Spectrum Health Care

1 325 NLRB No. 84 1 The Respondent’s Cross Motion for Summary Judgment is de- nied as the record evidence establishes the General Counsel’s allega- tions, and thus, summary judgment is appropriate. 2 Member Brame did not participate in the underlying representa- tion case. He joins his colleagues in granting summary judgment on the terms that the Respondent has not raised anything that is prop- erly litigable before the Board in this test-of-certification case. 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. Spectrum Healthcare Services, Inc. d/b/a Correc- tional Medical Services and American Federa- tion of State, County and Municipal Employees (AFSCME), Council 31, AFL–CIO. Case 33– CA–12535 March 26, 1998 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS FOX AND BRAME Pursuant to a charge filed on January 22, 1998, the General Counsel of the National Labor Relations Board issued a complaint and notice of hearing on February 9, 1998, 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 bar- gain following the Union’s certification in Case 33– RC–4199. (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 Respond- ent filed an answer, with affirmative defenses, admit- ting in part and denying in part the allegations in the complaint. On February 25, 1998, the General Counsel filed a Motion for Summary Judgment. On February 27, 1998, 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. The Respondent filed a re- sponse and Cross Motion for Summary Judgment. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Ruling on Motion for Summary Judgment In its answer the Respondent admits its refusal to bargain but attacks the validity of the certification on the basis of the Board’s jurisdictional determination in the representation proceeding. The Respondent alleges as affirmative defenses that the Board improperly as- serted jurisdiction over the health care unit, because the individuals responsible for administering, super- vising, managing, and directing the unit and its em- ployees are ‘‘public officials employed by the Illinois Department of Corrections, and serve at the pleasure of public officials.’’ 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.1 See Pitts- burgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accordingly, we grant the Motion for Sum- mary Judgment.2 On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a Missouri corporation, with an office and a place of business lo- cated, inter alia, in Sheridan, Illinois, has been engaged in the business of providing medical and health care services to inmates at correctional facilities. During the past calendar year (1997), the Respond- ent, in conducting its business operations, derived gross revenues in excess of $250,000 and during the same period of time, the Respondent purchased and re- ceived at its Sheridan, Illinois facility goods valued in excess of $50,000 directly from points outside the State of Illinois. We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and has been a health care institu- tion 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 November 5, 1997, the Union was certified on November 13, 1997, as the ex- clusive collective-bargaining representative of the em- ployees in the following appropriate unit: All full-time and regular part-time employees em- ployed by the Employer at the Sheridan Correc- tional Center in Sheridan, Illinois including all registered nurses, clinical psychologists, licensed practical nurses, x-ray technicians, dental assist- ants, and staff assistants; but excluding phar- macists, confidential employees, office clerical employees, guards and supervisors as defined in the Act. 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 3 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 At all times since December 15, 1997, the Union has requested, and is requesting, the Respondent to meet and bargain and, since on or about December 19, 1997, the Respondent has failed and refused. We find that this failure and refusal constitutes an unlawful re- fusal to meet and bargain in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By failing and refusing on and after December 19, 1997, to meet and bargain with the Union as the exclu- sive collective-bargaining representative of employees in the appropriate unit, the Respondent has engaged in unfair labor practices affecting 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 meet and bargain on request with the Union, and, if an understanding is reached, to em- body the understanding 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, Spectrum Healthcare Services, Inc., d/b/a Correctional Medical Services, Sheridan, Illinois, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to meet and bargain with American Federation of State, County and Municipal Employees (AFSCME), Council 31, 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, meet and bargain with the Union as the exclusive representative of the employees in the following appropriate unit on terms and conditions of employment and, if an understanding is reached, em- body the understanding in a signed agreement: All full-time and regular part-time employees em- ployed by the Employer at the Sheridan Correc- tional Center in Sheridan, Illinois including all registered nurses, clinical psychologists, licensed practical nurses, x-ray technicians, dental assist- ants, and staff assistants; but excluding phar- macists, confidential employees, office clerical employees, guards and supervisors as defined in the Act. (b) Within 14 days after service by the Region, post at its facility in Sheridan, Illinois, copies of the at- tached notice marked ‘‘Appendix.’’3 Copies of the no- tice, on forms provided by the Regional Director for Region 33, after being signed by the Respondent’s au- thorized 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 January 22, 1998. (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. March 26, 1998 llllllllllllllllll William B. Gould IV, Chairman llllllllllllllllll Sarah M. Fox, Member llllllllllllllllll J. Robert Brame III, Member (SEAL) NATIONAL LABOR RELATIONS BOARD 3 CORRECTIONAL MEDICAL SERVICES 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 American Fed- eration of State, County and Municipal Employees (AFSCME), Council 31, AFL–CIO 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, meet and 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 employees em- ployed by us at our Sheridan Correctional Center in Sheridan, Illinois including all registered nurses, clinical psychologists, licensed practical nurses, x-ray technicians, dental assistants, and staff assistants; but excluding pharmacists, con- fidential employees, office clerical employees, guards and supervisors as defined in the Act. SPECTRUM HEALTHCARE SERVICES, INC. D/B/A CORRECTIONAL MEDICAL SERV- ICES