Trinity Memorial Hospital of Cudahy, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Trinity Memorial Hospital of Cudahy, Inc. and Inter- national Union of Operating Engineers, Local #317, AFL-CIO. Case 30-CA-4375 May 23, 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY Upon a charge filed on September 30, 1977, by In- ternational Union of Operating Engineers, Local #317, AFL-CIO, herein the Union, and duly served on Trinity Memorial Hospital of Cudahy, Inc., herein called Respondent, the General Counsel of the Na- tional Labor Relations Board, by the Regional Direc- tor for Region 30, issued a complaint on November 8, 1977, 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, 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 com- plaint alleges, in substance, that on August 22, 1977, following a Board election in Case 30-RC-3004, 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 September 28, 1977, and at all times thereafter, Respondent has refused and continues 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. The complaint further alleges that Respondent vio- lated Section 8(a)(5) and (1) of the Act by unilaterally changing the starting and quitting times for mainte- nance employees and by unilaterally granting a pay increase to all unit employees without negotiation with the Union on its decision or the effect upon unit employees. Subsequently, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On November 25, 1977, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment, with attachments, submitting in effect that there are no material issues of fact to be I Official notice is taken of the record in the representation proceeding, Case 30-RC-3004, 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 Electrosyslems, 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. F.2d 91 (7th Cir. 1968): Sec. 9(d) of the NLRA, as amended. determined, and that summary judgment is appropri- ate. Subsequently, on December 14, 1977, 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 Judgment should not be granted. On January 9, 1978, Respondent filed an opposition to the Motion for Summary Judgment, with an attached affidavit, contending that questions of fact exist as to the aforesaid allegations of unilat- eral changes in the complaint and requesting that the Motion for Summary Judgment be denied. Subse- quently, Respondent filed a supplement to its opposi- tion to the Motion for Summary Judgment, attaching thereto a decision of the United States Court of Ap- peals for the Seventh Circuit. 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 opposition to the Motion for Summary Judgment, Respondent denies the Union's certification, denies the Union's request and Respondent's refusal to bargain, and de- nies that it has refused to bargain in good faith with the Union by unilaterally changing the starting and quitting times for maintenance employees and by uni- laterally granting a pay increase to all unit employees without negotiation with the Union on its decision or the effect upon unit employees. We grant summary judgment with respect to the allegations of the com- plaint that Respondent refused to bargain with the Union as the exclusive collective-bargaining repre- sentative of all the employees in the appropriate bar- gaining unit. We find, however, that genuine issues of material fact exist as to the allegations of the com- plaint that Respondent violated the Act by unilater- ally changing the unit employees' shift schedule and by unilaterally granting them pay increases. We therefore remand those issues to the Regional Direc- tor for hearing thereon. Respondent refuses to bargain with the Union on the ground that the unit found by the Board in the underlying representation proceeding is inappropriate for collective-bargaining purposes in the health care field. Respondent relies on the decision of the United States Court of Appeals for the Seventh Circuit, N.L.R.B. v. West Suburban Hospital, 570 F.2d 213 (1978). The maintenance and engineering employees in- volved herein were found by the Board to have suffi- ciently distinct community of interest to constitute a 242 NLRB No. 52 442 TRINITY MEMORIAL HOSPITAL OF CUDAHY separate bargaining unit. In making maintenance unit determinations in the health care industry, a majority of the Board has held that the appropriateness of such units is to be determined on the basis of the test set forth in American Cyanamid Company, 131 NLRB 909 (1961).2 That test is whether the maintenance group sought constitutes a "readily identifiable . . . group whose similarity of function and skills create a community of interest such as would warrant sepa- rate representation." Id. at 910. In the underlying rep- resentation case (230 NLRB 855, 856-857 (1977)), the Board found that the unit of maintenance and engi- neering employees was appropriate because they: are more highly skilled, receive higher wages than service employees, are separately super- vised, and do not normally interchange with other employees. While maintenance employees necessarily have some contact with other hospi- tal employees during the course of their work- day, such contact is not meaningful, sustained contact. There is no functional integration of their duties with those of other hospital employ- ees except perhaps for the limited exceptions noted. 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 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 proceeding concerning its refusal to bargain with the Union as the exclusive collective-bargaining representative of all employees in the appropriate unit were or could have been litigated in the prior representation pro- ceeding, and Respondent does not offer to adduce at 2 This position has recently been reaffirmed by the Board in Allegheny General Hospital, 239 NLRB 872 (1978). Among other things, Allegheny sought to remove any ambiguity that may have arisen from the Board's dismissal of maintenance unit requests under circumstances in which a ma- jority of the Board panel dismissing the petition applied a different test but constituted a Board majority solely by virtue of the fact that one Board Member, applying the American Cyanamid test, concluded that the test had not been [met] in that particular case. See, e.g., Allegheny's discussion of the decision of the United States Court of Appeals for the Third Circuit in St. Vincent's Hospital v. N.LR.B.. 567 F.2d 588, fn. 8 (1977). Allegheny also addressed, at fn. 69, West Suburban, supra. As is evident from Allegheny. the consistency that is desired in the area of unit determinations is a consistency of approach, not a consistency of results. The Board's role in making unit determinations must reflect the obvious fact that no two institutions are precisely the same, whether health care institution or not. Indeed, that on the basis of different facts the Board reaches different unit determinations is persuasive evidence that the Board does not, as the West Suburban court feared, pay lip service to the congressional admonition, as expressed in the legislative history of the health care amendments, against unit proliferation in the industry, just as the Board does not pay lip service to the congressional command, as expressed in the statute itself, to determine in each case the unit appropriate for bargaining. Member Jenkins does not rely on Allegheny for the result reached here. ISee Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146. 162 (1941): Rules and Regulations of the Board, Sec. 102.67(f) and Sec. 102.69(c) a hearing any newly discovered or previously unavail- able evidence, nor does it allege that any special cir- cumstances exist herein which would require the Board to reexamine the decision made in the repre- sentation proceeding. We therefore find that Respon- dent has not raised any issue as to these allegations which is properly litigable in this unfair labor practice proceeding. Accordingly, we grant the Motion for Summary Judgment with respect to Respondent's re- fusal to bargain with the Union as the exclusive col- lective-bargaining representative of all the employees in the appropriate bargaining unit. In its opposition to the Motion for Summary Judg- ment and the attached affidavit, Respondent contends that its unilateral wage increase, effective October 2, 1977, did not violate the Act because a wage study had begun in June 1977; that on July 13, 1977, it was first notified that a representation election would be held; and that prior to such notification the peti- tioned-for unit was held to be inappropriate. Respon- dent also contends that the alleged unilateral change in the starting and quitting times for maintenance employees was not a change but a return to a prior shift schedule following an unsuccessful experiment with another schedule which had been requested by employees. As it appears that genuine issues of material fact exist as to Respondent's unilateral actions herein, we remand the instant case to the Regional Director for the sole purpose of holding a hearing before an ad- ministrative law judge to determine whether the al- leged unilateral wage increase and the alleged unilat- eral change in the starting and quitting times for maintenance employees were unfair labor practices as alleged in the complaint. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent, a Wisconsin corporation, is engaged in the operation of a nonprofit hospital at its Cudahy, Wisconsin, location. During the past calendar year, a representative period, Respondent derived gross rev- enue in excess of $250,000 in the course and conduct of its business. During the same period Respondent purchased and received goods and materials valued in excess of $50,000 directly from suppliers located outside the State of Wisconsin. 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. 443 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE LABOR ORGANIZATION INVOLVED International Union of Operating Engineers, Local 317, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. Ill. THE UNFAIR LABOR PRACTICES 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: All maintenance and engineering employees employed by Respondent, excluding all other employees, professional employees, guards and supervisors as defined in the Act. 2. The certification On August 12, 1977, a majority of the employees of Respondent in said unit, in a secret-ballot election conducted under the supervision of the Regional Di- rector for Region 30, 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 August 22, 1977, and the Union contin- ues 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 August 23, 1977, 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. Commencing on or about Sep- tember 28, 1977, and continuing at all times there- after 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 September 28, 1977, 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 (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 operations described in section 1, 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. 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 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 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: CONCLUSIONS OF LAW 1. Trinity Memorial Hospital of Cudahy, Inc., is an employer engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act. 2. International Union of Operating Engineers, Local 317, AFL-CIO, is a labor organization wthin the meaning of Section 2(5) of the Act. 3. All maintenance and engineering employees em- ployed by Respondent, excluding all other employees, professional employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since August 22, 1977, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the afore- said appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 444 TRINITY MEMORIAL HOSPITAL OF CUDAHY 5. By refusing on or about September 28, 1977, 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 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 mean- ing 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 Rela- tions Board hereby orders that the Respondent, Trin- ity Memorial Hospital of Cudahy, Inc., Cudahy, Wis- consin, 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 International Union of Operating Engineers, Local 317, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All maintenance and engineering employees employed by the Respondent, excluding all other employees, professional employees, guards and supervisors 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 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 understand- ing is reached, embody such understanding in a signed agreement. (b) Post at its Cudahy, Wisconsin, facility copies of the attached notice marked "Appendix." 4 Copies of I 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 b 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." said notice, on forms provided by the Regional Direc- tor for Region 30, after being duly signed by Respon- dent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said no- tices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 30, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. IT IS FURTHER ORDERED that the instant proceeding be, and it hereby is, remanded to the Regional Direc- tor for Region 30 for the sole purpose of holding a hearing before an administrative law judge to deter- mine whether or not the alleged unilateral wage in- crease and the alleged unilateral change in the start- ing and quitting times for maintenance employees were unfair labor practices as alleged in the com- plaint. 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 Inter- national Union of Operating Engineers, Local #317, 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 agreement. The bargaining unit is: All maintenance and engineering employees employed by the Employer, excluding all other employees, professional employees, guards and supervisors as defined in the Act. TRINITY MEMORIAL HOSPITAL OF CUDAHY, INC. 445