West Jersey Health System

1 324 NLRB No. 90 1 We therefore deny the Respondent’s motion to revoke the Union’s certification. 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. West Jersey Health System and JNESO District Council 1, International Union of Operating Engineers, AFL–CIO. Case 4–CA–26251 September 29, 1997 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS FOX AND HIGGINS Pursuant to a charge filed on July 14, 1997, the General Counsel of the National Labor Relations Board issued a complaint on July 23, 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 4–RC–18804. (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 and submitting affirmative defenses. On August 18, 1997, the General Counsel filed a Motion for Summary Judgment. On August 20, 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 September 11, 1997, the Respondent filed a response and motion to revoke certification. Ruling on Motion for Summary Judgment In its answer and response the Respondent admits its refusal to bargain but attacks the validity of the certifi- cation on the basis of its objections to the election in the representation 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.1 On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a New Jersey corporation with facilities located in Marlton, Berlin, Camden, Gibbsboro, and Voorhees, New Jersey, has been engaged in the operation of a not-for-profit acute care hospital system. During the 12-month period pre- ceding the issuance of the complaint, the Respondent, in conducting its business operations described above, received gross revenues in excess of $250,000 and pur- chased and received goods and materials valued in ex- cess of $50,000 directly from points outside the State of New Jersey. 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 April 12, 1996, the Union was certified on May 8, 1997, as the exclusive collective-bargaining representative of the employees in the following appropriate unit: All full-time and regular part-time registered, graduate and pool/per diem nurses employed by Respondent at its Marlton, Berlin, Camden, Voor- hees, and Gibbsboro, New Jersey facilities, in- cluding registered nurses, care coordinators, enterostomal therapists, clinical educators, clinical nurse specialists, clinical resource coordinators, outcome research coordinators, case managers, in- fection control coordinators, infection control practitioners, home care coordinators, flight RNs, q.a. facilitators, documentation team leaders, antenatal testing unit coordinators, community educators, and home care RNs, but excluding all other employees, supervisors and guards as de- fined in the Act. The Union continues to be the exclusive representative under Section 9(a) of the Act. B. Refusal to Bargain Since about June 5, 1997, the Union has requested the Respondent to bargain, and, since about July 2, 1997, the Respondent has refused. We find that this re- fusal constitutes an unlawful refusal to bargain in vio- lation of Section 8(a)(5) and (1) of the Act. 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 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.’’ CONCLUSION OF LAW By refusing on and after July 2, 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, West Jersey Health System, Marlton, Ber- lin, Camden, Gibbsboro, and Voorhees, New Jersey, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with JNESO District Council 1, International Union of Operating Engineers, AFL– CIO, 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: All full-time and regular part-time registered, graduate and pool/per diem nurses employed by Respondent at its Marlton, Berlin, Camden, Voor- hees, and Gibbsboro, New Jersey facilities, in- cluding registered nurses, care coordinators, enterostomal therapists, clinical educators, clinical nurse specialists, clinical resource coordinators, outcome research coordinators, case managers, in- fection control coordinators, infection control practitioners, home care coordinators, flight RNs, q.a. facilitators, documentation team leaders, antenatal testing unit coordinators, community educators, and home care RNs, but excluding all other employees, supervisors and guards as de- fined in the Act. (b) Within 14 days after service by the Region, post at its facilities in Marlton, Berlin, Camden, Gibbsboro, and Voorhees, New Jersey, copies of the attached no- tice marked ‘‘Appendix.’’2 Copies of the notice, on forms provided by the Regional Director for Region 4 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 July 14, 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. September 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 WEST JERSEY HEALTH SYSTEM 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 JNESO District Council 1, International Union of Operating Engineers, AFL–CIO, as the exclusive representative of the em- ployees 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 registered, graduate and pool/per diem nurses employed by us at our Marlton, Berlin, Camden, Voorhees, and Gibbsboro, New Jersey facilities, including reg- istered nurses, care coordinators, enterostomal therapists, clinical educators, clinical nurse spe- cialists, clinical resource coordinators, outcome research coordinators, case managers, infection control coordinators, infection control practition- ers, home care coordinators, flight RNs, q.a. facilitators, documentation team leaders, antenatal testing unit coordinators, community educators, and home care RNs, but excluding all other em- ployees, supervisors and guards as defined in the Act. WEST JERSEY HEALTH SYSTEM