Dominguez Valley Hospital

DOMINGUEZ VALLEY HOSPITAL National Medical Hospital of Compton, d/b/a Do- minguez Valley Hospital and Hospital and Service Employees Union, Local 399, Service Employees International Union, AFL-CIO. Case 21-CA-19605 August 7, 1981 DECISION AND ORDER Upon a charge filed on October 2, 1980, by Hos- pital and Service Employees Union, Local 399, Service Employees International Union, AFL- CIO, herein called the Union, and duly served on National Medical Hospital of Compton, d/b/a Do- minguez Valley Hospital, herein called Respond- ent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 21, issued a complaint on November 10, 1980, 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 and the 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 complaint alleges in substance that on August 27, 1980, following a Board election in Cases 21-RC- 15976 and 21-RC-15969, the Union was duly certi- fied as the exclusive collective-bargaining repre- sentative of Respondent's employees in the unit found appropriate;' and that, commencing on or about September 16, 1980, and at all times thereaf- ter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On November 20, 1980, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On February 12, 1981, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on February 17, 1981, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Sum- mary Judgment should not be granted. Upon the entire record in this proceeding, the Board makes the following: ' Official notice is taken of the record in the representation proceeding, Cases 21-RC-15976 and 21-RC-15969, 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 (4th Cir. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26 (5th Cir. 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va 1967): Follerr Corp., 164 NLRB 378 (1967), enfd 397 F.2d 91 (7th Cir. 1968); Sec. 9(d) of the NLRA, as amended. Ruling on the Motion for Summary Judgment In its answer to the complaint and response to the Notice To Show Cause, Respondent admits the jurisdictional allegation of the complaint. It also admits that an election was held in an appropriate unit and that the Union received a majority of the votes cast. Respondent denies, however, that the Union's Certification of Representative is valid based on its objections to the election. In its Motion To Transfer Case to Board and for Summary Judgment, counsel for the General Coun- sel alleges that Respondent seeks to relitigate issues previously considered in the underlying representa- tion cases, and that there are no issues of fact war- ranting a hearing. We agree. Review of the record, including the representa- tion proceeding in Cases 21-RC-15969 and 21- RC-15976, reveals that the Union sought an elec- tion in a unit of all employees of the Employer; ex- cluding professional employees, registered nurses, confidential employees, guards and supervisors as defined in the Act. International Union of Operat- ing Engineers Local 501, AFL-CIO, sought an election in a unit of all engineering and mainte- nance department employees only. Although the Regional Director found that an overall unit of employees, including engineering and maintenance employees constituted an appro- priate unit, he also found that the engineering and maintenance department employees could also con- stitute an appropriate unit. He therefore directed an election in the overall unit sought by the Union (voting group A) and an election in a unit consist- ing only of engineering and maintenance depart- ment employees (voting group B) as sought by Local 501. Local 501 chose not to participate in the election in voting group A. The elections in both units were conducted on August 31, 1979. Neither labor organization received a majority of the votes cast in voting group B. When the ballots of both voting groups were pooled, the tally of those ballots revealed that of the 273 ballots cast, 150 were for the Union, 106 were against, 2 were void, and 17 were challenged. On September 5 and 10, 1979, Local 501 and Re- spondent, respectively, filed objections to conduct affecting the results of the election. On December 31, 1979, the Acting Regional Director issued a Supplemental Decision, Order, and Direction of Second Election, in Case 21-RC-15969 and a Cer- tification of Results of Election in Case 21-RC- 15976. Thereafter, in January 1980, both Respondent and the Union filed requests for review of the Re- 257 NLRB No. 91 643 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gional Director's Decision. On February 8, 1980, the Board granted the Union's request for review but denied Respondent's request for review. On August 27, 1980, the Board issued its Deci- sion on Review and Certification of Representa- tive. 2 In that Decision the Board found that the Union did not engage in any misrepresentation of a material fact which would warrant setting the elec- tion aside. It also found that the inadvertent and minimal deviation of one incorrect announcement made over the Employer's public address system, weighed against the entire case, was an insufficient basis for setting the election aside. Accordingly, the Board overruled Respondent's objections and certified the Union as the exclusive bargaining rep- resentative. In this proceeding, Respondent contends that the Board erred in its Decision on Review and Certifi- cation of Representative and that the Union was improperly certified. The General Counsel con- tends that Respondent is improperly seeking to liti- gate issues that were raised and decided in the rep- resentation case. We agree with the General Coun- sel. It is well settled that in the absence of newly dis- covered or previously unavailable evidence or spe- cial circumstances a respondent in a proceeding al- leging a violation of Section 8(a)(5) is not entitled to relitigate issues which were or could have been litigated in a prior representation proceeding. 3 All issues raised by Respondent in this proceed- ing were or could have been litigated in the prior representation proceeding, and 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 decision made in the representation proceeding. We therefore find that Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. Accordingly, we 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 RESPONDENT Respondent is a Nevada corporation engaged in the business of operating an acute care hospital in Compton, California. During the past 12-month period, Respondent had gross receipts in excess of $250,000 and purchased and received goods valued '251 NLRB 842. :' See Pittsburgh Plate Glass Co. N. L.R.B., 313 U.S. 146, 162 (1941) Rules and Regulations of the Board. Secs. 102.67(f and 102.69(c). in excess of $5,000, which goods originated outside the State of California. We find, on the basis of the foregoing, that Re- spondent is, and has been at all times material herein, 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 jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED Hospital and Service Employees Union, Local 399, Service Employees International Union, AFL- CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of Respondent consti- tute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All employees of the Employer, including all engineering and maintenance department em- ployees, employed at its facility located at 3100 South Susana Road, Compton, California; excluding professional employees, confidential employees, guards and supervisors as defined in the Act. 2. The certification On August 21, 1980, a majority of the employees of Respondent in said unit, in a secret-ballot elec- tion conducted under the supervision of the Re- gional Director for Region 21, designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the collective-bargaining repre- sentative of the employees in said unit on August 27, 1980, and the Union continues to be such exclu- sive representative within the meaning of Section 9(a) of the Act. B. The Request To Bargain and Respondents Refusal Commencing on or about September 3, 1980, and at all times thereafter, the Union has requested Re- spondent to bargain collectively with it as the ex- clusive collective-bargaining representative of all the employees in the above-described unit. Com- mencing on or about September 16, 1980, and con- tinuing at all times thereafter to date, Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive repre- 644 DOMINGUEZ VALLEY HOSPITAL sentative for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since September 16, 1980, and at all times thereafter, re- fused to bargain collectively with the Union as the exclusive representative of the employees in the ap- propriate unit, and that, by such refusal, Respond- ent 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 oper- ations described in section I, above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of com- merce. V. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning 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 appropriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. In order to insure that the employees in the ap- propriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certi- fication as beginning on the date Respondent com- mences to bargain in good faith with the Union 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 (5th Cir. 1964), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. National Medical Hospital of Compton, d/b/a Dominguez Valley Hospital, is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Hospital and Service Employees Union, Local 399, Service Employees International Union, AFL- CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All employees of the Employer, including all engineering and maintenance department employ- ees, employed at its facility located at 3100 South Susana Road, Compton, California; excluding pro- fessional employees, confidential 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 August 27, 1980, the above-named labor 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 September 16, 1980, and at all times thereafter, to bargain collectively with the above-named labor organization as the ex- clusive bargaining representative of all the employ- ees of Respondent in the appropriate unit, Re- spondent 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, Respond- ent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed them in Section 7 of the Act, and thereby has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) 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. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, National Medical Hospital of Compton, d/b/a Do- minguez Valley Hospital, Compton, California, 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 Hospital and Serv- ice Employees Union, Local 399, Service Employ- ees International Union, AFL-CIO, as the exclu- sive bargaining representative of its employees in the following appropriate unit: All employees of the Employer, including all engineering and maintenance department em- ployees, employed at its facility located at 3100 South Susana Road, Compton, California; 645 DECISIONS OF NATIONAL LABOR RELATIONS BOARD excluding professional employees, confidential employees, guards and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise 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 understanding is reached, embody such under- standing in a signed agreement. (b) Post at its place of business in Compton, Cali- fornia, copies of the attached notice marked "Ap- pendix." 4 Copies of said notice, on forms provided by the Regional Director for Region 21, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, in- cluding 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 21, in writing, within 20 days from the date of this Order, what steps have been taken to comply here- with. 4In 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 Pursu- ant 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 Hospital and Service Employees Union, Local 399, Service Employees International Union, AFL-CIO, as the exclusive representa- tive of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees 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 repre- sentative of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours, and other terms and condi- tions of employment and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All employees of the Employer, including all engineering and maintenance department employees, employed at its facility located at 3100 South Susana Road, Compton, Cali- fornia; excluding professional employeees, confidential employees, guards and supervi- sors as defined in the Act. NATIONAL MEDICAL HOSPITAL OF COMPTION, D/B/A DOMINGUEZ VALLEY HOSPITAL 646