Long Island Jewish Hillside Medical Center

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Long Island Jewish Hillside Medical Center and League of Registered Nurses, District 1199, Na- tional Union or Hospital and Health Care Em- ployees, Retail, Wholesale and Department Store Union, AFL-CIO. Case 29-CA-9627 April 16, 1982 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZIMMERMAN Upon a charge filed on April 6, 1982, by the League of Registered Nurses, District 1199, Na- tional Union of Hospital and Health Care Employ- ees, Retail, Wholesale and Department Store Union, AFL-CIO, herein called the Union, and duly served on Long Island Jewish Hillside Medi- cal Center, herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 29, issued a com- plaint on April 6, 1982, against Respondent, alleg- ing that Respondent had engaged in and was en- gaging 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 Rela- tions Act, as amended. Copies of the charge and complaint and notice of hearing before an adminis- trative 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 October 15, 1981, following a Board election in Case 29-RC- 5470, the Union was duly certified as the exclusive collective-bargaining representative of Respond- ent's employees in the unit found appropriate;' and that, commencing on or about October 19, 1981, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collec- tively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On April 7, 1982, Re- spondent filed its answer to the complaint admit- ting in part, and denying in part, the allegations in the complaint. On April 12, 1982, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Both Respondent and the Union have waived the issuance by the Board of an Order To Show Cause in this proceeding. 'Official notice is taken of the record in the representation proceeding, Case 29-RC-5470, 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 Co v. Penello, 269 F.Supp. 573 (D.C.Va. 1967); Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968); Sec. 9(d) of the NLRA, as amended. 261 NLRB No. 39 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, Respondent admits its refusal to bargain but denies that it there- by violated Section 8(a)(5) and (1) of the Act. Re- spondent's answer to the complaint contends in- stead that the bargaining unit described in the com- plaint is not appropriate for purposes of collective bargaining within the meaning of the Act. Counsel for the General Counsel argues that such a conten- tion is without merit inasmuch as it raises an issue which was presented to and decided by the Board in the underlying representation case. We agree. A review of the record herein, including the record in Case 29-RC-5470, shows the following: On June 30, 1981, the Union filed a petition in Case 29-RC-5470 to represent certain employees of Re- spondent. After a hearing, the Regional Director issued a Decision and Direction of Election, in which he found that the following employees con- stituted an appropriate unit: All full-time and regular part-time registered nurses, including staff nurses, nurse practition- ers, assistant nursing care coordinators, and per diem staff nurses employed by the Re- spondent at its Manhasset division, excluding all other employees, clinical nurse specialists, guards, and supervisors as defined in the Act, including the director of nursing, associate di- rector of nursing, assistant directors of nursing and nursing care coordinators. On September 21, 1981, Respondent filed a request for review of the Regional Director's decision, contending, inter alia, that the Regional Director erred by finding appropriate a registered nurses unit limited to a single division. On October 1, 1981, the Board denied Respondent's request for review. On October 1, 1981, an election by secret ballot was conducted under the direction and supervision of the Regional Director for Region I among the employees in the unit found appropriate. The tally was 41 votes for the Union, 3 votes for the Interve- nor (New York State Nurses Association), and 32 votes against the participating labor organizations. There were no challenged ballots, and no objec- tions were filed to the conduct of the election. Thereafter, on October 15, 1981, the Regional Di- rector issued a Certification of Representative, cer- 200 LONG ISLAND JEWISH HILLSIDE MEDICAL CENTER tifying the Union as the exclusive representative of the following appropriate unit: INCLUDED: All full-time and regular part- time registered nurses, including staff nurses, nurse practitioners, assistant nursing care coor- dinators, and per diem staff nurses employed by the Employer at its Manhasset division. EXCLUDED: All other employees, clinical nurse specialists, guards, and supervisors as de- fined in the Act, including the director of nursing, associate director of nursing, assistant directors of nursing and nursing care coordina- tors. Subsequently, on or about October 19, 1981, the Union requested that Respondent meet and negoti- ate with the Union with respect to rates of pay, wages, hours of employment and other terms and conditions of employment of the employees in the unit found appropriate. Since that date, and con- tinuing to the present, Respondent has refused, and continues to refuse, to recognize the Union and to bargain with the Union as the exclusive collective- bargaining representative of the employees in the unit found appropriate. 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) and (1) is not entitled to relitigate issues which were or could have been litigated in a prior representation pro- ceeding. 2 All issues raised by Respondent in this proceeding were or could have been litigated in the prior representation proceeding, and Respond- ent does not offer to adduce at a hearing any newly discovered or previously unavailable evi- dence, nor does it allege that any special circum- stances exist herein which would require the Board to reexamine the decision made in the representa- tion proceeding. We therefore find that Respond- ent has not raised any issue which is properly liti- gable in this unfair labor practice proceeding. Ac- cordingly, this proceeding is transferred to the Board and we grant counsel for the General Coun- sel'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 New York corporation, maintains its principal office and place of business at 270-05 76th Avenue, New Hyde Park, New York, and is I See Pittsburgh Plate Glass Co. v. N.LR.B., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c). engaged both in New Hyde Park and in Manhasset, New York, in the operation of hospitals. During the past 12 months, Respondent has received gross revenues in excess of $250,000 and has made pur- chases of food, drugs, and medical and other sup- plies valued in excess of $50,000 directly from points outside the State of New York. 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 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. II. THE LABOR ORGANIZATION INVOLVED League of Registered Nurses, District 1199, Na- tional Union of Hospital and Health Care Employ- ees, Retail, Wholesale and Department Store Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. II11. 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 registered nurses, including staff nurses, nurse practition- ers, assistant nursing care coordinators, and per diem staff nurses employed by the Re- spondent at its Manhasset division, excluding all other employees, clinical nurse specialists, guards, and supervisors as defined in the Act, including the director of nursing, associate di- rector of nursing, assistant directors of nursing and nursing care coordinators. 2. The certification On October 1, 1981, a majority of the employees in said unit, in a secret-ballot election conducted under the supervision of the Regional Director for Region 29, designated the Union as their repre- sentative 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 October 15, 1981, and the Union continues to be such exclusive representative within the meaning of Section 9(a) of the Act. 201 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. The Request To Bargain and Respondent's Refusal Commencing on or about October 19, 1981, and at all times thereafter, the Union has requested Re- spondent to bargain collectively with it as the ex- clusive collective-bargaining representative of all the employees in the above-described unit. Commencing on or about October 19, 1981, and continuing at all times thereafter to date, Respond- ent has refused, and continues to refuse, to recog- nize and bargain with the Union as the exclusive representative for collective bargaining of all em- ployees in said unit. Accordingly, we find that Respondent has, since October 19, 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(a)(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. Long Island Jewish Hillside Medical Center is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. League of Registered Nurses, District 1199, National Union of Hospital and Health Care Em- ployees, Retail, Wholesale and Department Store Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time registered nurses, including staff nurses, nurse practitioners, assistant nursing care coordinators, and per diem staff nurses employed by the Respondent at its Manhasset division, excluding all other employees, clinical nurse specialists, guards, and supervisors as defined in the Act, including the director of nurs- ing, associate director of nursing, assistant directors of nursing and nursing care coordinators, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since October 15, 1981, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the aforesaid appropriate unit for the purpose of collec- tive bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about October 19, 1981, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclu- sive bargaining representative of all the employees of Respondent in the appropriate unit, Respondent has engaged in and is engaging in unfair labor prac- tices 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, Long Island Jewish Hillside Medical Center, Man- hasset, New York, its officers, agents, successors, and assigns, shall: 202 LONG ISLAND JEWISH HILLSIDE MEDICAL CENTER 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with the League of Reg- istered Nurses, District 1199, National Union of Hospital and Health Care Employees, Retail, Wholesale and Department Store Union, AFL- CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All full-time and regular part-time registered nurses, including staff nurses, nurse practition- ers, assistant nursing care coordinators, and per diem staff nurses employed by the Re- spondent at its Manhasset division, excluding all other employees, clinical nurse specialists, guards, and supervisors as defined in the Act, including the director of nursing, associate di- rector of nursing, assistant directors of nursing and nursing care coordinators. (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 its Manhasset, New York, location copies of the attached notice marked "Appendix."3 Copies of said notice, on forms provided by the Regional Director for Region 29, after being duly signed by Respondent's representative, shall be posted by Respondent 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. Reasonable steps shall be taken by Re- ' 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." spondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 29, in writing, within 20 days from the date of this Order, what steps have been taken to comply here- with. 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 League of Registered Nurses, District 1199, National Union of Hospital and Health Care Employees, Retail, Wholesale and De- partment Store Union, AFL-CIO, as the ex- clusive representative 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 registered nurses, including staff nurses, nurse practi- tioners, assistant nursing care coordinators, and per diem staff nurses employed by the Respondent at its Manhasset division, ex- cluding all other employees, clinical nurse specialists, guards, and supervisors as de- fined in the Act, including the director of nursing, associate director of nursing, assist- ant directors of nursing and nursing care coordinators. LONG ISLAND JEWISH HILLSIDE MEDICAL CENTER 203