Williamson Memorial

1 324 NLRB No. 163 NOTICE: This opinion is subject to formal revision before publication in the Board volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal er- rors so that corrections can be included in the bound volumes. Health Management Associates of West Virginia, Inc. d/b/a Williamson Memorial Hospital and United Mine Workers of America, AFL–CIO. Case 9–CA–35293 November 7, 1997 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS FOX AND HIGGINS Pursuant to a charge filed on September 12, 1997, the General Counsel of the National Labor Relations Board issued a complaint on September 16, 1997, al- leging that the Respondent has violated Section 8(a)(5) and (1) of the National Labor Relations Act by refus- ing the Union’s request to bargain following the Union’s certification in Case 9–RC–16865. (Official notice is taken of the ‘‘record’’ in the representation proceeding as defined in the Board’s Rules and Regu- lations, Secs. 102.68 and 102.69(g); Frontier Hotel, 265 NLRB 343 (1982).) The Respondent filed an an- swer admitting in part and denying in part the allega- tions in the complaint and asserting affirmative de- fenses. On October 9, 1997, the General Counsel filed a Motion for Summary Judgment. On October 15, 1997, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the mo- tion should not be granted. On October 29, 1997, the Respondent filed a response. Ruling on Motion for Summary Judgment In its answer and response the Respondent admits its refusal to bargain, but attacks the validity of the cer- tification on the basis of its objections to the election and the Board’s unit determinations in the representa- tion proceeding. All representation issues raised by the Respondent were or could have been litigated in the prior represen- tation proceeding. The Respondent does not offer to adduce at a hearing any newly discovered and pre- viously unavailable evidence, nor does it allege any special circumstances that would require the Board to reexamine the decision made in the representation pro- ceeding. We therefore find that the Respondent has not raised any representation issue that is properly litigable in this unfair labor practice proceeding. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accordingly, we grant the Motion for Summary Judg- ment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a corporation, has been engaged in the operation of an acute care hospital in Williamson, West Virginia. During the 12- month period preceding issuance of the complaint, the Respondent, in conducting its operations described above, derived gross revenues in excess of $250,000 and purchased and received at its Williamson, West Virginia facility goods valued in excess of $50,000 di- rectly from sources outside of the State of West Vir- ginia. We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and a health care institution within the meaning of Section 2(14) of the Act, and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held May 29, 1997, the Union was certified on August 15, 1997, as the exclu- sive collective-bargaining representative of the employ- ees in the following appropriate unit: All full-time and regular part-time technical em- ployees, skilled maintenance employees, including the maintenance specialist, and other nonprofes- sional employees, including the emergency room registration clerks, the out patient registration clerks, medical records department employees, the discharge planner, the human resources assistant, dietary supervisors, maintenance specialist, linen/- central sterilization technician and nursing admin- istration secretary, employed by the Employer at its Williamson, West Virginia facilities, but ex- cluding all confidential employees, business office clericals, including admission clerk, out patient scheduling clerk, relief admission supervisor, switchboard/PBX operator, data processing em- ployees and accounting department employees, and all professional employees, including reg- istered nurses, physicians, the nuclear medicine- lead technician/assistant manager of radiology services and medical technologists, guards and su- pervisors as defined in the Act. The Union continues to be the exclusive representative under Section 9(a) of the Act. B. Refusal to Bargain On August 21, 1997, the Union requested the Re- spondent to bargain, and, on August 28, 1997, the Re- spondent refused. We find that this refusal constitutes 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading ‘‘Posted by Order of the National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.’’ an unlawful refusal to bargain in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By refusing on and after August 28, 1997, to bar- gain with the Union as the exclusive collective-bar- gaining representative of employees in the appropriate unit, the Respondent has engaged in unfair labor prac- tices affecting commerce within the meaning of Sec- tion 8(a)(5) and (1) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has violated Sec- tion 8(a)(5) and (1) of the Act, we shall order it to cease and desist, to bargain on request with the Union and, if an understanding is reached, to embody the un- derstanding in a signed agreement. To ensure that the employees are accorded the serv- ices of their selected bargaining agent for the period provided by the law, we shall construe the initial pe- riod of the certification as beginning the date the Re- spondent begins to bargain in good faith with the Union. Mar-Jac Poultry Co., 136 NLRB 785 (1962); Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). ORDER The National Labor Relations Board orders that the Respondent, Health Management Associates of West Virginia, Inc. d/b/a Williamson Memorial Hospital, Williamson, West Virginia, its officers, agents, succes- sors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with United Mine Workers of America, AFL–CIO as the exclusive bargaining rep- resentative of the employees in the bargaining unit. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request, bargain with the Union as the exclu- sive representative of the employees in the following appropriate unit on terms and conditions of employ- ment and, if an understanding is reached, embody the understanding in a signed agreement: All full-time and regular part-time technical em- ployees, skilled maintenance employees, including the maintenance specialist, and other nonprofes- sional employees, including the emergency room registration clerks, the out patient registration clerks, medical records department employees, the discharge planner, the human resources assistant, dietary supervisors, maintenance specialist, linen/- central sterilization technician and nursing admin- istration secretary, employed by the Employer at its Williamson, West Virginia facilities, but ex- cluding all confidential employees, business office clericals, including admission clerk, out patient scheduling clerk, relief admission supervisor, switchboard/PBX operators, data processing em- ployees and accounting department employees, and all professional employees, including reg- istered nurses, physicians, the nuclear medicine- lead technician/assistant manager of radiology services and medical technologists, guards and su- pervisors as defined in the Act. (b) Within 14 days after service by the Region, post at its facility in West Virginia, copies of the attached notice marked ‘‘Appendix.’’1 Copies of the notice, on forms provided by the Regional Director for Region 9 after being signed by the Respondent’s authorized rep- resentative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceed- ings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own ex- pense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since September 12, 1997. (c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. Dated, Washington, D.C. November 7, 1997 llllllllllllllllll William B. Gould IV, Chairman llllllllllllllllll Sarah M. Fox, Member llllllllllllllllll John E. Higgins, Jr., Member (SEAL) NATIONAL LABOR RELATIONS BOARD 3 WILLIAMSON MEMORIAL HOSPITAL APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT refuse to bargain with United Mine Workers of America, AFL–CIO as the exclusive rep- resentative of the employees in the bargaining unit. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, bargain with the Union and put in writing and sign any agreement reached on terms and conditions of employment for our employees in the bargaining unit: All full-time and regular part-time technical em- ployees, skilled maintenance employees, including the maintenance specialist, and other nonprofes- sional employees, including the emergency room registration clerks, the out patient registration clerks, medical records department employees, the discharge planner, the human resources assistant, dietary supervisors, maintenance specialist, linen/- central sterilization technician and nursing admin- istration secretary, employed by us at our Williamson, West Virginia facilities, but exclud- ing all confidential employees, business office clericals, including admission clerk, out patient scheduling clerk, relief admission supervisor, switchboard/PBX operators, data processing em- ployees and accounting department employees, and all professional employees, including reg- istered nurses, physicians, the nuclear medicine- lead technician/assistant manager of radiology services and medical technologists, guards and su- pervisors as defined in the Act. HEALTH MANAGEMENT ASSOCIATES OF WEST VIRGINIA, INC. D/B/A WILLIAM- SON MEMORIAL HOSPITAL