Sierra Vista Hospital, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sierra Vista Hospital, Inc. and California Nurses' Association, affiliated with the American Nurses' Association. Case 31 -CA-5750 April 22, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER Upon a charge filed on November 28, 1975, by California Nurses' Association, affiliated with the American Nurses' Association, herein called the Union, and duly served on Sierra Vista Hospital, Inc., herein called Respondent, the General Counsel of the National Labor Relations Board, by the Acting Regional Director for Region 31, issued a complaint and notice of hearing on October 14, 1976, against Respondent, 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 Administrative Law Judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that on September 12, 1975, following a Board election in Case 31-RC- 3166 the Union was duly certified as the exclusive collective-bargaining representative of Respondent's employees in the unit found appropriate; I and that, commencing on or about October 2, 1975, and at all times thereafter, Respondent has refused, and con- tinues to date to refuse, to bargain collectively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On October 26, 1976, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On February 7, 1977, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on February 25, 1977, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respon- dent thereafter filed a response to Notice To Show Cause in opposition to the Motion for Summary Judgment. Official notice is taken of the record in the representation proceedings, Case 31-RC-3166, as the term "record" is defined in Secs. 102.68 and 102.6 9 (g) of the Board's Rules and Regulations, Series 8, as amended. See LTV Elecirosystems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (C.A. 4, 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26 229 NLRB No. 35 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment In its answer to the complaint and response to the Notice To Show Cause, Respondent argues, in substance, that (1) the Union is not a bona fide labor organization since it is subject to the influence, domination, and control of supervisors and (2) a unit limited to registered nurses, excluding all other professional employees, is inappropriate. The Gener- al Counsel asserts that, as the issues raised by Respondent have been fully litigated in the underly- ing representation case, there are no issues of fact litigable herein. We agree with the General Counsel. Review of the record herein, including that in Case 31-RC-3166, discloses that, at the hearing in the representation proceeding, the parties litigated the issues of the Union's status as a bona fide labor organization and of the appropriateness of a unit of registered nurses and filed posthearing supporting briefs. In its brief, Respondent also requested the Board to reconsider its decision and rationale in Mercy2 and its relevance to Respondent. On August 8, 1975, the Regional Director issued a Decision and Direction of Election in which he found, contrary to Respondent, that (1) the Union was not subject to the influence, domination, and control of supervisors but was a bona fide labor organization, (2) a unit limited to all registered nurses sought by the Union was appropriate although a unit of all professional employees was also appropriate, and (3) the question of reconsideration of the Mercy decision should be directed to the Board. Respondent filed a timely request for review, resubmitting its posthearing brief. In its telegram of September 9, 1975, the Board denied the request for review on the ground that it raised no substantial issues warranting review, but added the caveat that, if the Union were certified and did not delegate its authority to a local autonomous chapter controlled by nonsupervisory employees, a motion to revoke certification would be entertained. The Union won the election conducted on Septem- ber 4, 1975, and thereafter on September 12, 1975, the Regional Director, in the absence of any objections, certified the Union as the exclusive (C.A. 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va., 1967); Follerr Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the N LRA, as amended. 2 Mercy Hospitals of Sacramento, Inc., 217 NLRB 765 (1975). 232 SIERRA VISTA HOSPITAL collective-bargaining representative of the employees in the appropriate registered nurses' unit. Following bargaining requests by the Union, Respondent, on October 29, 1975, filed with the Board a motion to revoke certification, with a supporting brief, alleging that the Union failed to delegate its bargaining authority to a local autono- mous chapter controlled by nonsupervisory employ- ees. The Union filed a brief in opposition to the motion. On January 30, 1976, the Board, having concluded that Respondent's motion raised substan- tial issues which could best be resolved by a hearing, remanded the case to the Regional Director for the purpose of adducing further evidence with respect to the issues raised by the motion, particularly with respect to a definition of the bargaining process and to the degree of participation of supervisory nurses in the bargaining process.3 Thereafter, a hearing was held on March 29 and 30, 1976, before a Hearing Officer who, pursuant to the Board's direction, transferred the entire record to the Board for final determination. Subsequently, Respondent filed a supplemental brief in support of its motion. On August 31, 1976, the Board issued a Decision and Order (225 NLRB 1086) in which it denied Respon- dent's motion to revoke certification, finding that the Union had "effectively delegated its collective-bar- gaining authority, which it acquired by virtue of the Board's certification here, to an autonomous local unit of nonsupervisory registered nurses, and that said local is properly exercising this authority on its own behalf." It thus appears that Respondent is attempting to raise in the instant unfair labor practice proceeding matters which were raised and resolved in the underlying representation case. It is well settled that in the absence of newly 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 litigated in a prior representation proceeding. 4 All issues raised by Respondent in this proceeding were or could have been litigated in the prior representation proceeding, and Respondent does not offer to adduce at a hearing any newly discovered or previously unavailable evidence, nor does it allege that any special circumstances 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. We shall, accordingly, grant the Motion for Summary Judgment. 3 Member Jenkins, dissenting, would have denied the motion. 4 See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board. Secs. 102.67(f) and 102.69(c). On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent is a California corporation with an office and principal place of business in San Luis Obispo, California, where it is engaged in the operation of an acute general hospital. Respondent, in the course of its business operations, annually purchases and receives goods or services valued in excess of $5,000 directly from suppliers located outside the State of California and annually derives gross revenues in excess of $250,000. We find, on the basis of the foregoing, that Respondent 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. 11. THE LABOR ORGANIZATION INVOLVED California Nurses' Association, affiliated with the American Nurses' Association, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 1. 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 registered nurses; excluding all other employees, office clerical employees, guards and supervisors as defined in the Act. 2. The certification On September 4, 1975, a majority of the employees of Respondent in said unit, in a secret ballot election conducted under the supervision of the Regional Director for Region 31, designated the Union as their representative for the purpose of collective bargain- ing with Respondent. The Union was certified as the collective-bargaining representative of the employees in said unit on September 12, 1975, and the Union continues to be such exclusive representative within the meaning of Section 9(a) of the Act. 233 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. The Request To Bargain and Respondent's Refusal Commencing on or about October 2, 1975, and September 7, 1976, and at all times thereafter, the Union has requested Respondent to bargain collec- tively with it as the exclusive collective-bargaining representative of all the employees in the above- described unit. Commencing on or about October 2, 1975, and continuing at all times thereafter to date, Respondent has refused, and continues 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 2, 1975, 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, Respon- dent has engaged 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 opera- tions described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of com- merce. v. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) 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 appropriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. In order to insure that the employees in the appropriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certifica- tion as beginning on the date Respondent commenc- es to bargain in good faith with the Union as the recognized bargaining representative in the appropri- ate 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 (C.A. 5, 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (C.A. 10, 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Sierra Vista Hospital, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. California Nurses' Association, affiliated with the American Nurses' Association, is a labor organi- zation within the meaning of Section 2(5) of the Act. 3. All registered nurses; excluding all other employees, office clerical employees, guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since September 12, 1975, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the aforesaid appropriate unit for the purpose of collec- tive bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about October 2, 1975, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employees of Respondent in the appropriate unit, Respondent has engaged 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, Respon- dent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employ- ees in the exercise of the rights guaranteed to them in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(l) 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 Relations Board hereby orders that Respondent Sierra Vista Hospital, Inc., San Luis Obispo, Califor- nia, its officers, 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 conditions of employment with California Nurses' Association, affiliated with the American Nurses' Association, as the exclusive bargaining representa- tive of its employees in the following appropriate unit: 234 SIERRA VISTA HOSPITAL All registered nurses; excluding all other employees, office clerical employees, guards and supervisors as defined in the Act. (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 under- standing is reached, embody such understanding in a signed agreement. (b) Post at its San Luis Obispo, California, Acute General Hospital, copies of the attached notice marked "Appendix." 5 Copies of said notice, on forms provided by the Regional Director for Region 31 after being duly signed by Respondent's represen- tative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 31, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 5 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 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 WE WILL NOT refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Califor- nia Nurses' Association, affiliated with the Amer- ican Nurses' Association, as the exclusive repre- sentative of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by 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 described 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 agree- ment. The bargaining unit is: All registered nurses; excluding all other employees, office clerical employees, guards and supervisors as defined in the Act. SIERRA VISTA HOSPITAL, INC. 235