Children's Hospital of Michigan

235 302 NLRB No. 36 CHILDREN’S HOSPITAL OF MICHIGAN 1 The memo, in relevant part, states as follows: The National Labor Relations Board (NLRB) in Washington, D.C. issued a ruling on an appeal made by Children’s Hospital which ques- tioned the legal legitimacy of the Michigan Association of Police-911 to represent both police officers and security guards. In their ruling, the NLRB upheld a decision by the Regional Director of the NLRB in De- troit, thus certifying M.A.P. as the bargaining unit agent for security offi- cers at CHM. Following our review of the NLRB decision, Children’s administration in conjunction with advice from legal counsel does not believe the deci- sion of the NLRB in Case 7–RC–19241 was correct regarding the appli- cation of Section 9(b)(3) and M.A.P.’s status to represent security officers at CHM. Accordingly, CHM will decline to recognize or bargain with M.A.P. pending the determination by an appellate authority. I will continue to keep you apprised of the appeal process. 2 In its response to the Notice to Show Cause, the Respondent requests re- consideration of the Board’s decision in the underlying representation proceed- ing arguing, as grounds therefor, that the Board failed to consider or articulate a rationale for rejecting the Respondent’s argument that the Board should, as a matter of law or in the exercise of its discretion, ‘‘withhold certification from public-private guard/non-guard unions’’ like the Union here. The Re- spondent’s request is denied. It is clear from the Board’s decision, in which it found that the Union was not disqualified under Sec. 9(b)(3) from represent- ing the Respondent’s employees in the petitioned-for unit, that the Board duly considered all issues and arguments raised by the Respondent in its brief on appeal. See Children’s Hospital of Michigan, 299 NLRB 430 (1990). The Respondent has also moved to have the record in the representation proceeding reopened so that it can introduce what it claims is ‘‘newly discov- ered evidence’’ showing that the Union ‘‘possibly represents non-guards’’ at another private medical facility. The only evidence submitted by the Respond- ent in support of its motion consists of an affidavit from its assistant adminis- trator of human resources, Eugene Kaminski, in which the latter states that in late August 1990 an unnamed representative of Detroit Medical Center Human Resources told him that ‘‘there was a question about [the Union] possibly rep- resenting non-guards at Detroit Medical Center.’’ The Respondent’s motion is denied. The evidence on which the Respondent relies, consisting of a mere statement from an unidentified individual about the possibility that the Union ‘‘might’’ represent nonguards at a different private medical facility, is simply too relative to justify reopening the record in the representation proceeding. Children’s Hospital of Michigan and Michigan As- sociation of Police-911. Case 7–CA–31328 March 28, 1991 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS DEVANEY AND OVIATT On January 10, 1991, the General Counsel of the National Labor Relations Board issued a complaint al- leging that the Respondent has violated Section 8(a)(5) and (1) of the National Labor Relations Act by refus- ing to bargain with the Union following the Union’s certification in Case 7–RC–19241. (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 its answer admitting in part and denying in part the allegations in the com- plaint. On February 19, 1991, the General Counsel filed a Motion for Summary Judgment. On February 26, 1991, 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 filed a re- sponse on March 12, 1991. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Ruling on Motion for Summary Judgment The complaint alleges that following the Union’s certification on August 23, 1990, as the collective-bar- gaining representative of the Respondent’s employees in an appropriate unit, the Respondent, in a memoran- dum dated December 20, 1990, informed employees that it would decline to recognize and bargain with the Union ‘‘pending [a] determination by an appellate au- thority.’’1 It further alleges that the Respondent’s con- duct in this regard rendered futile any union request for bargaining, and constituted an unlawful refusal to bargain in violation of Section 8(a)(5) and (1) of the Act. The Respondent, in its answer, admits issuing the December 20, 1990 memorandum to employees but denies that it rendered futile any union request for bar- gaining or constituted a refusal to bargain. As it did in the underlying representation proceeding, the Re- spondent in its answer denies that the Union is quali- fied to be certified as an exclusive bargaining rep- resentative. The Respondent’s December 20, 1990 memo to em- ployees clearly reveals its intention to challenge the Board’s certification of the Union before a U.S. court of appeals, and to refuse to recognize or bargain with the Union until ordered to do so by the courts. In these circumstances, we find merit in the complaint allega- tion that the Respondent’s above-described conduct rendered futile any bargaining request the Union may have made, and amounted to a refusal to bargain with the Union. Further, the Respondent’s refusal to bargain is based on a claim, raised in the underlying represen- tation proceeding, that the Union is ineligible for cer- tification as the collective-bargaining representative of its employees under Section 9(b)(3) of the Act because the Union admits both guards and nonguards to mem- bership, and also is affiliated with a union that admits nonguards to membership. 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.2 We therefore find that the Respondent has not raised any representation issue that is properly lit- igable in this unfair labor practice proceeding. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 236 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 3 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 Rela- tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.’’ 162 (1941). Accordingly, we grant the Motion for Summary Judgment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION The Respondent, a Michigan corporation, is a health care institution engaged in the business of providing medical care, products, and services at its office and place of business located at 3901 Beaubien Street, De- troit, Michigan. During the calendar year ending De- cember 31, 1990, a representative period, the Respond- ent, in the course and conduct of its business oper- ations, derived gross revenues in excess of $500,000, and during the same period purchased and caused to be shipped to its place of business in Detroit, Michi- gan, health products and other supplies valued in ex- cess of $50,000 from points and places located outside the State of Michigan. We find that the Respondent 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 meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held on June 7, 1990, the Union was certified on August 23, 1990, as the collec- tive-bargaining representative of the employees in the following appropriate unit: All full-time and regular part-time guards as de- fined in the Act employed by the Employer at its facility located at 3901 Beaubien Street, Detroit, Michigan; but excluding supervisors as defined in the Act and all other employees. The Union continues to be the exclusive representa- tive under Section 9(a) of the Act. B. Refusal to Bargain By its memo of December 20, 1990 to employees, the Respondent rendered futile any bargaining request from the Union, and has, since that date, refused to bargain with the Union. 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 December 20, 1990, to bargain with the Union as the exclusive collective-bargaining rep- resentative 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. 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 law, we shall construe the initial period of the certification as beginning the date the Respondent 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, Children’s Hospital of Michigan, Detroit, Michigan, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Michigan Association of Police-911, 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 full-time and regular part-time guards as de- fined in the Act employed by the Employer at its facility located at 3901 Beaubien Street, Detroit, Michigan; but excluding supervisors as defined in the Act and all other employees. (b) Post at its facility in Detroit, Michigan, copies of the attached notice marked ‘‘Appendix.’’3 Copies of the notice, on forms provided by the Regional Director for Region 7, after being signed by the Respondent’s authorized representative, shall be posted by the Re- spondent immediately upon receipt 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 Re- 237 CHILDREN’S HOSPITAL OF MICHIGAN spondent to ensure that the notices are not altered, de- faced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 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 Michigan As- sociation of Police-911 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 terms and conditions of employment for our employees in the bargaining unit: All full-time and regular part-time guards as de- fined in the Act employed by the Employer at its facility located at 3901 Beaubien Street, Detroit, Michigan; but excluding supervisors as defined in the Act and all other employees. CHILDREN’S HOSPITAL OF MICHIGAN