Physicians and Surgeons Community Hospital

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Physicians and Surgeons Community Hospital and Service Employees International Union, Local 579, AFL-CIO. Case I -CA-12100 August 18, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND WALTHER On February 16, 1977, Administrative Law Judge James L. Rose 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 and has decided to affirm the rulings, findings, and conclusions 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, Physicians and Surgeons Community Hospital, Atlanta, Georgia, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. DECISION STATEMENT OF THE CASE JAMES L. ROSE, Administrative Law Judge: This matter was heard at Atlanta, Georgia, on December 14, 1976, upon the General Counsel's complaint which alleges, in substance, that on or about July 2, 1976, the Respondent withdrew recognition of Service Employees International Union, Local 579, AFL-CIO (herein the Union), as the exclusive representative of employees in an appropriate unit and continues to refuse to bargain with the Union in violation of Section 8(a)(5) of the National Labor Relations Act, 29 U.S.C. § 151, et seq. The Respondent admits that it has declined to bargain with the Union but alleges that the reason it does not is because the Union does not represent a majority of employees in an appropriate bargaining unit. Upon the record as a whole, including my observation of the witnesses, briefs, and arguments of counsel, I hereby make the following: 231 NLRB No. 78 FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Physicians and Surgeons Community Hospital is the successor to Bolton Road Hospital, Inc., and since December 8, 1975, has been a Georgia corporation with its office and place of business located in Atlanta, Georgia, engaged in the business of operating a general medical hospital. In the course and conduct of its business, Physicians and Surgeons Hospital, along with its predecessor, annually does a gross volume of business in excess of $50,000, and purchases and receives goods valued in excess of $10,000 directly from suppliers outside the State of Georgia. The Respondent admits, and I find, that it is a successor in interest to Bolton Road Hospital, Inc., and is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 1. THE LABOR ORGANIZATION INVOLVED The Respondent admits, and I find, that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Factual Background In the summer of 1974, the Union commenced an organizational campaign among certain of the hospital's employees. There were 54 authorization cards obtained and on August 13, 1974, Val Cox, Sr., an International representative of the Union, wrote the Bolton Road Hospital administrator advising that a majority of employ- ees in an appropriate bargaining unit had selected the Union and requesting recognition. On August 14, Cox filed a representation petition for a unit described as "All licensed practical nurses, nurses aid, orderlies, housekeeping, dietary, maintenance employees, ward clerks and medical clericals. Excluded: Supervisors, professionals, office clerical and guards as defined in the Act." In connection with the demand for recognition and the processing of the representation petition, the Respondent submitted a list of employees which contained 87 names in the following classifications: dietary department, house- keeping department, nursing services (including nurses aides, licensed practical nurses, orderlies, and ward clerks) and maintenance department. The Union had authoriza- tion cards from 49 of the 87 employees listed by the Respondent. After some preliminary discussions on September 6, 1974, the Respondent's then attorney, Robert Wilkins, advised Cox that the Respondent would recognize the Union based on a check of the authorization cards. Thereafter, the Respondent and the Union began bargaining. There were three sessions wherein Wilkins was the principal spokesman for the hospital: October 30, 1974, and January 10 and 30, 1975. The Respondent then changed attorneys and there were further negotiation sessions on July 8 and 23, September 9 and 22, October 8, 512 PHYSICIANS AND SURGEONS COMMUNITY HOSPITAL and November 6, 1975. During bargaining, substantially all of the noneconomic issues were agreed to. There have been no bargaining sessions since November 6, 1975. A meeting was set for December 4, however, this meeting was canceled because the Bolton Road Hospital had gone into receivership. Counsel wrote the Union canceling the meeting until the situation concerning the hospital manage- ment "stablizes." Apparently a bargaining session was scheduled for December 17 but canceled because there was a picket line at the hospital. In any event, there was no further contact between the Respondent and the Union until approximate- ly May 14, 1976, when Paul Masson, a business agent with the Union and its principal negotiator, contacted a representative of the hospital concerning resumption of negotiations. Negotiations did not resume as a result of this or two subsequent calls from Masson and he therefore filed a charge alleging a violation of Section 8(a)(5). Thereafter, the Respondent, through its attorney, advised the Union that it was withdrawing recognition on grounds that it doubted that the Union represented a majority of employ- ees in an appropriate unit. B. Contentions of the Party The General Counsel amended the complaint at the hearing to state: All licensed practical nurse employees, all nurse's aides, all orderlies, all maintenance department employees, all housekeeping department employees, all ward clerks and all dietary department employees employed by Bolton Road Hospital, Inc., at its Bolton Road Hospital, excluding all professional employees, guards, and supervisors as defined in the Act constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. The General Counsel further contends that the Union did in fact represent a majority of employees in the unit described when it was recognized by the Respondent's predecessor on or about September 6, 1974, and that the Union continues to represent a majority of those employ- ees. The Respondent contends that the appropriate unit includes all nursing employees, maintenance, dietary and housekeeping employees but excluding LPNs along with supervisors, professionals, and guards. The Respondent further contends that, regardless of which unit is found appropriate, at no time did the Union represent a majority of employees; and in any event, even if the Union did represent a majority of employees in an appropriate unit in 1974, subsequent events, specifically including the high turnover of employees and the fact that there was no bargaining after December 1975, caused the Respondent to have a good-faith doubt that the Union continues to represent a majority. C. Analysis and Concluding Findings I. The appropriate unit The unit petitioned for, recognized by the Respondent's predecessor and agreed to by the parties, though not in decisional language, is a basic hospital service and maintenance unit. Such a unit is appropriate. The Baptist Memorial Hospital, 225 NLRB 1165 (1976). Whether the classifications the parties agreed to include (specifically for instance the LPNs) would have been included had the issue been raised in a representation case proceeding need not be determined here. No evidence was presented which would necessarily require the exclusion of any of the classifica- tions the parties agreed constituted the basic unit. From the record, it appears that in 1974 the parties agreed that the LPNs were not professional employees and should be included in the unit along with nurses aides and orderlies. It also appears that the parties agreed that nursing department technicians (EKG, OR, C.S.S., and cardiovascular) should be excluded. At least these techni- cians were not included on the list of employees submitted by the Respondent to the Board and to the Union in 1974. On the record before me, I conclude that the unit petitioned for and agreed to by the parties is appropriate and that a bargaining order can be entered requiring recognition of the Union as the exclusive representative of the employees in that unit. There is nothing in the record before me to require different inclusions and exclusions from those agreed to by the parties. I therefore find and conclude that an appropriate unit for purposes of collective bargaining within the meaning of Section 9(b) of the Act is: All regular full-time and part-time service and maintenance employees including licensed practical nurses, nurses aii department employees, housekeeping department em- ployees, ani maintenance department employees but excluding all professional employees, guards and supervisors as defined in the Act. 2. The initial recognition The Respondent offered in evidence a list of all employees as of August 13, 1974, prepared by its assistant administrator for purpose of the hearing. This list denomi- nates one employee, Melvinye Tanks, to be an OR technician where the list submitted by the Respondent in 1974 has Tanks as a nurses aide. In addition the list includes approximately 12 employees who were not on the list submitted by the Respondent in 1974 and excludes I that was on the 1974 list. Thus, there is a net of 12 additional employees making a total to be 99 in the unit found appropriate. The Union had authorization cards from 46 of these employees. The Respondent contends that based upon this list of employees, regardless of the composition of the unit, the Union did not in fact represent a majority at any time. The Respondent cannot defend its refusal to bargain upon the claim that it initially recognized a union which did not have majority status, where the recognition 513 DECISIONS OF NATIONAL LABOR RELATIONS BOARD occurred more than 6 months prior to the refusal to bargain. North Bros. Fora Inc., 220 NLRB 1021 (1975). The Respondent is thus barred from asserting that the Union did not represent a majority of employees in 1974. Beyond that, I believe that the Union did in fact represent a majority of employees. While the list prepared by the Respondent for purposes of the hearing appears to be authentic, I nevertheless conclude that as against the list prepared by the adminis- trator of the hospital in 1974 the 1974 list should be given more weight. It is more reasonable to believe that the list prepared in August 1974 would actually reflect the classification placement of the Respondent's employees than a list compiled from raw payroll data more than 2 years later. Accordingly, I conclude that the number of employees in the classifications found to compose the appropriate unit as of August 13 and September 6, 1974, was 87. I further conclude that in fact the Union had authorization cards from 49 of those employees-a clear majority. 3. Withdrawal of recognition Where, as here, an employer recognizes a union as the majority representative of its employees in an appropriate unit it is required to bargain with that union. The employer may not withdraw recognition unless it can demonstrate that the union no longer represents a majority of the employees in the appropriate unit, or that it has a good- faith doubt based upon objective considerations that the union continues to represent a majority of the employees. Arkay Packaging Corporation, 227 NLRB 397 (1976). In either case, the Respondent has the burden of proof. Thus, the Board has held that absent unusual circumstanc- es there is an unrebuttable presumption of continuing majority status of a certified union, and this applies to one voluntarily recognized, for I year after the date of certification. Celanese Corporation of America, 95 NLRB 664 (1951). Thereafter, the presumption continues but it is rebuttable by affirmative evidence that the union no longer represents a majority or that there are objective considera- tions and reasonable grounds for believing such to be the case. The Respondent has not proven that when recognition was withdrawn on July 2, 1976, the Union did not in fact represent a majority of employees in the unit found appropriate. The only evidence that the Union did not represent a majority is the fact of employee turnover. The Union did not have authorization cards from a majority of the employees who were in fact employed on June 30, 1976. However, a longstanding Board rule is that "new employees will be presumed to support a union in the same ratio of those whom they have replaced." Laystrom Manufacturing Co., 151 NLRB 1482, 1484 (1965). In short, mere evidence of turnover is not enough to sustain the Respondent's burden of demonstrating that the Union did not continue to represent a majority of employees in the appropriate unit. Nor on the record before me can I conclude that the Respondent had any reasonable basis for concluding that the Union did not continue to represent the majority of employees. The objective considerations claimed by the Respondent in support of its withdrawal of recognition are: There were no employees at the negotiation sessions, no employees as shop stewards, no union official ever came to the hospital except to bargain; no employee paid union dues; no employee ever applied for membership; there were gaps in bargaining; one employee, a technician not in the bargain- ing unit, expressed dissatisfaction with the Union to a supervisor; and there was a high turnover of employees. None of these rise to the level of objective considerations permitting withdrawal of recognition. As indicated, the Board does not consider a large turnover of employees in and of itself be sufficient grounds for withdrawing recognition. Laystrom Mfg. Co., supra. The fact that there were gaps in bargaining was a result of the Respondent's predecessor going out of business and the Respondent's takeover. Certainly this does not evidence a lack of interest in continuing to represent the hospital's employees by the Union. Having employees at negotiation sessions, selecting shop stewards, or union officials visiting the hospital would not seem to be either required or particularly reasonable until such time as a contract was executed. The same would apply to payment for union dues or formal application of union membership. Upon the record as a whole, I conclude that as of September 6, 1974, when the Respondent recognized the Union it in fact represented a majority of employees in the unit found appropriate; that the Union has continued to represent the majority of the employees in that unit to July 2, 1976, when Respondent withdrew recognition. I therefore conclude that, by withdrawing recognition of the Union and refusing to bargain with it, the Respondent engaged in an unfair labor practice in violation of Section 8(aX5) of the Act and that an appropriate bargaining order should be issued. CONCLUSIONS OF LAW 1. Physicians and Surgeons Community Hospital is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Service Employees International Union, Local 579, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. Since August 13, 1974, the Union has been and continues to be the majority representative of employees in the following unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act: All regular full-time and part-time service and maintenance employees including licensed practical nurses, nurses aides, orderlies, ward clerks, dietary employees, housekeeping department employees, and maintenance department employees but excluding all professional employees, guards and supervisors as defined in the Act. 4. By refusing since on or about July 2, 1976, to recognize and bargain with the Union as a majority representative of the employees in the unit described above, the Respondent has engaged in an unfair labor 514 PHYSICIANS AND SURGEONS COMMUNITY HOSPITAL practice within the meaning of Section 8(aX5) and (1) of the Act. 5. The unfair labor practice committed by the Respon- dent is an unfair labor practice affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in an unfair labor practice within the meaning of Section 8(aX5) and (1) of the Act, I will recommend that the Respondent be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the above findings of fact, conclusions of law, the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER t The Respondent, Physicians and Surgeons Community Hospital, Atlanta, Georgia, its officers, agents, successors, and assigns, shall: i. Cease and desist from: (a) Refusing to recognize and bargain with Service Employees International Union, Local 579, AFL-CIO, in the following unit found appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All regular full-time and part-time service and maintenance employees including licensed practical nurses, nurses aides, orderlies, ward clerks, dietary employees, housekeeping department employees, and maintenance department employees but excluding all professional employees, guards and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action: (a) Upon request, recognize and bargain with Service Employees International Union, Local 579, AFL-CIO, in the unit of: All regular full-time and part-time service and maintenance employees including licensed practical nurses, nurses aides, orderlies, ward clerks, dietary employees, housekeeping department employees, and maintenance department employees but excluding all professional employees, guards and supervisors as defined in the Act. (b) Post at its Atlanta, Georgia, facility copies of the attached notice marked "Appendix." 2 Copies of said notice, on forms provided by the Regional Director for Region 10, after being duly signed by its authorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including 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 10, in writing, within 20 days from the date of this Order, what steps it has taken to comply herewith. I 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. 2 In the event that the Board's 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 After a hearing in which all parties were given the opportunity to participate and present their positions, it has been found by the National Labor Relations Board that we have committed certain unfair labor practices. We have been ordered to cease and desist therefrom, to post this notice, and to comply with the terms of it. WE WILL NOT refuse to recognize and bargain in good faith with Service Employees International Union, Local 579, AFL-CIO, as the exclusive represen- tative of our employees in the following bargaining unit: All regular full-time and part-time service and maintenance employees including licensed practi- cal nurses, nurses aides, orderlies, ward clerks, dietary employees, housekeeping department employees, and maintenance department employ- ees but excluding all professional employees, guards and supervisors as defined in the Act. 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 recognize and upon request bargain in good faith with the Union as the exclusive bargaining representative of our employees in said unit. PHYSICIANS AND SURGEONS COMMUNITY HOSPITAL 515