Doctors' Hospital of Montclair

DOCTO()RS' HOSPITAL OF MO()NTCL AIR Doctors' Hospital of Montclair and Retail Clerks Union Local 1428, chartered by the United Food and Commercial Workers International Union, AFL-CIO, CLC. Case 31 -CA- 11510 March 12, 1982 DECISION AND ORDER BY MF.MBERS FANNING, J.INKINS, AND ZIMNMERMAN Upon a charge filed on September 14, 1981, by Retail Clerks Union Local 1428, chartered by the United Food and Commercial Workers Internation- al Union, AFL-CIO, CLC, herein called the Union, and duly served Doctors' Hospital of Mont- clair, herein called Respondent, the General Coun- sel of the National Labor Relations Board, by the Regional Director for Region 31, issued a com- plaint on October 30, 1981, against Respondent, al- leging that Respondent had engaged in and was en- gaging 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 Rela- tions Act, as amended. Copies of the charge, com- plaint, and notice of hearing before an administra- tive 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 May 7, 1981, following a Board election in Case 31-RC-4837, the Union was duly certified as the exclusive col- lective-bargaining representative of Respondent's employees in the unit found appropriate;' and that, commencing on or about August 25, 1981, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining repre- sentative, although the Union has requested and is requesting it to do so. On November 3, 1981, Re- spondent filed its answer to the complaint admit- ting in part, and denying in part, the allegations in the complaint. On November 23, 1981, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on November 27, 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. Respondent I Official notice is taken of the record in the representation proceeding. Case 31-RC-4837. 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 LT' Electrosystems, Inc. 166 NL.RI 938 (1967), enfd 388 F 2d h83 (4th Cir 1968); Golden ,4ge Beverage Co., 167 NLRB 151 (19067), enfd 415 F.2d 26 (5th Cir 1969) Intertfype (Co Penilo, 269 FSupp 573 (D.C Va 1967); Folltrr Corp.. 164 NL.RB 378 1967), enfd 3147 F 2d 91 (71h Cir. 1968); Sec 9(dl of the NLiRA. as amended 260 NLRB No. 114 thereafter filed a response to the Notice To Show Cause. 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 response to the Notice To Show Cause, as in its answer to the complaint, Respondent con- tends that it is not obligated to bargain with the Union because the certification issued to the Union in Case 31-RC-4837 is invalid by reason that the Board erred in its determination that an appropriate unit for bargaining is the unit set forth in the Acting Regional Director's Decision and Direction of Election. Respondent further contends that the Board erred in overruling its objections to the elec- tion. The General Counsel submits that Respondent's contentions should be discounted as attempts to re- litigate issues which were or could have been dis- posed of by the Board in the prior representation proceeding. We agree. A review of the entire record, including that in Case 31-RC-4837, reveals that pursuant to a peti- tion filed by the Union on July 18, 1980, a repre- sentation hearing was held on August 12 and 13, 1980. Thereafter, on September 24, 1980, the Acting Regional Director for Region 31 issued a Decision and Direction of Election in which he found appropriate a unit of all professional employ- ees employed by Respondent at its facility at 5000 San Bernardino Street, Montclair, California, but excluding office clerical employees, physicians, registered nurses, contract employees, guards, all other employees and supervisors as defined in the Act, as amended. On October 3, 1980, Respondent filed a request for review of the Acting Regional Director's Decision and Direction of Election on the ground that the Acting Regional Director erred in excluding registered nurses from the bar- gaining unit found appropriate. On October 27, 1980, the Board granted Respondent's request for review. Thereafter, on October 31, 1980, pursuant to the Decision and Direction of Election referred to above, an election by secret ballot was held. The ballots were impounded pending issuance of the Board's Decision on Review and Direction. On March 12, 1981, the Board issued its Deci- sion on Review and Direction affirming the deci- sion of the Acting Regional Director as to the ap- propriateness of the unit and directing that the bal- 895 I)ECISI)NS O()F NA I()ONAl I.AB()R RELAT IONS H()OARD lots be opened and counted. 2 Pursuant thereto, the ballots were opened and counted on March 27, 1981. The final tally disclosed that, of approximate- ly 13 eligible voters, 7 cast votes in favor of the Union, and 3 against. There was one challenged ballot which was not sufficient to affect the out- come of the election. On April 12, 1981, Respondent filed Objections to Conduct of Election and Conduct Affecting Re- sults of Election. On May 7, 1981, the Regional Di- rector for Region 31 issued a Supplemental Deci- sion and Certification of Representative, overruling Respondent's objections and certifying the Union as the exclusive representative of the employees in the unit found appropriate. Respondent timely filed a request for review of the Regional Director's Supplemental Decision and Certification of Repre- sentative. On June 30, 1981, the Board denied Re- spondent's request for review. Thereafter, the Union, by letter dated August 11, 1981, requested Respondent to bargain with it col- lectively with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. Respondent, by letter dated August 25, 1981, refused the Union's request to bargain, stating that the Board had improperly certified the Union. In its answer to the complaint, and in its re- sponse to the Notice To Show Cause, Respondent alleges two affirmative defenses. First, it alleges that the Board erroneously determined the appro- priateness of the certified unit. Second, it alleges that the Board erred in overruling its objections to the election. 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. 2 Reported at 254 NL.RB 1374 ' See Pittsburgh Platt Glass Co. * N.L. RB., 313 U S 146. 1t2 (1941); Rules and Regulations of the Board, Secs 102.67(f) and 102.69 (c). On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. IHE BUSINESS OF RESPONDENT Respondent is now, and has been at all times ma- terial herein, a corporation duly organized under and existing by virtue of the laws of the State of California, with an office and principal place of business located in Montclair, California, where it is engaged in the operation of a proprietary hospi- tal. Its annual gross revenues exceed $250,000. An- nually it purchases and receives goods or services valued in excess of $2,000 directly from suppliers 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 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. 11. THE I ABOR ORGANIZATION INVOLVED Retail Clerks Union Local 1428, chartered by the United Food and Commercial Workers Interna- tional Union, AFL-CIO, CLC, is a labor organiza- tion 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 professional employees employed by Re- spondent at its facility located at 5000 San Bernardino Street, Montclair, California, but excluding office clerical employees, physicians, registered nurses, contract employees, guards, all other employees, and supervisors as defined in the Act as amended. 2. The certification On October 31, 1980, a majority of the employ- ees of Respondent in said unit, in a secret-ballot election conducted under the supervision of the Regional Director for Region 31, designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the collective-bar- gaining representative of the employees in said unit on May 7, 1981, and the Union continues to be X96 DOCTORS' HOSPITAL OF MONTCLAIR such exclusive representative within the meaning of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about August 11, 1981, 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 August 25, 1981, and continu- ing at all times thereafter to date, Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive representa- tive for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since August 25, 1981, and at all times thereafter, refused to bargain collectively with the Union as the exclu- sive representative of the employees in the appro- priate unit, and that, by such refusal, Respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8(a)(5) and (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 commerce. 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. Doctors' Hospital of Montclair is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Retail Clerks Union Local 1428, chartered by the United Food and Commercial Workers Interna- tional Union, AFL-CIO, CLC, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. All professional employees employed by Re- spondent at its facility located at 5000 San Bernar- dino Street, Montclair, California, but excluding office clerical employees, physicians, registered nurses, contract employees, guards, all other em- ployees and supervisors as defined in the Act, as amended, constitute a unit appropriate for the pur- poses of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since May 7, 1981, the above-named labor or- ganization 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 August 25, 1981, and at all times thereafter, to bargain collectively with the above-named labor organization 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 prac- tices 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, Doctors' Hospital of Montclair, Montclair, Califor- nia, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: 897 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Retail Clerks Union Local 1428, chartered by the United Food and Commercial Workers International Union, AFL-CIO, CLC, as the exclusive bargaining repre- sentative of its employees in the following appro- priate unit: All professional employees employed by Re- spondent at its facility located at 5000 San Bernardino Street, Montclair, California, but excluding office clerical employees, physicians, registered nurses, contract employees, guards, all other employees and supervisors as defined in the Act, as amended. (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 Montclair, California, facility copies of the attached notice marked "Appendix." 4 Copies of said notice, on forms provided by the Regional Director for Region 31, 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, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 31, in writing, within 20 days from the date of this Order, what steps have been taken to comply here- with. ' In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the weords in the lotlnce rcading "tosled hb Order of the N ational l abor Relatiotns Board" hhall read "Posttd Pl'kursu ant to a Judgment ol the UI lted States Court itf Appeals I rilofrcilg tan Order of the Natilonal 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 Retail Clerks Union Local 1428, char- tered by the United Food and Commercial Workers International Union, AFL-CIO, CLC, as the exclusive representative 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 professional employees employed by the Employer at its facility located at 5000 San Bernardino Street, Montclair, California, but excluding office clerical employees, physi- cians, registered nurses, contract employees, guards, all other employees and supervisors as defined in the Act as amended. DOCTORS' HOSPITAL OF MONTCLAIR 898