Doctors Osteopathic Hospital

DOCTORS OSTEOPATHIC HOSPITAL Doctors Osteopathic Hospital and American Feder- ation of State, County and Municipal Employees, District Council 85, AFL-CIO. Case 6-CA-9148 May 23, 1979 DECISION AND ORDER BY MEMBERS PENELLO, MURPHY, AND TRUESDALE Upon a charge filed on April 7, 1976, by American Federation of State, County and Municipal Employ- ees, District Council 85, AFL-CIO, herein called the Union, and duly served on Doctors Osteopathic Hos- pital, herein called Respondent, the General Counsel of the National Labor Relations Board, by the Re- gional Director for Region 6, issued a complaint and notice of hearing on August 31, 1978, 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 January 17, 1974, following an election conducted in accordance with the procedures of the Pennsylvania Labor Relations Board (herein called PLRB), the Union was duly cer- tified as the exclusive collective-bargaining represent- ative of Respondent's employees in the unit found appropriate; and that, commencing on or about Au- gust 25, 1974, and at all times thereafter, including April 5, 1976, December 28, 1977, and July 21, 1978, Respondent has refused and continues to date to re- fuse to bargain collectively with the Union as the ex- clusive bargaining representative, although the Union has requested and is requesting it to do so. On Sep- tember 29, 1978, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On November 16, 1978, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on November 29, 1978, 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 an opposition to General Counsel's Motion for Summary Judgment and a Cross-Motion for Sum- mary Judgment. Charging Party filed a memorandum in support of General Counsel's motion, and General Counsel filed a response to Respondent's Cross-Mo- tion for Summary Judgment and opposition to Gen- eral Counsel's motion. 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 General Counsel's Motion for Summary Judgment and Respondent's Cross-Motion for Summary Judgment In its Cross-Motion for Summary Judgment and statement in opposition to General Counsel's Motion for Summary Judgment, Respondent argues, for rea- sons noted below, that the Board should not extend comity to the certification of the Union issued by the PLRB but should instead grant Respondent's Cross- Motion for Summary Judgment. On the other hand, the General Counsel argues that the Board should extend comity to the certification issued by the PLRB and grant his summary judgment request since mat- ters relating to the election have been previously re- solved by the PLRB, and the PLRB's resolution of these matters, through application of its own election procedures, comports with due process and effectu- ates the policies of the Act. A careful review of the record reveals the follow- ing: The Union petitioned the PLRB for an election on February 28, 1973, in a unit of all professional and nonprofessional employees at the hospital. On March 26 and 27, 1973, the PLRB conducted a hearing on the Union's petition. As found by the PLRB in its order and notice of election, which issued on May 29, 1973, the parties stipulated that a hospitalwide unit comprised of all professional and nonprofessional em- ployees was appropriate for purposes of collective bargaining. However, the supervisory status of eight head nurses was disputed. The PLRB found them to be supervisors, ineligible to vote, and directed that a secret-ballot representation election be held on June 13, 1973, with professional employees in the unit being given an opportunity to vote on whether they wished to be included in a unit with nonprofessionals. At the secret-ballot election on June 13 a majority of the professionals chose to be included in the unit with nonprofessionals. Counting the ballots of both the professionals and nonprofessionals, there were 125 votes for the Union, 100 votes for no representa- tion, and 36 challenged ballots, a sufficient number to affect the result. On July 21, 1973, the PLRB held a hearing to de- termine the validity of the challenged ballots. Follow- ing the hearing, the PLRB issued a Nisi Order of Cer- tification on October 18, 1973, in which it found that 242 NLRB No. 65 447 DECISIONS OF NATIONAL LABOR RELATIONS BOARD two of the challenged voters were eligible and that eight were not eligible to vote. The PLRB also found that the 26 remaining challenged voters were not eli- gible since they were not on the eligibility list and, on the basis of this finding, certified the Union as the exclusive bargaining representative of the employees in the unit previously described. In the meantime on June 19, 1973, in accordance with PLRB procedures, Respondent also had filed un- fair labor practice charges against the Union and ob- jections to the election.' Respondent alleged seven specific unfair labor practices and three specific ob- jections, later reduced to three unfair labor practice charges and two objections. The PLRB conducted a hearing on these charges and objections on August 14 and 15, 1973. Thereafter, in its Nisi Order of Dis- missal, issued on October 18, 1973 (the same date as its Nisi Order of Certification), the PLRB found that Respondent had failed to substantiate the unfair la- bor practice charges and objections, and that they should be dismissed. Respondent thereafter filed ex- ceptions to the dismissal of its charges and objections. On November 20, 1973, oral argument was heard by the PLRB, and on January 17, 1974, a final order dismissing the exceptions issued. Respondent thereafter appealed the final order to the Pennsylvania Court of Common Pleas for Erie County. The Court of Common Pleas upheld the PLRB's decision and dismissed the appeal. Respon- dent then appealed to the Commonwealth Court of Pennsylvania. 2 On November 17, 1977, the common- wealth court issued an Order dismissing the appeal as moot. And, on June 23, 1978, the Supreme Court of Pennsylvania (Western District) denied Respondent's appeal of the commonwealth court's decision. In addition to the above, we take further note that in letters dated October 26, 1973; January 22, Octo- ber 10, and December 16, 1974; March 18, 1976; De- cember 9, 1977; and July 6, 1978, the Union re- quested Respondent to bargain with it in the unit found appropriate, but in letters dated November 15, 1973; April 15, 1976; December 28, 1977; and July 21, 1978; Respondent refused these requests.3 In re- ' Under PLRB procedure complaints about alleged preelection miscon- duct are denominated "unfair labor practices," while complaints pertaining directly to the conduct of the election itself are denominated "objections." 2 On November 20, 1975, the commonwealth court issued an opinion dis- missing the appeal as untimely filed. Respondent appealed this dismissal to the Pennsylvania Supreme Court which, on July 8, 1977, reversed the com- monwealth court's decision that the appeal was untimely and remanded the case for reconsideration of the merits of the initial appeal. In its answer to the complaint, Respondent generally denied the allega- tions of the complaint relating to the various PLRB and Pennsylvania court proceedings noted above and also generally denied the complaint allegations respecting the various requests to bargain and the refusals. Respondent, however, has not disputed the authenticity and the receipt of the attach- ments to the General Counsel's Motion for Summary Judgment which estab- sponse to certain of these refusals to bargain, the Union, on April 7, 1976, filed an unfair labor practice charge with the Board, alleging that Respondent's re- fusal to bargain was in violation of Section 8(a)(5) and (I) of the Act.4 On May 26, 1976, the Regional Director for Region 6 notified the parties that action on the Union's charge was being deferred until the conclusion of the PLRB proceedings before the Penn- sylvania courts. Upon the conclusion of those pro- ceedings, the Regional Director, on August 31, 1978, issued the instant complaint. After careful consideration and review of the rec- ord and of the arguments of the respective parties, we have decided to accord comity to the PLRB certifica- tion, and, therefore, to grant the General Counsel's Motion for Summary Judgment and to deny Respon- dent's Cross-Motion for Summary Judgment. Under our prior decisions, we will accord comity to a state certification where "the state proceedings reflect the true desires of the affected employees, election irregu- larities are not involved, and there has been no sub- stantial deviation from due process requirements."' We find that the PLRB certification has met these standards in the instant case. At the outset, we note that in this case while Re- spondent denied the appropriateness of the bargain- ing unit in its answer to the complaint, it has not raised the issue in its response to the Motion for Sum- mary Judgment. In any event, we accord comity to the PLRB's unit determination. 6 lish the fact of these state proceedings and the various requests and refusals to bargain. We have taken official notice of the state proceedings. Duquesne Electric and Manufacturing Company, 212 NLRB 142 (1974). We note also the various requests and refusals to bargain. Otis Hospiral, Inc., 226 NLRB 1383 (1976). ' on August 25, 1974, Public Law 93-360, 88 Stat. 395., had become effec- tive and had expanded the coverage of the National Labor Relations Act to include nonprofit health care institutions. 5Allegheny General Hospital, 230 NLRB 954, 955 (1977). Member Penello dissented in Allegheny General Hospital and refused to grant comity to the PLRB certification of a unit composed of the employer's maintenance de- partment employees, inasmuch as he did not believe such a unit was appro- pnate for collective bargaining. Here, however, he joins his colleagues in extending comity because, unlike Allegheny, the appropriateness of the PLRB certified unit is not disputed. 6 Respondent stipulated at the initial PLRB hearing that the unit was appropriate. In the election professionals were given an opportunity to vote on their unit placement and a majority voted for inclusion with nonprofes- sionals. Under these circumstances, we find that the unit, which includes all of Respondent's employees is an appropriate unit for the purposes of collec- tive bargaining in the health care industry. The unit is: All full-time and part-time professional and nonprofessional employees, excluding confidential, supervisory, first-level supervisory, management level employees and guards as defined in the Act. In extending comity to the PLRB's unit determination. we are aware of the Third Circuit's decision denying enforcement of our accordance of com- ity to a PLRB certification in Memorial Hospital of Roxborough, 220 NLRB 402 (1975) (Member Penello dissenting), enforcement denied 545 F.2d 351 (3d Cir. 1976), supplemental decision 231 NLRB 419 (1977). We find Rox- borough inapposite to the instant case, however, since there the appropriate unit was at issue before the PLRB, while in this case it was not: the unit is presumptively appropriate under the Act; and the unit placement of profes- sionals satisfies the first proviso to Sec. 9(b) of the Act. 448 DOCTORS OSTEOPATHIC HOSPITAL In its Cross-Motion for Summary Judgment, Re- spondent asserts the following contentions in support of its position: (1) The Employer was denied due process in that it was constrained by Pennsylvania law from taking any disciplinary action against ac- tive and vocal prounion solicitation by its super- visors, and therefore the Board cannot extend comity to the PLRB's certification. (2) Recognition of the PLRB certification would represent a substantial deviation from the Board's due process requirements since the par- ties did not enter into a final and binding agree- ment as to voter eligibility and the PLRB did not make an independent determination with respect to the eligibility date. (3) The Board cannot extend comity to the PLRB's certification since the Pennsylvania courts have ruled that the State Board did not have jurisdiction over the Employer, thereby rendering the certification null and void. With respect to the first contention, the record shows: The PLRB found that two head nurses who were first-level supervisors had campaigned in support of the Union for a time immediately preceding the elec- tion. After detailing particular incidents of campaign- ing, however, the PLRB concluded that the cam- paigning did not warrant setting aside the election since the campaign statements were neither threaten- ing nor coercive. The PLRB also concluded that there was no evidence that the supervisors had been acting as agents of the Union, a factor significant under PLRB law, since first-level supervisors may organize separately and are not considered agents of the Em- ployer.' We find that the standard used by the PLRB-with its general prohibition of supervisory campaigning which is either threatening or coercive-accords with due process and insures that the election reflected the true wishes of the employees. Moreover, like the PLRB, where supervisory conduct is not threatening or coercive, the NLRB will not automatically set aside an election because supervisors participated in the union campaign.8 ' The PLRB also noted that Respondent could have stopped the cam- paigning simply by telling the supervisors to stop. Respondent, however, argues that it could not do so since these low-level supervisors had the right to unionize. While this is so, low-level supervisors, under Pennsylvania law, may organize only in supervisory units. Thus, while the two supervisors were free to campaign among other low-level supervisors. Respondent was not required to permit them to campaign for a union for the rank and file. I See, e.g.. Rocky Mountain Bank Note Company, 230 NLRB 922 (1977); Garo Aircraft Corporation, 220 NLRB 187 (1975) With respect to the second argument which Re- spondent raises, the record shows that in its Nisi Or- der of Certification the PLRB stated that "twenty-six (26) of the thirty-six (36) ballots that were challenged were cast by employees who were not on the list of eligible voters issued by the Board with its Order and Notice of Election .... " Respondent argues that the PLRB erred when it also stated that there was a "meeting of the minds" involving voting matters, and that the eligibility list was "apparently agreed to at the hearing." Respondent further argues that PLRB's use of a census data sheet as the allegedly agreed-to eligibility list effectively precluded the PLRB from it- self determining a specified cutoff date for eligibility. It is not completely clear from Respondent's brief in support of its cross-motion whether Respondent is contending here that the PLRB erred in its basis for excluding the 26 employees because, in fact, there was no eligibility list agreed to or whether the a- greed-to list was defective in the absence of a further "written and signed" agreement to the effect that the eligibility list was final and binding. In either event, we reject Respondent's argument, since assuming, ar- guendo, that there was no list agreed to or that the list was defective, the cutoff date for eligibility would ap- parently have been, by state statute, the filing date of the petition; i.e., February 23, 1973. The 26 employ- ees who were excluded by the PLRB as not on the eligibility list were all hired after the date the petition was filed and, accordingly, were also ineligible on that basis. Respondent's argument on this point essentially raises the question whether the Board may recognize the PLRB certification where the PLRB used an eligi- bility date different from that normally used by the Board. The answer to that question in this proceeding is in the affirmative. Thus, we find nothing in the PLRB procedure for determining eligibility which is incompatible with either due-process requirements or the assuring that the election reflected the true wishes of the employees. We have repeatedly held that minor variations from our election procedures will not pre- vent us from recognizing state certifications.9 It is only where the state agency's procedure is clearl) re- pugnant to the Act that we will refuse comity.1° In accord with these considerations, we note first that nothing in the Act specifies the date for eligibility to vote in a representation election. It is true that under Board procedure the eligibility cutoff date is normally the payroll period ending immediately be- fore the date of the direction of election. This cutoff date is a matter of administrative discretion, however. It is not dictated by considerations of due process. In fact, as Respondent recognizes, the Board in certain 9See, e.g., West Indian Co., Ltd. 129 NLRB 1203 (1961). io Brookhaven Memorial Hospital, 214 NLRB 1010 (1974). 449 DECISIONS OF NATIONAL LABOR RELATIONS BOARD circumstances allows the parties to agree to a differ- ent eligibility date and to litigate the date at the hear- ing." The cutoff date used by the PLRB is compatible with due process and with assuring that the election accurately reflected the true desires of the employees. Similarly, it is not necessary for purposes of due process or in order to assume a fair election that any agreed-to eligibility list be signed by the parties. While such a procedure may substantially eliminate future litigation on eligibility questions, and therefore may be administratively desirable, the alternative method used by the PLRB-a hearing and appeal to the PLRB of eligibility questions-is sufficient to as- sure that the eligibility list includes the eligible voters. Accordingly, we find that the PLRB disposition on this issue satisfied due process and was consistent with assuring an election which would accurately re- flect the true desires of the employees. Finally, Respondent argues that the Pennsylvania Commonwealth Court's dismissal of its appeal as moot, on the basis of In re Employees of Brownsville General Hospital,'2 was a finding that the PLRB did not have jurisdiction over it during the time period in question. General Counsel, on the other hand, argues that both here and in Brownsville the finding of moot- ness was a recognition by the Pennsylvania court that exclusive jurisdiction over hospitals like Respondent, as of August 25, 1974, rested with the NLRB.' 3 We agree with the General Counsel. The finding of moot- ness, as a legal doctrine, goes to the question of the existence of a present controversy, not to the question of the PLRB's jurisdiction. Thus, mootness arises "when a determination is sought on a matter which, when rendered, cannot have any practical effect on the existing controversy."'4 While the Pennsylvania court obviously could have rendered an opinion on whether the PLRB had jurisdiction over Respondent, that decision would have been, in the court's view, superfluous, since jurisdiction was now vested in the NLRB.' The court did not, however, question the PLRB'sjurisdiction over Respondent as of the time of the election and certification. Indeed, the parties stipulated to the PLRB's jurisdiction at the hearing. Accordingly, we conclude that the PLRB certification is not void for want of jurisdiction at the time of its issuance. As an alternative to its Cross-Motion for Summary Judgment, Respondent argues that it is entitled to an evidentiary hearing to prove that: (I) prounion solici- 1l NLRB Casehandling Manual, Part Two, Representation Proceedings, sec. # 11230 (1975). 2 464 Pa. 151, 346 A.2d 260 (1975). 13 See fn. 4, supra. 14 Leonhart v. McCormick. 395 FSupp. 1073 (W.[).Pa., 1975). a1 See also Allegheny General Hospital, 230 NL.RB at 954, where the Board rejected that respondent's reliance on Brownsville for a similar argument. tation by its supervisors coerced employees in the ex- ercise of their rights; (2) no agreement was reached between the parties on voting eligibility; (3) the PLRB did not have jurisdiction over Respondent; and (4) PLRB agents' "fraternization" with union representatives, which was observed by employees who had not yet voted, had a detrimental effect on the election. It is axiomatic that parties do not have an absolute right to a hearing in a proceeding such as the instant one. It is only when the moving party presents a pri- ma facie showing of substantial and material issues which would warrant setting aside the election that it is entitled to an evidentiary hearing. It is clear that absent arbitrary action this qualified right to a hear- ing satisfies the constitutional requirements of due process.'6 Applying these standards, it is clear that Respondent is not entitled to a hearing in this pro- ceeding. We note with respect to its contentions regarding the first three issues listed supra, and its entitlement to a hearing on these issues, that Respondent argues that certain "material facts" are not now before the Board for decision. Respondent does not indicate what those facts are. Respondent also argues that it has evidence, not previously known during the pendency of the PLRB proceedings, involving these issues. But Re- spondent has not supplied affidavits nor detailed the nature of this alleged newly discovered evidence. Re- spondent also claims that the PLRB decisions and orders attached to the General Counsel's Motion for Summary Judgment do not fully set forth the facts necessary for the Board to consider certain of the is- sues before it presently. However, Respondent has not indicated how these documents are deficient and how the transcripts of the PLRB proceedings, which Respondent has offered to submit, will materially af- fect the proceeding here. With respect to the fourth issue on which Respon- dent seeks a hearing, i.e., the alleged fraternization of PLRB agents with union representatives, the PLRB found that one union representative and two PLRB agents were seen talking as the agents left the prem- ises during a break in voting. The three were observed speaking together for a few minutes. They then walked down a ramp leading out of the hospital where they separated and went their respective ways. The PLRB noted that there was no claim or hint of wrongdoing on the part of any of the involved parties, and it rejected this incident as having a bearing or effect on the election's outcome. Respondent argues that the PLRB failed to take account of the fact 16 GT'E lxenkurt, Incorporated. 218 NLRB 929 (1975); Heavenl,y Valley Ski Area, a ('alofrnia Corporation, and Heaenly Ialley, a Partnership. 215 NLR 734 (1974); Amalgamated lothing Workers oJ America l4'inmield Manu/lacuring ('omrpan. Inc. v. N L.R B. 424 F.2d 818 (D.C.Cir. 1970). 450 DOCTORS OSTEOPATHIC HOSPITAL (noted in the transcript before the PLRB) that nonsu- pervisory employees who had not voted saw this inci- dent. It further argues that it has newly discovered evidence involving other examples of similar fraterni- zation but has declined to elaborate such evidence to the Board at this time. We conclude that Respondent must do more than allege the omission of material facts or argue that it now has evidence, not previously discovered, before it is entitled to a hearing. At a minimum, Respondent must disclose at this stage of the proceeding the na- ture of the new evidence which it allegedly possesses so that the Board can intelligently evaluate whether that evidence warrants a hearing now. This Respon- dent has failed to do. We have already rejected as grounds for granting Respondent's Cross-Motion for Summary Judgment the first three issues on which it alternatively alleges that it is entitled to a hearing. We now further find that it is not entitled to a hearing on those issues. With respect to the issue of PLRB agent "fraternization" on which it also seeks a hearing, we now deny that request also and instead extend comity to the PLRB's resolution of that issue. It is manifest that that resolution neither violated due process nor the purposes of the Act. In sum, it is well settled that in the absence of new- ly discovered 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 liti- gated in a prior representation proceeding.'7 All issues raised by Respondent in this proceeding were or could have been litigated in the prior repre- sentation proceeding, and Respondent has not indi- cated the nature of certain alleged newly discovered evidence which it has not stated was previously un- available, nor does it allege that any special circum- stances 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 General Counsel's Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONI)ENT At all times material herein, Respondent has been, and is now, a private nonprofit corporation engaged 17See Pittsburgh Plate Glass Co. v. 1RB. 313 U.S 146. I62 (1941) Rules and Regulations of the Board, Secs. I02.67(t) and 102.6 9(c). in providing health services in Erie, Pennsylvania. During the past year Respondent, in the course and conduct of its business operations, performed services valued in excess of $250,000. During the same period, Respondent purchased and received goods valued in excess of $50,000 directly from firms located outside the Commonwealth of Pennsylvania. 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. 1. THE LABOR ORGANIZATION INV()LVEI) American Federation of State, County and Munici- pal Employees, District Council 85, AFL CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. 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 full-time and regular part-time professional and nonprofessional employees, excluding confi- dential, supervisory, first-level supervisory, man- agement-level employees and guards as defined in the Act. 2. The certification On June 13, 1973, a majority of the employees of Respondent in said unit, in a secret-ballot election conducted under the supervision of the Pennsylvania Labor Relations Board, 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 January 17, 1974, 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 or about October 26, 1973. and at all times thereafter, the Union has requested Respon- dent to bargain collectively with it as the exclusive collective-bargaining representative of all the employ- ees in the above-described unit. Commencing on or about November 15, 1973, and in particular on and 451 DECISIONS OF NATIONAL LABOR RELATIONS BOARD after August 25, 1974, and continuing at all times thereafter to date, Respondent has refused, and con- tinues 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 October 7, 1975, i.e., 6 months before the filing of the instant charge, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit, and that, by such refusal, Respondent has en- gaged 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 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. 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 () 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. Doctors Osteopathic Hospital is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. American Federation of State, County and Mu- nicipal Employees, District Council 85, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time professional and nonprofessional employees, excluding confiden- tial, supervisory, first-level supervisory, management- level employees and guards as defined in the Act, constitute a unit appropriate for the purposes of col- lective bargaining within the meaning of Section 9(b) of the Act. 4. Since January 17, 1974, 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. 5. By refusing on or about October 7, 1975, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bar- gaining representative of all the employees of Re- spondent in the appropriate unit, Respondent has en- gaged in and is engaging in unfair labor practices 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, Doc- tors Osteopathic Hospital, Erie. Pennsylvania, its offi- cers, 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 American Federation of State, County and Municipal Employees, District Council 85, AFL-CIO, as the exclusive bargaining representative of its employees in the following ap- propriate unit: All full-time and regular part-time professional and nonprofessional employees, excluding confi- dential, supervisory, first-level supervisory, man- agement-level employees and guards as defined in the Act. 452 DOCTORS OSTEOPATHIC HOSPITAL (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 Doctors Osteopathic Hospital copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Regional Direc- tor for Region 6, 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 6, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. is 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 Judg- ment of the United States Court of Appeals Enforcing an order of the Na- tional Labor Relations Board." APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL. LABOR REl.AIIONS BOARD An Agenc, of the nited States Government WI W1.1. NT refuse to bargain collectivelN concerning rates of pay, wages, hours. and other terms and conditions of employment with American Federation of State, Count and Mu- nicipal Employees. District Council 85, AF.L- CIO, as the exclusive representative of the em- ployees in the bargaining unit described beloi. VW'F xV.il. Noi in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them hby 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 full-time and regular part-time professional and nonprofessional employees, excluding confi- dentiali. supervisory, first-level supervisory. man- agement-level employees and guards as defined in the Act. DOCTORS OSrEOPA1HIIC HOSPITAI 453