Medical Center of Beaver County, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Medical Center of Beaver County, Inc. and District 1199P, National Union of Hospital and Health Care Employees, RWDSU, AFL-CIO. Case 6- CA- 15480 September 29, 1982 DECISION AND ORDER BY CHAIRMAN VAN DE WATER AND MEMBERS JENKINS AND HUNTER Upon a charge filed on May 14, 1982, by District 1199P, National Union of Hospital and Health Care Employees, RWDSU, AFL-CIO, herein called the Union, and duly served on Medical Center of Beaver County, Inc., herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 6, issued a complaint on June 10, 1982, against Re- spondent, 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 April 30, 1982, following a Board election in Case 6-RC- 8976, the Union was duly certified as the exclusive collective-bargaining representative of Respond- ent's employees in the unit found appropriate;1 and that, commencing on or about May 10, 1982, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining repre- sentative, although the Union has requested and is requesting it to do so. On June 21, 1982, Respond- ent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On June 25, 1982, counsel for the General Coun- sel filed directly with the Board a Motion for Sum- mary Judgment. Subsequently, on July 1, 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 Summary Judg- ment should not be granted. Respondent thereafter filed a response to the Notice To Show Cause. ()Official notice is taken of the record in the representation proceed- ing. Ca;se 6 RC K976 as the term "record" is defined in Ses. 102 68 and 102.6 9 (g) of the ieiard's Rules and Regulations. Series 8. as amended. See LI' I Electrrm.vow s. Inc, 166 NLRB 938 (1967), enfd. 388 F.2d 683 (41h Cir 1968): (oldeln Age l ever(uge (Co., 67 NI RB 151 (1967), enfd. 415 F 2d 26 (5th Cir 1969), Inteteip Cio. v . Peonl'o. 26 F-.Supp. 573 (D.C Va. 1967); I/)lihrt C(orp. 164 NIRB 378 (1967). enfd 397 F.2d 91 (7th Cir 1h8):. Sc.c 9 d) of Ihe NI RA. ais allended 264 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 and in its opposi- tion to the Motion for Summary Judgment, Re- spondent contends that the Board's certification of the Union was invalid. Respondent asserts that the Board erred in overruling its objections to the elec- tion and that the Board failed to consider and to articulate the basis for overruling many of these objections. Review of the record herein, including the record in Case 6-RC-8976, reveals that in the elec- tion conducted on May 15, 1981, there were 143 votes cast for, and 133 votes cast against, the Union. There were nine challenged ballots, an in- sufficient number to affect the results of the elec- tion. Respondent filed timely objections to the elec- tion alleging, inter alia, that the Union engaged in electioneering in the voting area, that the Union openly maintained a tally or list of voters, that the Union made illegal statements and promises con- cerning waiver of initiation fees, and that the elec- tion was improperly influenced by the interference of third parties. Following an investigation, the Re- gional Director on June 3, 1981, issued an order re- quiring that a hearing be held on Respondent's ob- jections. After the hearing, the Hearing Officer recommended that all of Respondent's objections be overruled and the election not be set aside. On April 30, 1982, the Board adopted the Hearing Of- ficer's report, and certified the Union. It thus ap- pears that Respondent is attempting to raise herein issues which were raised and determined in the un- derlying representation case. We find no merit in Respondent's contention that the Board failed to consider and to articulate the basis for denying several of its objections in its de- cision in the representation case, 261 NLRB 678 (1982). In that case the Board specifically adopted the Hearing Officer's recommendations and his findings in support thereof. The decision also dis- cussed in detail the Board's reasons for overruling one objection, and included several explanatory footnotes relating to other objections. To the extent Respondent asserts that the Board's decision together with the Hearing Officer's report set forth no valid basis for dismissing its objections, we find Respondent's contention to be an indirect attempt to relitigate the underlying representation case. 256 MEDICAL CENTER OF BEAVER COUNTY 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.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. 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, and has been at all times material herein, a Pennsylvania nonprofit corporation with its principal facility located in Brighton Township, Pennsylvania, where it has been engaged in the op- eration of a health care institution. During the 12- month period ending May 31, 1982, Respondent, in the course and conduct of its business operations, received gross revenues in excess of $250,000. During the same 12-month period, Respondent pur- chased goods and materials valued in excess of $50,000 from points located directly outside the Commonwealth of Pennsylvania for use at its Brighton Township, Pennsylvania, facility. 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 INVOL VED District 1199P, National Union of Hospital and Health Care Employees, RWDSU, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. ' See Pittrhlrgh Plare Gl,s C(;, v .\. RR . A I I! S 146. It2 (19q41); Rules and Regulation's of the Hlard, Secs 102 67(0) and 102.h 0 (c) III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding i. 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 licensed practical nurses and technicians, including Au- topsy Technicians, Bio-med Equipment Tech- nicians, Cytologists, LPNs, Medical Lab Tech- nicians, Nuclear Medical Technologists, Oper- ating Room Technicians, Physical Therapy Assistants, Physical Therapy Technicians, Ra- diology Technologists, Radiation Therapy Technologists, Respiratory Technicians, and Ultra-Sound Technologists; excluding all other employees, office clerical employees, EEG and EKG Technicians, confidential employees, pharmacy technicians, sterilization process technicians, service and maintenance employ- ees, medical laboratory technologists, regis- tered nurses and other professional employees, guards and supervisors as defined in the Act.3 2. The certification On May 15, 1981, a majority of the employees of Respondent in said unit, in a secret-ballot election conducted under the supervisio'n of the Regional Director for Region 6, 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 April 30, 1982, and the Union continues to be such exclusive representative within the meaning of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about May 4, 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 unit. Commencing on or about May 10, 1982, and continuing at all times thereafter to date, Respondent has refused, and continues to refuse, to recognize and bargain a In its answer to the complaint. Respondent denies that the ahose-de- scribed unit is appropriapr te for the puilpo,e of cof llcli hrgainilig Within the mearning of Sec, q(h) of tlhe cUt V'e not. hosxecer. that i Ithe un- derlying representation case tile Roard funds ai ,tipulilatcd h, the parlcs,. that Ihis unit is ipproprl:ate 257 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with the Union as the exclusive representative for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since May 10, 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 unit, 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- 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 Respcndent 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: CONCI.USIONS OF lAW 1. Medical Center of Beaver County, Inc., is an employer engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act. 2. District 1199P, National Union of Hospital and Health Care Employees, RWDSU, AFL-CIO, is a labor organization within the meaning of Sec- tion 2(5) of the Act. 3. All full-time and regular part-time licensed practical nurses and technicians, including Autopsy Technicians, Bio-med Equipment Technicians, Cy- tologists, LPNs, Medical Lab Technicians, Nuclear Medical Technologists, Operating Room Techni- cians, Physical Therapy Assistants, Physical Ther- apy Technicians, Radiology Technologists, Radi- ation Therapy Technologists, Respiratory Techni- cians, and Ultra-Sound Technologists; excluding all other employees, office clerical employees, EEG and EKG Technicians, confidential employees, pharmacy technicians, sterilization process techni- cians, service and maintenance employees, medical laboratory technologists, registered nurses and other professional employees, guards and supervi- sors as defined in the Act, constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since April 30, 1982, 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 May 10, 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 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, Medical Center of Beaver County, Inc., Brighton Township, Pennsylvania, its officers, agents, suc- cessors, 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 District 1199P, Na- tional Union of Hospital and Health Care Employ- ees, RWDSU, AFL-CIO, as the exclusive bargain- 258 MEDICAL CENTER OF BEAVER COUNTIY ing representative of its employees in the following appropriate unit: All full-time and regular part-time licensed practical nurses and technicians, including Au- topsy Technicians, Bio-med Equipment Tech- nicians, Cytologists, LPNs, Medical Lab Tech- nicans, Nuclear Medical Technologists, Oper- ating Room Technicians, Physical Therapy Assistants, Physical Therapy Technicians, Ra- diology Technologists, Radiation Therapy Technologists, Respiratory Technicians, and Ultra-Sound Technologists; excluding all other employees, office clerical employees, EEG and EKG Technicians, confidential employees, pharmacy technicians, sterilization process technicians, service and maintenance employ- ees, medical laboratory technologists, regis- tered nurses and other professional employees, guards and supervisors and 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 its Brighton Township, Pennsylvania, facility copies of the attached notice marked "Ap- pendix." 4 Copies of said notice, on forms provided by the Regional Director for Region 6, 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 insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 6, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. MEMBER HUNTER, dissenting: I am unable to join my colleagues in granting the General Counsel's Motion for Summary Judgment. I In the event that this Order is enforced h) a Judgment of a United States Court of Appeals, the ',ords in the notice reading "Posted by Order of the National L.ahor Relations rBoard" shall read "Posted Pursu- ant to a Judgment of the United Stales Court of Appeals Enforcing an Order of Ihe Natillonal L.ahor Relations Board" As I indicated in my dissenting opinion in the un- derlying representation proceeding, 5 Respondent's Objection 2, which alleged that the Union's agents had openly kept and used a tally of voters during the election, clearly had merit and, therefore, a cer- tification of representation should not have been issued. As that certification is the basis for finding Respondent's refusal to bargain violated the Act, I am unable to join in that finding and I respectfully dissent. 261 NLRB 678 (19821 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WIT L NOT refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with District 1199P, National Union of Hospi- tal and Health Care Employees, RWDSU, AFL-CIO, as the exclusive 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 licensed practical nurses and technicians, including Autopsy Technicians, Bio-med Equipment Technicians, Cytologists, LPNs, Medical Lab Technicians, Physical Therapy Assis- tants, Physical Therapy Technicians, Radiol- ogy Technologists, Radiation Therapy Technologists, Respiratory Technicians, and Ultra-Sound Technologists; excluding all other employees, office clerical employees, EEG and EKG Technicians, confidential employees, pharmacy technicians, steriliza- tion process technicians, service and mainte- nance employees, medical laboratory tech- nologists, registered nurses and other profes- 259 260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sional employees, guards and supervisors as defined in the Act. MEDICAL CENTER OF BEAVER COUNTY, INC.