Fair Oaks Anesthesia Associates

304 NLRB No. 144 DOR D-22892 Fairfax, VA UNITED STATES OF AMERICA BEFORE THE NATIONAL LABOR RELATIONS BOARD FAIR OAKS ANESTHESIA ASSOCIATES, P.C. and Case 5-CA-21994 FAIR OAKS C.R.N.A. ASSOCIATION September 30, 1991 By Members Devaney, Oviatt, and Raudabaugh DECISION AND ORDER On June 13, 1991, the General Counsel of the National Labor Relations Board issued a complaint 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 certification in Case 5--RC--13473. (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 complaint. On August 27, 1991, the General Counsel filed a Motion for Summary Judgment. On August 30, 1991, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Respondent filed a response on September 13, 1991. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. 304 NLRB No. 144 D--2292 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 unit determination in the representation proceeding. All representation issues raised by the Respondent were or could have been litigated in the prior representation proceeding. The Respondent does not offer to adduce at a hearing any newly discovered and previously unavailable evidence, nor does it allege any special circumstances that would require the Board to reexamine the decision made in the representation proceeding. 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 Judgment. On the entire record, the Board makes the following Findings of Fact I. Jurisdiction The Respondent, a Virginia corporation, is engaged in providing anesthesia services at Fair Oaks Hospital, a health care institution in Fairfax, Virginia. During the 12 months preceding issuance of the complaint, a representative period, Fair Oaks Hospital derived gross revenues in excess of $250,000, and purchased and received products, goods, and materials valued in excess of $5000 directly from points outside the State of Virginia. During the same period, the Respondent received in excess of $50,000 for services provided to patients at Fair Oaks Hospital, and derived gross revenues in excess of $250,000. 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. D--2292 II. Alleged Unfair Labor Practices A. The Certification Following the election held on December 14, 1990, the Union was certified on May 20, 1991, as the collective-bargaining representative of the employees in the following appropriate unit: All full-time and regular part-time non-supervisory certified registered nurse anesthetists employed by the Employer at its Fairfax, Virginia offices, but excluding all other employees, anesthesiologists, 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 on or about May 8, 1991, the Union has requested the Respondent to bargain and, since on or about May 24, 1991, the Respondent had refused. We find that this refusal constitutes an unlawful refusal to bargain in violation of Section 8(a) (5) and (1) of the Act. Conclusions of Law By refusing on an after May 24, 1991, 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 affecting commerce within the meaning of Section (a) (5) and (1) and Section 2(6) and (7) of the Act. Remedy Having found that the Respondent has violated Section 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 understanding in a signed agreement. To ensure that the employees are accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial D--2292 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, Fair Oaks Anesthesia Associates, P.C., Fairfax, Virginia, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Fair Oaks C.R.N.A. Association as the exclusive bargaining representative 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 exclusive representative of the employees in the following appropriate unit on terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement: All full-time and regular part-time non-supervisory certified registered nurse anesthetists employed by the Employer at its Fairfax, Virginia offices, but excluding all other employees, anesthesiologists, guards and supervisors as defined in the Act. (b) Post at its facility in Fairfax, Virginia, copies of the attached D-2292 notice marked ''Appendix. ..1 Copies of the notice, on forms provided by the Regional Director for Region 5, after being signed by the Respondent's authorized representative, shall be posted by the Respondent 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 Respondent to ensure that the notices are not altered, defaced, 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 Respondent had taken to comply. Dated, Washington, D.C. September 30, 1991 Dennis M. Devaney, Member Clifford R. Oviatt, Jr., Member John N. Raudabaugh, Member NATIONAL LABOR RELATIONS BOARD (SEAL) 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 JUDGMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD. D--2292 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 ordered us to post and abide by this notice. WE WILL NOT refuse to bargain with Fair Oaks C.R.N.A. Association 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 non-supervisory certified registered nurse anesthetists employed by the Employer at its Fairfax, Virginia offices, but excluding all other employees, anesthesiologists, guards and supervisors as defined in the Act. FAIR OAKS ANESTHESIA ASSOCIATES, P.C. (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 109 Market Place, Fourth Floor, Baltimore, Maryland 21202-4026, Telephone 301--962--2772.