Marymount Hospital

1 NOTICE: This opinion is subject to formal revision before publication in the Board volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal er­ rors so that corrections can be included in the bound volumes. Marymount Hospital, Inc. and Truck Drivers Union, Local No. 407 a/w International Broth­ erhood of Teamsters, AFL–CIO. Case 8–CA– 29048 July 18, 1997 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS FOX AND HIGGINS Pursuant to a charge filed on May 20, 1997, the General Counsel of the National Labor Relations Board issued a complaint on May 29, 1997, alleging that the Respondent has violated Section 8(a)(5) and (1) of the National Labor Relations Act by refusing the Union’s request to bargain following the Union’s cer­ tification in Case 8–RC–15397. (Official notice is taken of the ‘‘record’’ in the representation proceeding as defined in the Board’s Rules and Regulations, Secs. 102.68 and 102.69(g); Frontier Hotel, 265 NLRB 343 (1982).) The Respondent filed an answer admitting in part and denying in part the allegations in the com­ plaint. On June 20, 1997, the General Counsel filed a Mo­ tion for Summary Judgment. On June 23, 1997, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. On July 7, 1997, the Respond­ ent filed a response. Ruling on Motion for Summary Judgment In its answer and response the Respondent admits its refusal to bargain, but attacks the validity of the cer­ tification on the basis of its objections to the election in the representation proceeding. All representation issues raised by the Respondent were or could have been litigated in the prior represen­ tation proceeding. The Respondent does not offer to adduce at a hearing any newly discovered and pre­ viously unavailable evidence, nor does it allege any special circumstances that would require the Board to reexamine the decision made in the representation pro­ ceeding. We therefore find that the Respondent has not raised any representation issue that is properly litigable in this unfair labor practice proceeding. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accordingly, we grant the Motion for Summary Judg­ ment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a not-for-prof- it Ohio corporation, with an office and place of busi­ ness in Garfield Heights, Ohio, has been engaged in the operation of an acute care hospital. Annually, the Respondent, in conducting its business operations, de- rives gross revenues in excess of $250,000 and pur­ chases and receives goods valued in excess of $50,000 directly from points outside the State of Ohio. We find that the Respondent is an employer engaged in com­ merce within the meaning of Section 2(6) and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held July 25, 1996, the Union was certified on March 26, 1997, as the exclusive col­ lective-bargaining representative of the employees in the following appropriate unit: All skilled maintenance employees of the Re­ spondent, including electricians, lead painter, painters, general maintenance persons, lead gar­ dener, gardeners, power plant mechanics, firemen (boiler operators), stationary engineers and clinical equipment technicians, but excluding all manage- rial employees, the plant operations supervisor, the life safety coordinator, the supervisor of gen­ eral maintenance and all office clerical employees, and professional employees, guards and super- visors as defined in the Act and all other employ­ ees of the Respondent. The Union continues to be the exclusive representative under Section 9(a) of the Act. B. Refusal to Bargain Since April 21, 1997, the Union has requested the Respondent to bargain, and, since May 7, 1997, the Respondent has refused. We find that this refusal con­ stitutes an unlawful refusal to bargain in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By refusing on and after May 7, 1997, to bargain with the Union as the exclusive collective-bargaining representative of employees in the appropriate unit, the Respondent has engaged in unfair labor practices af­ fecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. 323 NLRB No. 219 VerDate 08-MAY-96 05:46 Jul 31, 1997 Jkt 000000 PO 00000 Frm 00001 Fmt 0610 Sfmt 0610 O:\GPOBV\V323.219 nlrb01 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD REMEDY Having found that the Respondent has violated Sec­ tion 8(a)(5) and (1) of the Act, we shall order it to cease and desist, to bargain on request with the Union and, if an understanding is reached, to embody the un­ derstanding in a signed agreement. To ensure that the employees are accorded the serv­ ices of their selected bargaining agent for the period provided by the law, we shall construe the initial pe­ riod of the certification as beginning the date the Re­ spondent begins to bargain in good faith with the Union. Mar-Jac Poultry Co., 136 NLRB 785 (1962); Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). ORDER The National Labor Relations Board orders that the Respondent, Marymount Hospital, Inc., Garfield Heights, Ohio, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Refusing to bargain with Truck Drivers Union, Local No. 407 a/w International Brotherhood of Team­ sters, AFL–CIO as the exclusive bargaining representa­ tive of the employees in the bargaining unit. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request, bargain with the Union as the exclu­ sive representative of the employees in the following appropriate unit on terms and conditions of employ­ ment and, if an understanding is reached, embody the understanding in a signed agreement: All skilled maintenance employees of the Re­ spondent, including electricians, lead painter, painters, general maintenance persons, lead gar­ dener, gardeners, power plant mechanics, firemen (boiler operators), stationary engineers and clinical equipment technicians, but excluding all manage- rial employees, the plant operations supervisor, the life safety coordinator, the supervisor of gen­ eral maintenance and all office clerical employees, and professional employees, guards and super- visors as defined in the Act and all other employ­ ees of the Respondent. (b) Within 14 days after service by the Region, post at its facility in Garfield Heights, Ohio, copies of the attached notice marked ‘‘Appendix.’’1 Copies of the 1 If 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 notice, on forms provided by the Regional Director for Region 8 after being signed by the Respondent’s au­ thorized representative, shall be posted by the Re­ spondent and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the no­ tices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these pro­ ceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Re­ spondent at any time since May 20, 1997. (c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. Dated, Washington, D.C. July 18, 1997 llllllllllllllllll William B. Gould IV, Chairman llllllllllllllllll Sarah M. Fox, Member llllllllllllllllll John E. Higgins, Jr., Member (SEAL) NATIONAL LABOR RELATIONS BOARD 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 The National Labor Relations Board has found that we violated the National Labor Relations Act and has or­ dered us to post and abide by this notice. WE WILL NOT refuse to bargain with Truck Drivers Union, Local No. 407 a/w International Brotherhood of Teamsters, AFL–CIO as the exclusive representative of the employees in the bargaining unit. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, bargain with the Union and put in writing and sign any agreement reached on VerDate 08-MAY-96 05:46 Jul 31, 1997 Jkt 000000 PO 00000 Frm 00002 Fmt 0610 Sfmt 0610 O:\GPOBV\V323.219 nlrb01 MARYMOUNT HOSPITAL, INC. 3 terms and conditions of employment for our employees employees, the plant operations supervisor, the in the bargaining unit: life safety coordinator, the supervisor of general All skilled maintenance employees of the Em- maintenance and all office clerical employees, and ployer, including electricians, lead painter, paint- professional employees, guards and supervisors as ers, general maintenance persons, lead gardener, defined in the Act and all other employees of the gardeners, power plant mechanics, firemen (boiler Employer. operators), stationary engineers and clinical equip­ ment technicians, but excluding all managerial MARYMOUNT HOSPITAL, INC. VerDate 08-MAY-96 05:46 Jul 31, 1997 Jkt 000000 PO 00000 Frm 00003 Fmt 0610 Sfmt 0610 O:\GPOBV\V323.219 nlrb01