Melrose-Wakefield Hospital Assn., Inc.

MELROSE-WAKEFIELD HOSPITAL ASSOCIATION Melrose-Wakefield Hospital Association, Inc. and Massachusetts Hospital Workers, Local 880, Ser- vice Employees International Union, AFL-CIO. Case I-CA-15279 May 10, 1979 DECISION AND ORDER BY MEMBERS PENELLO, MURPHY, AND TRUESDALE Upon a charge, an amended charge, and a second amended charge filed on November 30, December 19. and December 27. 1978, respectively, by Massachu- setts Hospital Workers, Local 880, Service Employees International Union, AFL-CIO, herein called the Union, and duly served on Melrose-Wakefield Hospi- tal Association, Inc., herein called Respondent, the General Counsel of the National Labor Relations Board, by the Acting Regional Director for Region 1, issued a complaint on January 4, 1979, 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, 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 com- plaint alleges in substance that on November 17, 1978, following a Board election in Case 1-RC- 15822, the Union was duly certified as the exclusive collective-bargaining representative of Respondent's employees in the unit found appropriate,' and that, commencing on or about November 29, 1978, and at all times thereafter, Respondent has refused, and con- tinues to date to refuse, to bargain collectively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On January 14, 1979, Respondent filed its answer to the complaint, admitting in part, and deny- ing in part, the allegations in the complaint. Thus, Respondent admitted, inter alia, that on November 29, 1978, the Union requested it to bargain collec- tively and that it did refuse and continued to refuse to bargain with the Union. On February 15, 1979, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on March 2, Official notice is taken of the record in the representation proceeding, Case I-RC-15822, as the term "record" is defined in Secs. 102.68 and 10 2.69(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); Follerr Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968): Sec. 9(d) of the NLRA, as amended. 1979, the Board issued an order transferring the pro- ceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respondent there- after 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 response to the Notice To Show Cause, Respondent admits the re- quest and refusal to bargain but in substance attacks the Union's certification on the basis of its election objections in the underlying representation proceed- ing. Counsel for General Counsel asserts that Re- spondent's answer admits the factual allegations of the complaint and contends that Respondent seeks to relitigate the issues heretofore determined in the rep- resentation case. We agree. Our review of the record, including that of the un- derlying representation proceeding, Case I-RC- 15822, reveals that an election was conducted on Sep- tember 14, 1978, pursuant to a Decision and Direc- tion of Election. The tally of ballots shows that of approximately 208 eligible voters, 176 cast valid bal- lots, of which 93 were for and 76 were against the Union, and 7 ballots were challenged, an insufficient number to affect the results. On September 21, 1978, Respondent filed objections to the conduct of the election. On November 17, 1978, after an investiga- tion of the objections, the Regional Director issued a Supplemental Decision in which he found no merit in Respondent's objections and overruled them in their entirety and certified the Union as the exclusive rep- resentative of all the employees in the unit. On De- cember 11, 1978, Respondent filed a request for re- view of the Regional Director's Supplemental Decision, and on January 4, 1979, the Union filed a response thereto. On January 24, 1979, the Board is- sued a denial of Respondent's request for review, as it raised no substantial issues warranting review. It thus appears that Respondent is attempting in this proceeding to relitigate issues fully litigated and fi- nally determined in the representation proceeding. It is well settled that in the absence of newly dis- covered or previously unavailable evidence or special circumstances, a respondent in a proceeding alleging 2 Member Penello concurred in denying review of the Regional Director's Supplemental Decision, for the reasons set forth in Shopping Kart Food Mar- ket, Inc.. 228 NLRB 1311 (1977); see his dissent in General Knit of California, Inc., 239 NLRB 619 (1978). 242 NLRB No. 28 117 I)l( CISIONS OF NATIONAL LABOR RELATIONS BOARD a violation of Section 8(a)(5) is not entitled to reliti- gate issues which were or could have been litigated in a prior representation proceeding.) All issues raised by Respondent in this proceeding were or could have been litigated in the prior repre- sentation proceeding, and Respondent does not offer to adduce at a hearing any newly discovered or previ- ously unavailable evidence, nor does it allege that any special circumstances exist herein which would re- quire the Board to reexamine the decision made in the representation proceeding. We therefore find that Respondent has not raised any issue which is prop- erly 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 FA('I' 1. lIFE BUSINE!SS ()OF RSPONDINT Melrose-Wakefield Hospital Association, Inc., is a Massachusetts corporation and is engaged in the op- eration of a nonprofit health care delivery facility in Melrose, Massachusetts. In the course and conduct of its business, Respondent annually causes goods and materials with a value in excess of $50,000 to be pur- chased and transported in interstate commerce from and through the various States of the United States other than the ommonwealth of Massachusetts. Further, Respondent annually receives revenues in excess of $1 million. We find, on the basis of the foregoing, that Respon- dent 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. 11. TE LABOR OR(iANIZAIION INVOI.VAI) Massachusetts Hospital Workers, Local 880, Ser- vice Employees International Union, AFL CIO, is a labor organization within the meaning of Section 2(5) of the Act. 11l. Tlil UNFAIR I.ABOR PRA(iH(tES A. The Representation Proceeding 1. The unit The following employees of Respondent constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: ISee Pittsburgh Plate (Gla (o. v N.L.RR.. 313 U.S. 146. 162 (1941); Rules and Regulations of the Board. Secs. 102.67(f) and 102 69(c). All licensed practical nurses, patient care techni- cians, maternity technicians, operating and emergency room technicians, EEG and EKG technicians, laboratory technicians, phleboto- mists, X-ray technicians, respiratory therapy technicians and psychiatric counselors, but ex- cluding all registered nurses, admitting officers, service and maintenance unit employees, profes- sional employees, business office clerical employ- ees, confidential employees, guards and all su- pervisors as defined in the Act. 2. The certification On September 14, 1978, a majority of the employ- ees of Respondent in said unit, in a secret-ballot elec- tion conducted under the supervision of the Regional Director for Region , designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the col- lective-bargaining representative of the employees in said unit on November 17, 1978, and the Union con- tinues to be such exclusive representative within the meaning of' Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refu.sal Commencing on or about November 29, 1978, and at all times thereafter, the Union has requested Re- spondent to bargain collectively with it as the exclu- sive collective-bargaining representative of all the em- ployees in the above-described unit. Commencing on or about November 29, 1978, 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 unit. Accordingly, we find that respondent has, since November 29, 1978, 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, Respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8(a)(5) and (I) of the Act. IV. TFl EFFE(I' ()F ITIE UNFAIR ABOR PRA('TICES UPON ('COMMER('E The activities of Respondent set forth in section III, above, occurring in connection with its operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. I 118 MELROSE-WAKEFIELD HO()SPITAL ASSOCIATION V. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the mean- ing 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 ap- propriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. In order to insure that the employees in the appro- priate unit will be accorded the services of their se- lected bargaining agent for the period provided by law, we shall construe the initial period of certifica- tion as beginning on the date Respondent commences to bargain in good faith with the Union as the recog- nized bargaining representative in the appropriate unit. See Mar-Jac Poultry Compan., 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 Con- struction 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: Co)NCiLU!SIONS ()F LAW' 1. Melrose-Wakefield Hospital Association. Inc., is an employer engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act. 2. Massachusetts Hospital Workers, Local 880, Service Employees International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All licensed practical nurses, patient care techni- cians, maternity technicians, operating and emer- gency room technicians, EEG and EKG technicians, laboratory technicians, phlebotomists, X-ray techni- cians, respiratory therapy technicians, and psychiatric counselors, but excluding all registered nurses, admit- ting officers, service and maintenance unit employees. professional employees, business office clerical em- ployees, confidential employees, guards, and all su- pervisors as defined in the Act, constitute a unit ap- propriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since November 17, 1978, the above-named la- bor 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 November 29, 1978, and at all times thereafter, to bargain collectively with the above-named labor organization as the ex- clusive 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, Respondent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing. employees in the exercise of the rights guaranteed them in Sec- tion 7 of the Act. and thereby has engaged in and is engaging in unfaiir labor practices within the meaning of Section 8(a)( ) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. ORI)ER Pursuant to Section 10(c) of' the National Labor Relations Act, as amended, the National abor Rela- tions Board hereby orders that Respondent. Melrose- Wakefield Hospital Association, Inc., Melrose, Mas- sachusetts. 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 con- ditions of employment with Massachusetts Hospital Workers, Local 880. Service Employees International Union. AFL CIO. as the exclusive bargaining repre- sentative of' its employees in the tfllowing appropri- ate unit: All licensed practical nurses, patient care techni- cians, maternity technicians. operating and emergency room technicians. EFIG and EKG technicians, laboratory technicians. phleboto- mists, X-ray technicians, respirators therapy technicians and psychiatric counselors, but ex- cluding all registered nurses, admitting officers, service and maintenance unit employees, profes- sional employees, business office clerical employ- ees, confidential employees, guards and all su- pervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmnati e 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 understand- ing is reached. embody such understanding in a signed agreement. (b) Post at its facility in Melrose. Massachusetts, 119 DECISIONS OF NATIONAL LABOR RELATIONS BOARD copies of the attached notice marked "Appendix."4 Copies of said notice, on forms provided by the Re- gional Director for Region , 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 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. 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 Pursuant 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 Mas- sachusetts Hospital Workers, Local 880, Service Employees International Union, 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 employees 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 representa- tive of all employees in the bargaining unit de- scribed below, with respect to rates of pay, wages, hours, and other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agree- ment. The bargaining unit is: All licensed practical nurses, patient care tech- nicians, maternity technicians, operating and emergency room technicians, EEG and EKG technicians, laboratory technicians, phleboto- mists, X-ray technicians, respiratory therapy technicians and psychiatric counselors, but ex- cluding all registered nurses, admitting offi- cers, service and maintenance unit employees, professional employees, business office clerical employees, confidential employees, guards and all supervisors as defined in the Act. MELROSE-WAKEFIELD HOSPITAL ASSOCI- ATION, INC. 120