Northwestern Institute of Psychiatry

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. Northwestern Institute of Psychiatry and Pennsylva­ nia State Education Association. Case 4–CA– 25471–2 March 24, 1997 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS FOX AND HIGGINS Pursuant to a charge filed on November 21, 1996, the General Counsel of the National Labor Relations Board issued a complaint on January 10, 1997, alleg­ ing that the Respondent has violated Section 8(a)(5) and (1) of the National Labor Relations Act by refus­ ing the Union’s request to bargain following the Union’s certification in Case 4–RC–18333. (Official notice is taken of the ‘‘record’’ in the representation proceeding as defined in the Board’s Rules and Regu­ lations, Secs. 102.68 and 102.69(g); Frontier Hotel, 265 NLRB 343 (1982).) The Respondent filed an an­ swer admitting in part and denying in part the allega­ tions in the complaint. On February 18, 1997, the General Counsel filed a Motion for Summary Judgment. On February 19, 1997, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the mo­ tion should not be granted. The Respondent did not file a response. Ruling on Motion for Summary Judgment In its answer the Respondent admits its refusal to bargain but attacks the validity of the certification on the basis of the Board’s determination in the represen­ tation proceeding that a number of nurses in the unit are not statutory supervisors. 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.1 See Pitts­ burgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 1 Member Higgins did not participate in the representation case and expresses no view on the merits of that decision. He agrees, however, that the Respondent has not raised any issue that is prop­ erly litigable before the Board in this unfair labor practice proceed­ ing. (1941). Accordingly, we grant the Motion for Sum­ mary Judgment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a Delaware corporation, with a facility in Fort Washington, Penn­ sylvania, has been engaged in the operation of a men­ tal health treatment facility. During the 12-month pe­ riod preceding the issuance of the complaint, the Re­ spondent, in conducting its business operations de- scribed above, received gross revenues in excess of $250,000, and purchased and received goods valued at in excess of $50,000 directly from points outside the Commonwealth of Pennsylvania. We find that the Re­ spondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that the Union is a labor organization within the mean­ ing of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held on May 26, 1994, the Union was certified on November 1, 1996, as the ex­ clusive collective-bargaining representative of the em­ ployees in the following appropriate unit: All regular full-time and regular part-time nurses employed by Respondent as staff registered nurses, graduate nurses pending board licensure as registered nurse or nursing care coordinators at Northwestern Institute of Psychiatry’s Hospital at 450 Bethlehem Pike, Fort Washington, Pennsylva­ nia, excluding all on-call/per diem registered nurses, office clerical employees, technical em­ ployees, all other professional and non-profes­ sional employees, and guards and supervisors as defined in the Act. The Union continues to be the exclusive representative under Section 9(a) of the Act. B. Refusal to Bargain Since November 18, 1996, the Union has requested the Respondent to bargain, and, since November 19, 1996, the Respondent has refused. We find that this re­ fusal constitutes an unlawful refusal to bargain in vio­ lation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By refusing on and after November 19, 1996, to bar- gain with the Union as the exclusive collective-bar- gaining representative of employees in the appropriate unit, the Respondent has engaged in unfair labor prac­ tices affecting commerce within the meaning of Sec- 323 NLRB No. 41 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tion 8(a)(5) and (1) and Section 2(6) and (7) of the Act. 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, Northwestern Institute of Psychiatry, Fort Washington, Pennsylvania, its officers, agents, succes­ sors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Pennsylvania State Education Association, as the exclusive bargaining rep­ resentative 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 regular full-time and regular part-time nurses employed by Respondent as staff registered nurses, graduate nurses pending board licensure as registered nurse or nursing care coordinators at Northwestern Institute of Psychiatry’s Hospital at 450 Bethlehem Pike, Fort Washington, Pennsylva­ nia, excluding all on-call/per diem registered nurses, office clerical employees, technical em­ ployees, all other professional and non-profes­ sional employees, and guards and supervisors as defined in the Act. (b) Within 14 days after service by the Region, post at its facility in Fort Washington, Pennsylvania, copies of the attached notice marked ‘‘Appendix.’’2 Copies of 2 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 the notice, on forms provided by the Regional Director for Region 4 after being signed by the Respondent’s authorized 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 November 21, 1996. (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. March 24, 1997 llllllllllllllllll William B. Gould IV, Chairman llllllllllllllllll Sarah M. Fox, Member llllllllllllllllll John E. Higgins, Jr., Member (SEAL) 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 Pennsylvania State Education Association as the exclusive represent­ ative 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 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.’’ NORTHWESTERN INSTITUTE OF PSYCHIATRY 3 terms and conditions of employment for our employees in the bargaining unit: All regular full-time and regular part-time nurses employed by us as staff registered nurses, grad­ uate nurses pending board licensure as registered nurse or nursing care coordinators at our hospital at 450 Bethlehem Pike, Fort Washington, Penn­ sylvania, excluding all on-call/per diem registered nurses, office clerical employees, technical em­ ployees, all other professional and non-profes­ sional employees, and guards and supervisors as defined in the Act. NORTHWESTERN INSTITUTE OF PSYCHIA­ TRY