Community Health Services, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Community Health Services, Inc. and Local #5050, Federation of Community Health Professionals, a/w Maine Federation of Teachers, Nurses and Health Professionals, AFT-AFL-CIO. Case 1- CA-19384 April 27, 1982 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZIMMERMAN Upon a charge filed on December 24, 1981, by Local #5050, Federation of Community Health Professionals, a/w Maine Federation of Teachers, Nurses and Health Professionals, AFT-AFL-CIO, herein called the Union, and duly served on Com- munity Health Services, Inc., herein called Re- spondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 1, issued a complaint on January 18, 1982, against Respondent, alleging that Respondent had engaged in and was engaging 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 Relations Act, as amended. Copies of the charge and complaint and notice of hearing before an administrative 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 November 20, 1981, following a Board election in Case l-RC- 17139, the Union was duly certified as the exclu- sive collective-bargaining representative of Re- spondent's employees in the unit found appropri- ate;1 and that, commencing on or about December 3, 1981, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bar- gaining representative, although the Union has re- quested and is requesting it to do so. On January 22, 1982, Respondent filed its answer to the com- plaint admitting in part, and denying in part, the al- legations in the complaint. On February 8, 1982, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on February 12, 1982, 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 'Official notice is taken of the record in the representation proceeding, Case I-RC-17139, 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 LTV Electrosystems. Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (4th Cir. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26 (5th Cir. 1969); Intertype Ca v. Penello, 269 F.Supp. 573 (D.C.Va. 1967); Follen Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968); Sec. 9(d) of the NLRA, as amended. 261 NLRB No. 37 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 answer to the complaint and its response to the Notice To Show Cause, Respondent admits its refusal to bargain but denies that it thereby violat- ed Section 8(a)(5) and (1) of the Act. Respondent's answer to the complaint contends that the bargain- ing unit described in the complaint (which was found by the Board to be appropriate in its No- vember 20, 1981, Decision) is not appropriate for purposes of collective bargaining within the mean- ing of the Act. In its response to the Notice To Show Cause, Respondent further states that (1) there are no genuine issues of fact at issue herein; (2) the only issue is one of law, namely, whether the bargaining unit certified herein is appropriate; and (3) Respondent is entitled to summary judg- ment as a matter of law on the ground that the cer- tified unit is not appropriate. Counsel for the Gen- eral Counsel argues that Respondent's contentions are without merit as they raise issues which were presented to and decided by the Board in the un- derlying representation case. We agree. A review of the record herein, including the record in Case 1-RC-17139, shows the following: On December 29, 1980, the Union filed a petition in Case 1-RC-17139, to represent certain employ- ees of Respondent. After a hearing, the Acting Re- gional Director issued a Decision and Direction of Election, in which he found that the following em- ployees constituted an appropriate unit: All full-time and regular part-time professional employees employed by the Employer at its various locations within the State of Maine, in- cluding registered nurses, graduate nurses, physical therapists, occupational therapists and mental health workers, but excluding all other employees, licensed practical nurses, VD epi- demiologists, outreach workers, home health aides, office clerical employees, guards and su- pervisors as defined in the Act. On February 18, 1981, Respondent filed a request for review of the Acting Regional Director's Deci- sion, contending inter alia that the Acting Regional Director erred by finding a unit limited to Re- spondent's professional employees appropriate and by finding that Respondent's mental health workers 340 COMMUNITY HEALTH SERVICES, INC. (MHWs) are professional employees under the Act. On March 5, the Board denied Respondent's re- quest for review, but amended the Acting Regional Director's Decision to permit the MHWs to vote subject to challenge. On March 6, 1981, an election by secret ballot was conducted under the direction and supervision of the Regional Director for Region 1 among the employees in the amended unit. The tally was 27 votes for, and 23 votes against, the Union, with 12 determinative challenged ballots. On March 13, 1981, Respondent filed timely objections to the conduct of the election. On April 23, 1981, the Regional Director issued a Supplemental Decision which overruled Re- spondent's objections and the challenges to the bal- lots of the 12 MHWs and directed that their ballots be opened and counted. Thereafter, on May 5, 1981, Respondent filed a request for review of the Regional Director's Supplemental Decision. On June 26, 1981, the Board granted Respondent's re- quest for review solely with respect to the Region- al Director's disposition of the 12 challenged bal- lots of the MHWs. On November 20, 1981, the Board issued its De- cision on Review and Certification of Representa- tive. 2 The Board found, contrary to the Regional Director, that Respondent's 12 MHWs should be excluded from the unit, and that the challenges to their ballots should therefore be sustained. Accord- ingly, the Board issued a Certification of Repre- sentative, certifying the Union as the exclusive rep- resentative of the following appropriate unit: All full-time and regular part-time professional employees employed by the Employer at its various locations within the State of Maine, in- cluding registered nurses, graduate nurses, physical therapists and occupational therapists, but excluding all other employees, licensed practical nurses, VD epidemiologists, outreach workers, home health aides, mental health workers, office clerical employees, guards and supervisors as defined in the Act. Subsequently, by letter dated November 25, 1981, the Union requested that Respondent meet for the purpose of bargaining and negotiating a col- lective-bargaining agreement. By letter dated De- cember 3, 1981, Respondent refused to bargain with the Union, in order to seek judicial review as to the appropriate bargaining unit. The issues which Respondent seeks to raise at this time were raised and decided by the Board in the underlying representation proceeding. In deny- ing Respondent's February 18, 1981, request for '259 NLRB 362. review, the Board found that Respondent had raised no substantial issues warranting review as to the Acting Regional Director's finding that a unit consisting of Respondent's professional employees was appropriate. Furthermore, Respondent ac- knowledges that it is refusing to bargain with the Union in order to obtain judicial review of the Board's findings. 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. 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 coun- sel for the General Counsel's Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent, a Maine corporation, maintains its principal office and place of business at 98 Chest- nut Street, Portland, Maine, and is engaged at that location, and other locations within the State of Maine, in providing community health and home health care services. Respondent, in the course and conduct of its business, causes and continuously has caused, at all times herein mentioned, large quanti- ties of materials used by it in the course of its oper- ations to be purchased and transported in interstate commerce from and through various States of the United States other than the State of Maine. In the course and conduct of its above-described oper- ations, Respondent annually derives gross revenues in excess of $1 million, and receives at its various Maine locations income, goods, and materials valued in excess of $10,000 directly from points outside the State of Maine. 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 I See Pittsburgh Plate Glass CO. v. N.LR.A, 313 U.S. 146, 162 (1941);, Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c). 341 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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. I1. THE LABOR ORGANIZATION INVOLVED Local #5050, Federation of Community Health Professionals, a/w Maine Federation of Teachers, Nurses and Health Professionals, AFT-AFL-CIO, is a labor organization within the meaning of Sec- tion 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 full-time and regular part-time professional employees employed by the Employer at its various locations within the State of Maine, in- cluding registered nurses, graduate nurses, physical therapists and occupational therapists, but excluding all other employees, licensed practical nurses, VD epidemiologists, outreach workers, home health aides, mental health workers, office clerical employees, guards and supervisors as defined in the Act. 2. The certification On March 6, 1981, a majority of the employees of Respondent in said unit, in a secret-ballot elec- tion conducted under the supervision of the Re- gional Director for Region 1, 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 November 20, 1981, and the Union continues to be such exclusive representative within the mean- ing of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about November 25, 1981, and at all times thereafter, the Union has requested Respondent to bargain collectively with it as the exclusive collective-bargaining representative of all the employees in the above-described unit. Com- mencing on or about December 3, 1981, and con- tinuing at all times thereafter to date, Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive repre- sentative for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since December 3, 1981, and at all times thereafter, re- fused to bargain collectively with the Union as the exclusive representative of the employees in the ap- propriate unit, and that, by such refusal, Respond- ent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(aX)(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 com- merce. 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. Community Health Services, Inc., is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local #5050, Federation of Community Health Professionals, a/w Maine Federation of Teachers, Nurses and Health Professionals, AFT- 342 COMMUNITY HEALTH SERVICES, INC. AFL-CIO, is a labor organization within the mean- ing of Section 2(5) of the Act. 3. All full-time and regular part-time professional employees employed by the Employer at its var- ious locations within the State of Maine, including registered nurses, graduate nurses, physical thera- pists and occupational therapists, but excluding all other employees, licensed practical nurses, VD epi- demiologists, outreach workers, home health aides, mental health workers, office clerical employees, guards and supervisors as defined in the Act, con- stitute a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act. 4. At all time since March 6, 1981, and Novem- ber 20, 1981, the above-named labor organization has been and now is the certified and exclusive rep- resentative of all employees in the aforesaid appro- priate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about December 3, 1981, and at all times thereafter, to bargain collectively with the above-named labor organization as the ex- clusive bargaining representative of all the employ- ees of Respondent in the appropriate unit, Re- spondent has engaged in and is engaging in unfair labor practices 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, Community Health Services, Inc., Portland, Maine, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Local #5050, Fed- eration of Community Health Professionals, a/w Maine Federation of Teachers, Nurses and Health Professionals, AFT-AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All full-time and regular part-time professional employees employed by the Employer at its various locations within the State of Maine, in- cluding registered nurses, graduate nurses, physical therapists and occupational therapists, but excluding all other employees, licensed practical nurses, VD epidemiologists, outreach workers, home health aides, mental health workers, office clerical employees, guards and supervisors as defined in the Act. (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 all of its Maine locations copies of the attached notice marked "Appendix." 4 Copies of said notice, on forms provided by the Regional Di- rector for Region 1, after being duly signed by Re- spondent's representative, shall be posted by Re- spondent 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. Rea- sonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 1, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. ' In the event that 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 Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National 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 Local #5050, Federation of Community Health Professionals, a/w Maine Federation of Teachers, Nurses and Health Professionals, 343 DECISIONS OF NATIONAL LABOR RELATIONS BOARD AFT-AFL-CIO, as the exclusive representa- tive 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 full-time and regular part-time profes- sional employees employed by the Employer at its various locations within the State of Maine, including registered nurses, graduate nurses, physical therapists and occupational therapists, but excluding all other employ- ees, licensed practical nurses, VD epidemi- ologists, outreach workers, home health aides, mental health workers, office clerical employees, guards and supervisors as de- fined in the Act. COMMUNITY HEALTH SERVICES, INC. 344