example, Ray Brooks v. N.L.R.B, 348 U.S. 96, 98 (1954); King Radio Corporation, 208 NLRB 578 (1974), enfd.510 F.2d 1154 (C.A. 10, 1975); Laystrom Manufacturing Co., 151 NLRB 1482, 1483 (1965). however, to make any references to the referred-to footnote or to Judge Fuld's subsequent decision, reassessing that responsibility. THE LONG ISLAND COLLEGE HOSPITAL 87 4. Changes in unit composition Respondent has contended that change in the unit composition is a special circumstance which warrants a redetermination of the unit question. It appears that the employee complement of the maintenance and engineering department has grown from approximately 55 in 1964 to 69 in 1976. Approximately 8 of the original 55 remain employees within this department. Others have assumed supervisory responsibilities in the department or left. While Respondent has not asserted, in haec verba, that this turnover has given rise to a reasonable basis for doubting the Union's majority, its assertions are equivalent to such an argument and the principles applicable to a doubt of majority based on turnover are applicable herein. In Laystrom Manufacturing Co., 151 NLRB 1482, 1484 (1965), it was stated: Employee turnover standing alone does not provide a reasonable basis for believing that the Union had lost its majority since the prior election. The Board has long held that new employees will be presumed to support a union in the same ratio as those whom they have replaced. See also, Washington Manor Nursing Center (South), 211 NLRB 315 (1974), and Washington Manor Nursing Center (North), 211 NLRB 324 (1974). Both cases were enforced at N.L.R.B. v. Washington Manor, Inc., 519 F.2d 750(C.A.6, 1975). Moreover, after the certification year, a union enjoys a rebuttable presumption of majority. No evidence, beyond turnover, has been offered to rebut that presumption here. N.L.R.B. v. Washington Manor, Inc., supra. Thus, to the extent that Respondent's argument implies a doubt of the Union's majority status, it is without merit. 5. Changes in operations Respondent has contended that changes in its operations warrant a redetermination of unit appropriateness. The record reveals that over the course of years, Respondent has built or acquired new buildings, terminated operations of some buildings, and moved operations from older to newer buildings. All of the buildings remain in the same geographical area. Some equipment has been modernized and some more sophisticated technology added. As part of a departmental "reorganization" around 1969 (prior to enforcement of the SLRB's order to bargain), specific job titles for many of the maintenance and engineering depart- ment employees were eliminated. The work, responsibili- ties, and contact with employees of other departments, of the maintenance-engineering employees remained un- changed, however, and a number of the employees have continued to this day to perform such specialized and skilled functions as plumber, electrician, and refrigeration mechanic. At the same time, new supervisory positions within the department were created, assigning responsibili- ty for particular maintenance tasks to lower level supervi- sors. These supervisors continue to report to a director of engineering who has overall supervision and responsibility for the maintenance and engineering department. Such changes do not materially affect the community of interest of the maintenance and engineering department employees. See The Rittling Corporation, 203 NLRB 355 (1973). 6. Conclusion As neither the lapse of time nor the aforementioned changes present special circumstances sufficient to warrant relitigation of the unit issues as determined by the SLRB, and as neither the New York statute nor the SLRB decision and direction of election provide a basis for the denial of comity, it is appropriate, under established Board prece- dent, that comity be given to the SLRB determination. Accordingly, I find that the employees in Respondent's maintenance of plant and engineering department consti- tute a unit appropriate for the purpose of collective bargaining. I conclude that by breaking off negotiations with the Union in mid-August 1975, because it believed that unit to be inappropriate for collective-bargaining purposes, Respondent has failed and refused to bargain in good faith with the Union in violation of Section 8(a)(5) of the Act. CONCLUSIONS OF LAW 1. The Long Island College Hospital is an employer within the meaning of Section 2(6) and (7) of the Act. 2. Local 144, Hotel, Hospital Nursing Home and Allied Services Union, Service Employees International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time employees in the maintenance of plant and engineering department, exclud- ing chief engineers, assistant chief engineers, clerk and maintenance supervisor, and all supervisors as defined in Section 2(11) of the Act, constitute a unit appropriate for the purposes of collective-bargaining within the meaning of Section 9(b) of the Act. 4. Since December 28, 1964, the above-named labor organization has been and is now the certified and exclusive representative of all employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about August 14, 1975, and at all times thereafter, to bargain collectively with the above- named labor organization as the exclusive 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 meaning of Section 8(a)(l) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, it will be recommended that it be 88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ordered to cease and desist therefrom and to take affirma- tive action to effectuate the policies of the Act. As Respondent's violations go to the very heart of the Act, the recommended Order shall require Respondent to cease and desist from in any other manner infringing upon the rights guaranteed to its employees by Section 7 of the Act. N.LR.B. v. Entwistle Mfg. Co., 120 F.2d 532,536 (C.A. 4, 1941). Upon the basis of the foregoing findings of fact, conclu- sions of law, and the entire record in this proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER'° Respondent, The Long Island College Hospital, New York, New York, 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 conditions of employment with Local 144, Hotel, Hospital Nursing Home and Allied Services Union, Service Employees International Union, AFL-CIO, as the exclusive bargain- ing representative of its employees in the following appro- priate unit: All full-time and regular part-time employees in the maintenance of plant and engineering department, excluding chief engineers, assistant chief engineers, clerk and maintenance supervisor, and all supervisors as defined in Section 2(11) of the Act. (b) In any other 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 will effectuate the policies of the Act: (a) Upon request, bargain with the above-named labor organization as the exclusive representative of all employ- ees in the aforesaid appropriate unit 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. (b) Post at The Long Island College Hospital copies of the attached notice marked "Appendix ." 11 Copies of said notice, on forms provided by the Regional Director for Region 29, 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 thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable 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 29, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 10 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec . 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 11 In the event the Board's Order is enforced by a Judgment of the 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 concern- ing rates of pay, wages, hours, and other terms and conditions of employment with Local 144, Hotel, Hospital Nursing Home and Allied Services Union, Service Employees International Union, AFL-CIO, as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT in any other 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 representative 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 understand- ing is reached, embody such understanding in a signed agreement. The bargaining unit is: All full-time and regular part-time employees in the maintenance of plant and engineering depart- ment, excluding chief engineers, assistant chief engineers, clerk and maintenance supervisor, and all supervisors as defined in Section 2(l1) of the Act. THE LONG ISLAND COLLEGE HOSPITAL