Tenet Healthcare, Inc. d/b/a Sierra Vista Regional Medical Center

1 324 NLRB No. 56 1 In its opposition to the Motion for Summary Judgment, the Re- spondent also argues that summary judgment is improper because the Board never ruled on its request for review of the inclusion of part-time employees in the bargaining unit. Contrary to the Respond- ent’s assertion, this issue was considered by the Board and the Board’s July 2, 1997 Order denied the Respondent’s request for re- view of the Regional Director’s Decision and Direction of Election with respect to all issues raised in the Respondent’s request for re- view, including the part-time issue. 2 We note that the United States Court of Appeals for the Ninth Circuit recently enforced the Board’s decision in Providence Hos- pital, 320 NLRB 717 (1996), which was one of the cases relied on by the Board in denying review of the Regional Director’s finding that the Respondent’s RNs are not statutory supervisors. Providence Alaska Medical Center v. NLRB, 156 LRRM 2001 (9th Cir. 1997). 3 Member Higgins did not participate in the underlying representa- tion case. However, he agrees that the Respondent has raised no new issues warranting a hearing in this ‘‘technical’’ 8(a)(5) case, and that summary judgment is therefore appropriate. 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. Tenet Healthcare, Inc. d/b/a Sierra Vista Regional Medical Center and California Nurses Associa- tion. Case 31–CA–22648 August 29, 1997 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS FOX AND HIGGINS Pursuant to a charge filed on April 18, 1997, the General Counsel of the National Labor Relations Board issued a complaint on June 26, 1997, alleging that the Respondent has violated Section 8(a)(5) and (1) of the National Labor Relations Act by refusing the Union’s request to bargain following the Union’s cer- tification in Case 31–RC–7328. (Official notice is taken of the ‘‘record’’ in the representation proceeding as defined in the Board’s Rules and Regulations, Secs. 102.68 and 102.69(g); Frontier Hotel, 265 NLRB 343 (1982).) The Respondent filed an answer admitting in part and denying in part the allegations in the com- plaint. On August 4, 1997, the General Counsel filed a Mo- tion for Summary Judgment. On August 7, 1997, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. On August 20, 1997, the Re- spondent filed an opposition to the Motion for Sum- mary Judgment. Ruling on Motion for Summary Judgment In its answer and in its response the Respondent ad- mits its refusal to bargain but attacks the validity of the certification on the basis of its contentions in the representation proceeding that the unit improperly in- cluded supervisors and part-time employees, and that alleged supervisory conduct tainted the election.1 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.2 We therefore find that the Respondent has not raised any representation issue that is properly lit- igable 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 Judgment.3 On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a California corporation with an office and place of business in San Luis Obispo, California, has been engaged in the oper- ation of an acute care hospital. During the 12-month period preceding the issuance of the complaint, the Re- spondent in conducting its business operations de- scribed above, derived gross revenues in excess of $250,000, and purchased and received at its San Luis Obispo, California facility goods valued in excess of $50,000 directly from firms located outside the State of California. We find that the Respondent is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) 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 January 25, 1996, the Union was certified on January 8, 1997, as the exclu- sive collective-bargaining representative of the employ- ees in the following appropriate unit: Included: Full-time and regular part-time reg- istered nurses employed by Sierra Vista Medi- cal Center in San Luis Obispo, California. Excluded: Office clerical employees, managers, assistant manager, directors, coordinators in- cluding risk manager/infection control coordina- tor, education coordinator, quality improvement coordinator, pain center coordinator, case man- agement coordinator, and clinical care director, all other employees, guards and supervisors as defined in the Act. 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 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.’’ The Union continues to be the exclusive representative under Section 9(a) of the Act. B. Refusal to Bargain Since January 30, 1997, the Union has requested the Respondent to bargain and, since March 21, 1997, the Respondent has refused. We find that this refusal con- stitutes 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 March 21, 1997, to bargain with the Union as the exclusive collective-bargaining representative of employees in the appropriate unit, the Respondent has engaged in unfair labor practices af- fecting commerce within the meaning of Section 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, Tenet Healthcare, Inc. d/b/a Sierra Vista Regional Medical Center, San Luis Obispo, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with California Nurses Asso- ciation as the exclusive bargaining representative 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: Included: Full-time and regular part-time reg- istered nurses employed by Sierra Vista Medi- cal Center in San Luis Obispo, California. Excluded: Office clerical employees, managers, assistant manager, directors, coordinators in- cluding risk manager/infection control coordina- tor, education coordinator, quality improvement coordinator, pain center coordinator, case man- agement coordinator, and clinical care director, all other employees, guards and supervisors as defined in the Act. (b) Within 14 days after service by the Region, post at its facility in San Luis Obispo, California, copies of the attached notice marked ‘‘Appendix.’’4 Copies of the notice, on forms provided by the Regional Director for Region 31 after being signed by the Respondent’s authorized representative, shall be posted by the Re- spondent 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 no- tices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these pro- ceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Re- spondent at any time since April 18, 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. August 29, 1997 llllllllllllllllll William B. Gould IV, Chairman llllllllllllllllll Sarah M. Fox, Member llllllllllllllllll John E. Higgins, Jr., Member (SEAL) NATIONAL LABOR RELATIONS BOARD 3 SIERRA VISTA REGIONAL MEDICAL CENTER 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 California Nurses Association as the exclusive representative 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: Included: Full-time and regular part-time reg- istered nurses employed by us in our San Luis Obispo, California, facility. Excluded: Office clerical employees, managers, assistant manager, directors, coordinators in- cluding risk manager/infection control coordina- tor, education coordinator, quality improvement coordinator, pain center coordinator, case man- agement coordinator, and clinical care director, all other employees, guards and supervisors as defined in the Act. TENET HEALTHCARE, INC. D/B/A SIERRA VISTA REGIONAL MEDICAL CENTER