Yukon Kuskokwin Health Corp.

329 NLRB No. 86 NOTICE: This opinion is subject to formal revision before publication in the bound 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. Yukon Kuskokwim Health Corporation and Interna- tional Brotherhood of Teamsters, Local 959, AFL–CIO. Case 19–CA–26663 October 29, 1999 DECISION AND ORDER BY CHAIRMAN TRUESDALE AND MEMBERS FOX AND BRAME Pursuant to a charge filed on September 3, 1999, the General Counsel of the National Labor Relations Board issued a complaint on September 9, 1999, 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 19–RC–13271. (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 September 30, 1999, the General Counsel filed a Motion for Summary Judgment. On October 1, 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 the Respondent admits its refusal to bar- gain, but attacks the validity of the certification on the basis of its contention, raised and rejected in the under- lying representation proceeding, that the Board cannot and should not assert jurisdiction over the Respondent because it is exempt from coverage under Section 2(2) of the Act as it is a public employer operated by federally recognized sovereign Native Alaskan tribes. 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. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a State of Alaska nonprofit corporation, with an office and place of business in Bethel, Alaska, has been engaged in the busi- ness of operating an acute care hospital. During the 12- month period preceding issuance of the complaint, a rep- resentative period, the Respondent, in conducting its business operations described above, derived gross reve- nues in excess of $250,000, and purchased and caused to be transferred and delivered to its facilities within the State of Alaska goods and materials valued at more than $5000 which originated directly from points outside the State of Alaska. We find that the Respondent is an em- ployer engaged in commerce within the meaning of Sec- tion 2(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 mail ballot election held between No- vember 13 and December 3, 1996, the Union was certi- fied on August 6, 1999, as the exclusive collective- bargaining representative of the employees in the fol- lowing appropriate unit: All registered nurses and licensed practical nurses em- ployed by the Employer at its Bethel, Alaska, facility; but excluding all certified nurse anesthetists, advanced nurse practitioners, federal employees working on in- terpersonal agreements (IPAs) or memoranda of agreement (MOAs), guards and supervisors as defined by the Act, and all other employees. The Union continues to be the exclusive representative under Section 9(a) of the Act. B. Refusal to Bargain Since about August 11, 1999, the Union has requested the Respondent to bargain, and, since about September 1, 1999, the Respondent has refused. We find that this re- fusal constitutes an unlawful refusal to bargain in viola- tion of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By refusing on and after September 1, 1999, 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 affect- ing 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 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 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, Yukon Kuskokwim Health Corporation, Bethel, Alaska, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Refusing to bargain with International Brotherhood of Teamsters, Local 959, AFL–CIO as the exclusive bar- gaining 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 registered nurses and licensed practical nurses em- ployed by the Employer at its Bethel, Alaska, facility; but excluding all certified nurse anesthetists, advanced nurse practitioners, federal employees working on in- terpersonal agreements (IPAs) or memoranda of agreement (MOAs), guards and supervisors as defined by the Act, and all other employees. (b) Within 14 days after service by the Region, post at its facility in Bethel, Alaska, copies of the attached no- tice marked “Appendix.” 1 Copies of the notice, on forms provided by the Regional Director for Region 19 after being signed by the Respondent’s authorized representa- tive, 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 Respon- dent to ensure that the notices are not altered, defaced, or 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 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.” 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 proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all cur- rent employees and former employees employed by the Respondent at any time since September 1, 1999. (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. October 29, 1999 John C. Truesdale, Chairman Sarah M. Fox, Member J. Robert Brame III, 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 International Brotherhood of Teamsters, Local 959, AFL–CIO as the exclusive representative of the employees in the bar- gaining 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: All registered nurses and licensed practical nurses em- ployed by us at our Bethel, Alaska, facility; but ex- cluding all certified nurse anesthetists, advanced nurse practitioners, federal employees working on interper- sonal agreements (IPAs) or memoranda of agreement (MOAs), guards and supervisors as defined by the Act, and all other employees. YUKON KUSKOKWIM HEALTH CORPORATION