Mercy Healthcare of Sacramento

327 NLRB No. 109 1 NOTICE: This opinion is subject to formal revision before publication in the Board volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Mercy Healthcare of Sacramento d/b/a Methodist Hospital and Stationary Engineers, Local 39, In- ternational Union Of Operating Engineers, AFL–CIO. Case 20–CA–28827 February 10, 1999 DECISION AND ORDER BY MEMBERS FOX, LIEBMAN, AND HURTGEN Pursuant to a charge and an amended charge filed on December 3 and 17, 1998, respectively, the General Counsel of the National Labor Relations Board issued a complaint on December 17, 1998, alleging that the Re- spondent has violated Section 8(a)(5) and (1) of the Na- tional Labor Relations Act by refusing the Union’s re- quest to bargain following the Union’s certification in Case 20–RC–17442. (Official notice is taken of the “re- cord” 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 deny- ing in part the allegations in the complaint. On January 5, 1999, the General Counsel filed a Mo- tion for Summary Judgment. On January 8, 1999, 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. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Ruling on Motion for Summary Judgment In its answer and response the Respondent admits its refusal to bargain, but attacks the validity of the certifi- cation on the basis of the Board’s unit determination in the representation proceeding. Specifically, the Respon- dent reiterates its contention, raised and rejected in the representation case, that the petitioned-for unit limited to its Methodist Hospital facility is not an appropriate unit, and that the only unit appropriate for collective- bargaining purposes is a multifacility unit that consists of the petitioned-for classifications at all five of the Re- spondent’s hospitals in the greater Sacramento, Califor- nia area. All representation issues raised by the Respondent were or could have been litigated in the prior representa- tion proceeding. The Respondent does not offer to ad- duce at a hearing any newly discovered and previously unavailable evidence, nor does it allege any special cir- cumstances 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 un- fair labor practice proceeding. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accord- ingly, we grant the Motion for Summary Judgment.1 On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a nonprofit pub- lic benefit corporation, with an office and place of busi- ness on Hospital Drive in Sacramento, California, has been engaged in the business of operating acute care hospitals, including the facility referred to above. During the 12-month period ending June 30, 1998, the Respon- dent in conducting its business operations described above, derived gross revenues in excess of $250,000, and purchased and received at its Sacramento, California facility, goods valued at more than $5000 which origi- nated from points outside the State of California. 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 October 2, 1998, the Un- ion was certified on November 3, 1998, as the exclusive collective-bargaining representative of the employees in the following appropriate unit: All full-time and regular part-time maintenance technicians, engineers, bio-medical equipment tech- nicians and bio-medical maintenance technicians employed by the Employer at its Methodist Hospital facility located in Sacramento, California; excluding all clerical employees, guards, and supervisors as de- fined in the Act. The Union continues to be the exclusive representative un- der Section 9(a) of the Act. B. Refusal to Bargain Since November 18, 1998, the Union has requested the Respondent to bargain, and, since November 11, 1998, the Respondent has refused. We find that this refusal constitutes 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 November 11, 1998, to bar- gain with the Union as the exclusive collective- bargaining representative of employees in the appropriate 1 Member Hurtgen dissented from the denial of review in the under- lying representation case, and he remains of that view. However, he agrees that the Respondent has not raised any new matters that are properly litigable in this unfair labor practice case. See Pittsburgh Plate Glass v. NLRB, 313 U.S. 144, 162 (1941). In light of this, and for institutional reasons, he agrees with the decision to grant the General Counsel’s Motion for Summary Judgment. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 unit, the Respondent has engaged in unfair labor prac- tices affecting 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 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 the law, we shall construe the initial period of the cer- tification 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, Mercy Healthcare of Sacramento d/b/a Methodist Hospital, Sacramento, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Stationary Engineers, Lo- cal 39, International Union of Operating Engineers, AFL–CIO as the exclusive bargaining representative of the employees in the bargaining unit. (b) In any like or related manner interfering with, re- straining, 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 appro- priate 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 maintenance technicians, engineers, bio-medical equipment tech- nicians and bio-medical maintenance technicians employed by the Employer at its Methodist Hospital facility located in Sacramento, California; excluding all clerical employees, guards, and supervisors as de- fined in the Act. (b) Within 14 days after service by the Region, post at its facility in Sacramento, California, copies of the at- tached notice marked “Appendix.” 2 Copies of the notice, 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 Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” on forms provided by the Regional Director for Region 20, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent 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 al- tered, 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 facil- ity involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the no- tice to all current employees and former employees em- ployed by the Respondent at any time since November 11, 1998. (c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. Dated, Washington, D.C. February 10, 1999 Sarah M. Fox, Member Wilma B. Liebman, Member Peter J. Hurtgen, 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 vio- lated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT refuse to bargain with Stationary Engi- neers, Local 39, International Union of Operating Engi- neers, 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 terms and conditions of employment for our employees in the bar- gaining unit: METHODIST HOSPITAL 3 All full-time and regular part-time maintenance technicians, engineers, bio-medical equipment tech- nicians and bio-medical maintenance technicians employed by us at our Methodist Hospital facility located in Sacramento, California; excluding all clerical employees, guards, and supervisors as de- fined in the Act. MERCY HEALTHCARE OF SACRMENTO D/B/A METHODIST HOSPITAL