Vista Hill Foundation, d/b/a Mesa Vista Hospital

MESA VISTA HOSPITAL Vista Hill Foundation, d/b/a Mesa Vista Hospital and Office and Professional Employees Interna- tional Union, Local 30, AFL-CIO, CLC. Case 21-CA-21364 September 30, 1982 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZIMMERMAN Upon a charge filed on June 23, 1982, by Office and Professional Employees International Union, Local 30, AFL-CIO, CLC, herein called the Union, and duly served on Vista Hill Foundation, d/b/a Mesa Vista Hospital, herein called Respond- ent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 21, issued a complaint on July 13, 1982, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor prac- tices 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 June 3, 1982, following Board elections in Cases 21-RC-16782 and 21-RC-16783, the Union was duly certified as the exclusive collective-bargaining representative of Respondent's employees in the units found ap- propriate;' and that, commencing on or about June 21, 1982, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bar- gain collectively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On July 20, 1982, Respondent filed its answer to the complaint admitting in part, and denying in part, the allega- tions in the complaint. On August 6, 1982, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on August 13, 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 proceed- ing, Cases 21-RC-16782, and 21-RC-16783, as the term "record" is de- fined 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. Pen- ello, 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. 264 NLRB No. 103 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, Respondent admits that it refused to bargain with the Union, but denies that its refusal was unlawful. Respond- ent's answer also contends that the Union should not have been certified, since it engaged in election misconduct. In its response to the Notice To Show Cause, Respondent relies on its objections to the elections and contends that the elections should be set aside, or that, alternatively, a hearing should be held. Counsel for the General Counsel contends that Respondent seeks to relitigate issues previously considered in the underlying representation pro- ceeding. Our review of the record herein, including the record in Cases 21-RC-16782 and 21-RC-16783, discloses that pursuant to Stipulations for Certifica- tion Upon Consent Election, secret-ballot elections were conducted on August 5, 1981, among Re- spondent's employees in two appropriate units. In Case 21-RC-16782, the tally was 23 for and 11 against the Union, with 3 nondeterminative chal- lenged ballots. In Case 21-RC-16783, the tally was 138 for and 40 against the Union, with I nondeter- minative challenged ballots. On August 11, 1981, Respondent filed timely objections to conduct af- fecting the results of both elections, alleging in sub- stance that the Union improperly offered to waive initiation fees, and that union representatives mis- represented the Board's disposition of an unfair labor practice proceeding against Respondent. After an investigation, the Regional Director issued his Report on Objections on August 31, 1981, in which he recommended that Respondent's objec- tions be overruled and that the Union be certified as the exclusive representative of the employees in both units. On September 10, 1981, Respondent filed timely exceptions to the Regional Director's report on objections. On June 3, 1982, the Board issued a Decision and Certification of Representa- tive, in which it adopted the Regional Director's recommendations and certified the Union as the ex- clusive representative of the employees in both units. 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- 765 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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.2 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.3 We therefore find that Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. Accordingly, we grant the 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 is a California nonprofit corporation engaged in the operation of an acute psychiatric hospital in San Diego, California. During the past 12-month period, in the normal course and conduct of its business operation, Respondent received gross revenues in excess of $1 million, and pur- chased and received goods valued in excess of $20,000 directly from suppliers located outside the State of California. 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. 2 See Pittsburgh Plate Glass Ca v. N.L.R.B., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c). I In the underlying representation proceeding, the Board agreed with the Regional Director that Respondent's Objection 2 should be overruled because it raised allegations about conduct which occurred prior to the filing of the petition. Respondent now contends that the Regional Direc- tor improperly failed to make findings as to whether the Union's pre-peti- tion conduct gave meaning and dimension to related post-petition con- duct. As an example of post-petition conduct, Respondent attached to its brief a document, dated July 20, 1982, which the Union distributed to employees. We note initially that Respondent did not offer any evidence of related post-petition conduct in its exceptions in the representation proceeding. We also note that, at fn. 2 of the Decision and Certification of Repre- sentative, the Board found that the Union's pre-petition conduct did not carry over into related post-petition conduct, citing Dresser Industries, Inc., 242 NLRB 74 (1979). Finally, we note that the only evidence of post-petition "conduct" submitted by Respondent is the above document, which the Union distributed more than a month after it had been certified by the Board and nearly a year after the elections. We find that this doc- ument is not the type of evidence which would require the Board to re- examine the decision made in the representation proceeding. II. THE LABOR ORGANIZATION INVOLVED Office and Professional Employees International Union, Local 30, AFL-CIO, CLC, is a labor orga- nization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The units The following employees of Respondent consti- tute units appropriate for collective-bargaining pur- poses within the meaning of Section 9(b) of the Act: All full-time, regular part-time, and regularly- scheduled on-call Registered Nurses employed by Respondent at its facility located at 7850 Vista Hill Avenue, San Diego, California; ex- cluding all other employees, non-professional employees (service and maintenance employ- ees, technical employees, and business office clerical employees), managerial employees, Nursing Coordinators, Head Nurses, Depart- ment Heads, guards and supervisors as defined in the Act. All full-time, regular part-time, and regularly- scheduled on-call non-professional employees, including service and maintenance employees (including recreational therapist aides and oc- cupational therapist aides), technical employ- ees and business office clerical employees em- ployed by Respondent at its facility located at 7850 Vista Hill Avenue, San Diego, California; excluding all other employees, professional employees, Registered Nurses, Recreational Therapists, Occupational Therapists, manageri- al employees, Department Heads, guards and supervisors as defined in the Act. 2. The certification On August 5, 1981, a majority of the employees of Respondent in said units, in secret-ballot elec- tions conducted under the supervision of the Re- gional Director for Region 21, 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 units on June 3, 1982, and the Union continues to be such exclusive representative within the mean- ing of Section 9(a) of the Act. 766 MESA VISTA HOSPITAL B. The Request To Bargain and Respondent's Refusal Commencing on or about June 7, 1982, and at all times thereafter, the Union has requested Respond- ent to bargain collectively with it as the exclusive collective-bargaining representative of all the em- ployees in the above-described units. Commencing on or about June 21, 1982, and continuing at all times thereafter to date, Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive representative for collective bargaining of all employees in said units. Accordingly, we find that Respondent has, since June 21, 1982, and at all times thereafter, refused to bargain collectively with the Union as the exclu- sive representative of the employees in the appro- priate units, and that, by such refusal, Respondent has engaged in and is engaging in unfair labor prac- tices 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- ation described in section 1, above, have a close, in- timate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. 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 units, and, if an understanding is reached, embody such understanding in a signed agreement. In order to ensure that the employees in the ap- propriate units will be accorded the services of their selected bargaining agent for the period pro- vided by law, we shall construe the initial period of certification as beginning on the date Respondent commences to bargain in good faith with the Union as the recognized bargaining representative in the appropriate units. See Mar-Jac Poultry Com- pany, Inc., 136 NLRB 785 (1962); Commerce Com- pany 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. Vista Hill Foundation, d/b/a Mesa Vista Hos- pital, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Office and Professional Employees Interna- tional Union, Local 30, AFL-CIO, CLC, is a labor organization within the meaning of Section 2(5) of the Act. 3. The following constitute appropriate units for the purpose of collective bargaining within the meaning of Section 9(b) of the Act: All full-time, regular part-time, and regularly- scheduled on-call Registered Nurses employed by Respondent at its facility located at 7850 Vista Hill Avenue, San Diego, California; ex- cluding all other employees, non-professional employees (service and maintenance employ- ees, technical employees, and business office clerical employees), managerial employees. Nursing Coordinators, Head Nurses, Depart- ment Heads, guards and supervisors as defined in the Act. All full-time, regular part-time, and regularly- scheduled on-call non-professional employees, including service and maintenance employees (including recreational therapist aides and oc- cupational therapist aides), technical employ- ees and business office clerical employees em- ployed by Respondent at its facility located at 7850 Vista Hill Avenue, San Diego, California; excluding all other employees, professional employees, Registered Nurses, Recreational Therapists, Occupational Therapists, manageri- al employees, Department Heads, guards and supervisors as defined in the Act. 4. Since June 3, 1982, the above-named labor or- ganization has been and now is the certified and ex- clusive representative of all employees in the afore- said appropriate units for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about June 21, 1982, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employees of Respondent in the appropriate units, 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, 767 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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)(l) 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, Vista Hill Foundation, d/b/a Mesa Vista Hospital, San Diego, California, its officers, agents, succes- sors, and assigns, shall: I. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Office and Profes- sional Employees International Union, Local 30, AFL-CIO, CLC, as the exclusive bargaining repre- sentative of its employees in the following appro- priate units: All full-time, regular part-time, and regularly- scheduled on-call Registered Nurses employed by Respondent at its facility located at 7850 Vista Hill Avenue, San Diego, California; ex- cluding all other employees, non-professional employees (service and maintenance employ- ees, technical employees, and business office clerical employees), managerial employees, Nursing Coordinators, Head Nurses, Depart- ment Heads, guards and supervisors as defined in the Act. All full-time, regular part-time, and regularly- scheduled on-call non-professional employees, including service and maintenance employees (including recreational therapist aides and oc- cupational therapist aides), technical employ- ees and business office clerical employees em- ployed by Respondent at its facility located at 7850 Vista Hill Avenue, San Diego, California; excluding all other employees, professional employees, Registered Nurses, Recreational Therapists, Occupational Therapists, manageri- al employees, Department Heads, 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 units 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 San Diego, California, facility copies of the attached notice marked "Appendix." 4 Copies of said notice, on forms provided by the Regional Director for Region 21, 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- spondent to ensure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 21, in writing, within 20 days from the date of this Order, what steps have been taken to comply here- with. 4 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 Office and Professional Employees Inter- national Union, Local 30, AFL-CIO, CLC, as the exclusive representative of the employees in the bargaining units 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 units 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 units are: 768 MESA VISTA HOSPITAL All full-time, regular part-time, and regular- ly-scheduled on-call Registered Nurses em- ployed by the Employer at its facility locat- ed at 7850 Vista Hill Avenue, San Diego, California; excluding all other employees, non-professional employees (service and maintenance employees, technical employ- ees, and business office clerical employees), managerial employees, Nursing Coordina- tors, Head Nurses, Department Heads, guards and supervisors as defined in the Act. All full-time, regular part-time, and regular- ly-scheduled on-call non-professional em- ployees, including service and maintenance employees (including recreational therapist aides and occupational therapist aides), tech- nical employees and business office clerical employees employed by the Employer at its facility located at 7850 Vista Hill Avenue, San Diego, California; excluding all other employees, professional employees, Regis- tered Nurses, Recreational Therapists, Occu- pational Therapists, managerial employees, Department Heads, guards and supervisors as defined in the Act. VISTA HILL FOUNDATION, D/B/A MESA VISTA HOSPITAL 769