Bryan Memorial Hospital

BRYAN MEMORIAL HOSPITAL Bryan Memorial Hospital and Nebraska Nurses As- sociation affiliated with American Nurses Asso- ciation. Cases 17-CA-12339, 17-CA-12529, and 17-CA-13021 21 November 1986 DECISION AND ORDER BY' CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON Upon charges filed by the Union on 24 Septem- ber 1984, 14 March 1985, and 23 June 1986,1 the General Counsel of the National Labor Relations Board issued an amended consolidated complaint on 14 August 1986 against: the Company, the Re- spondent, alleging that it has violated Section 8(a)(5) and (1) of the National Labor Relations Act. The complaint alleges that on 8 March 1982 the Union was certified as the exclusive collective-bar- gaining representative of the Respondent's employ- ees in the unit found appropriate.2 The complaint also alleges that since 18 March 1984 the Respond- ent has refused to bargain with the Union. On 12 September 1986 the Company filed its amended answer admitting in part and denying in part the allegations in the complaint. On 22 September 1986 the General Counsel filed a Motion to Transfer Proceeding to Board and for Summary Judgment. On 26 September 1986 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 Company filed a response. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. Ruling on Motion for Summary Judgment The Respondent's answer admits the complaint's allegation that its annual gross revenues are in excess of $250,000 and that it annually purchases goods and services valued in excess of $50,000 di- rectly from sources outside the State of Nebraska. It admits, in addition, that the unit is appropriate and that the Union was certified as the exclusive representative of the employees on 8 March 1982. The Respondent's answer also admits that without notifying the Union or bargaining, with it the Re- ' The Union filed an amended charge in Case 17-CA-12529 on 10 April 1985. 2 After the Union was certified, the Respondent withdrew its recogni- tion on 20 June 1983. Pursuant to its decision in Bryan Memorial Hospital, 279' NLRB 222 (1986), the Board subsequently ordered the Respondent to bargain with the Union on request , discontinue all unilateral changes in the employment terms and conditions of its employees , and rescind all previous unilateral changes on the Union's request. 235 spondent established a layoff policy as of 18 March 1984, revised its leave-of-absence policy as of 10 June 1984, changed its long-term disability and life insurance plans as of 1 October 1984, changed its operating hours and day care service costs as of 1 November 1984, changed its sick leave policy as of 9 December 1984, changed its health insurance pre- miums and coverage as of 1 January 1986, and es- tablished attendance standards and a progressive disciplinary system as of 1 March 1986. The Re- spondent's answer denies that these actions either affect commerce under the Act or constitute an im- proper failure to bargain collectively with the Union. It also denies that the Union, since 8 March 1982, has been, the exclusive collective-bargaining representative of the employees. The Respondent contends in its answer that any unilateral action taken by it was permissible because the Respondent properly withdrew its previous recognition of the Union. In its response to the Notice to Show Cause, the Respondent also admits that the parties and primary issue of this case are the same as those of Bryan Memorial Hospital, '279 NLRB 222 (1986). The Respondent asserts that the Board should deny summary judgment and dismiss the amended con- solidated complaint because the earlier decision "is now on appeal to the United States Court of Ap- peals for the Eighth Circuit (Case No. 86-1549)." The record establishes that pursuant to the Board's decision on 9 April 1986 in Bryan Memori- al Hospital, supra, the Respondent had an obliga- tion to bargain with the Union on 20 June 1983 and thereafter. The Board ordered the Respondent to bargain with the Union on request, discontinue all unilateral changes in the employment terms and conditions of its employees, and "rescind the uni- lateral changes made in the maternity leave policy and the health insurance plan" on the Union's re- quest. After the Board issued Bryan Memorial Hos- pital, the Respondent continued, by the actions de- scribed above, to make unilateral changes in its em- ployees' terms, and conditions of employment.3 Regarding the Respondent's assertion that these unilateral actions were permissible because it had properly withdrawn its previous recognition, of the Union, the General Counsel contends, in its Motion 2 On 5 September 1986, in its "Request for Administrative Notice and Waiver of Trial" in the instant case, the Respondent requested that the judge take administrative notice of the record in Bryan Memorial Hospi- tal, supra. In its response, the General Counsel contended that the Re- spondent's request was improper because the issue of the Union's repre- sentative status and the Respondent's 20 June 1983 withdrawal 'of recog- nition "is res judicata in the current proceedings." On 10 September 1986 Administrative Law Judge Leonard M. Wagman, in his "Order on Re- quest for Administrative Notice and Waiver of Trial," found that the Re- spondent was precluded from rehtigating the appropriateness of its previ- ous withdrawal of recognition . On 15 September 1986 the Regional Di- rector issued an order postponing hearing indefinitely. 282 NLRB No. 32 236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for Summary Judgment, that the "issue is res judi- cata, and may not be raised or re-litigated in the in- stant matter." The Respondent admits that the issue and parties of the previous proceeding are identical but argues that the pendency of the previous proceeding's Federal appeal necessitates a dismissal of the com- plaint. However, it is well settled that "an employ- er is not entitled to refuse to bargain with the certi- fied representative of its employees while it liti- gates the validity of that certification. in the courts of appeals."4 Because all jurisdictional and eviden- tiary issues raised by the Respondent have been liti- gated in the previous unfair labor practice proceed- ing, we find that the Respondent has not raised any issue that is properly litigable. Accordingly, we grant the Motion for Summary Judgment. On the entire record, the Board makes the fol- lowing FINDINGS OF FACT I. JURISDICTION The Respondent, a Nebraska nonprofit corpora- tion, operates a health care facility in Lincoln, Ne- braska. During the past 12 months,,a representative period, the Respondent, in the course of its busi- ness operations, earned gross revenues in excess, of $250,000 and purchased goods and services valued in excess of $50,000 directly from sources outside the State of Nebraska. We find that the Company 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 mean- ing of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification The Union was certified on 8 March 1982 as the collective-bargaining representative of the employ- ees in the following appropriate unit: All full-time and regularly scheduled part-time General Duty Registered Nurses, Special Duty Registered Nurses, Admitting Nurse, Assistant Course Director (CRNA-School of Anesthesi- ology), Assistant Head Nurse I, Assistant Head Nurse II, Cardiac Rehab. Med. Coordinator, Cardiac Rehab. Nurse, Critical Care Nurse, CR Special Procedures RN, Educational Co- ordinator, Ed. Coordinator ICU/CCU, Epide- miologist, G.I. Assistant - RN, M.H.T. Nurse, MICU Instructor, MICU - RN Mobile Heart Team Nurse, Nuclear Medicine Tech., Nurse Anesthetist, Nurse Coordinator, Nursing Edu- 4 Benchmark Industries, 269 NLRB 1096, 1098 ( 1984). cation Instructor, Nursing Education Instruc- tor w/degree, Onocology Nurse, Open Heart Team Leader, 0 & T Coordinator, Pre-op Teaching Nurse, Production Coordinator, Pa- tient Review Coordinator, Patient Teaching Facilitator, Pulmonary Function Tech., Radi- ology Staff Nurse, Rheumatology Nurse, Staff Div. Inst. w/o degree, Staff Nurse - ER, Staff Nurse - Med/Surg., Staff Nurse - OB, Staff Nurse - Obstetrics, Staff Nurse - OR, Staff Nurse - Par, Staff Pharmacist, Staff Supervi- sor, Surgical Care Sec. Dir., and Ultrasound Tech., EXCLUDING Guards, Admitting Su- pervisor, Area Director, Associate Director Nursing Education, Asst. Director Food Serv- ice, Assistant Director Human Resources, Asst. Director Medical Records, Assistant Di- rector Pharmacy, Assistant Director Surgery Suite, Cardiology Supervisor, Cardiovascular Lab Supervisor, Central Service Supervisor, Chief Medical Technologist, Communications Specialist, Computer Operations Supervisor, Day Care Director, Dietician, Director of An- esthesia, Director of CGR Services, Director of Computer Services, Director of Electroen- cephalography, Director of Engineering, Di- rector of Food Service, Director of Health Planning, Director of Human Resources, Di- rector of Internal Auditing, Director of Main- tenance, Director of Management Accounting, Director of Medical Records, Director of Nursing Adm. Service, Director of Operations Analysis, Director of Pastoral Care, Director of Patient Account Services, Director of Phar- macy, Director of Physical Therapy, Director of Plant` Operations, Director of Public Relations/Fund Dev., Director of Radiology, Director of Respiratory Theraphy, Director of Social Service, Director of Volunteer Serv- ices, Education/Training Coordinator, General Accounting Supervisor, General Stores/Dist. Supervisor, G.I. Lab Supervisor, Head Nurse, House Supervisor, Medical Records Supervi- sor, Nursing Education Clinical Coordinator, Nursing Education Med/Surg. Coordinator, Nursing Education Supervisor, Nursing Serv- ice Education Supervisor; Patient Accounting Supervisor, Patient Service Supervisor, Pay- roll Supervisor, PBX Supervisor, President, Purchasing Agent, Radiology Office Supervi- sors, Repr/Micrographics Supervisor, Respira- tory Theraphy Lead Tech., Shipping/Receiv- ing Supervisor, Special Procedures Supervisor, Tech. Director Radiology, Utilization Review Coordinator, Vice-President (Division A), Vice-President (Division B), Vice-President BRYAN MEMORIAL HOSPITAL (Division C), Supervisors aS defined in the Act, and all other employees. The Union continues to be the exclusive represent- ative under Section 9(a) of the Act. B. Refusal to Bargain Without notifying the Union or bargaining with it, the Respondent established a layoff policy as of 18 March 1984, revised its leave-of-absence policy as of 10 June 1984, changed its long-term disability and life insurance plans as of 1 October 1984, changed its operating hours and day care service costs as of 1 November 1984, changed its sick leave policy as of 9 December 1984, changed its health insurance premiums and coverage as of 1 January 1986, and established attendance standards and a progressive disciplinary system as of 1 March 1986. We find that the, Respondent, by committing these actions, has unlawfully refused to bargain in violation of Section 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW By establishing a layoff policy as of 18 March 1984, revising its leave-of-absence policy as of 10 Jame 1984, changing its long-term disability and life insurance plans as of 1 October 1984, changing its operating hours and day care service costs as of 1 November 1984, changing its sick leave policy as of 9 December 1984, changing its health insurance premiums and coverage as of 1 January 1986, and establishing attendance standards and a progressive disciplinary system as of 1 March 1986 without no- tifying the Union or bargaining with it, the Re- spondent 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 Section 8(a)(5) and'(1) of the Act, we shall order it to cease and desist, to bargain on request with the Union, to rescind all previous unilateral changes in its employees' terms and conditions of employment on the Union's request and, if an understanding is reached, to embody the understanding in a signed agreement. s ORDER The National Labor Relations Board orders that the Respondent, Bryan Memorial Hospital, Lin- coln, Nebraska, its officers, agents, successors, and assigns, shall 1. Cease and desist from s The General Counsel requests a visitatorial clause. Under the circum- stances of this case, we deny the General Counsel's request. 237 ja)- -Refusing to-,bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Nebraska Nurses Association affiliated with American Nurses Asso- ciation as the exclusive bargaining representative of its employees in the certified unit of nurses. (b) Making unilateral changes in the terms and conditions of employment of the bargaining unit employees. (c) In any like or, related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) On request, bargain with the Union as the ex- clusive representative of all employees in the afor- enamed appropriate unit 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 agreement. (b) On request of the Union, rescind the unilater- al changes made in the layoff policy, leave-of-ab- sence policy, long-term disability and life insurance plans, operating hours and day care service costs, sick leave policy, health insurance premiums and coverage, attendance standards, and disciplinary system for bargaining unit employees, (c) Make the unit employees whole for any losses they may have suffered as a result of, the uni- lateral changes in their terms and conditions of em- ployment, with interest to be computed in accord- ance with Florida Steel Corp., 231 NLRB 651 (1977). (d) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all 'other records necessary to analyze the amount of backpay due under the terms of this Order. (e) Post at its Lincoln, Nebraska facility copies of the attached notice marked "Appendix."s Copies of the notice, on forms provided by the Re- gional Director for Region 17, 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 8 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 Nation- al 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." 238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to ensure that the notices are not altered, defaced, or'covered by any other material. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent 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 ordered us to post and abide by this notice. WE WILL NOT refuse to bargain collectively con- cerning rates of pay, wages, hours, and other -terms and conditions of employment with Nebraska Nurses Association affiliated with American Nurses Association as the exclusive bargaining representa- tive of our employees in the certified bargaining unit of nurses. WE WILL NOT make unilateral changes in the terms and conditions of employment of the bar- gaining unit employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, bargain with the Union as the exclusive representative of all employees in the appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an agreement is reached, WE WILL embody such agreement in a signed contract. WE WILL, on request of the Union, rescind the unilateral changes made in the layoff policy, leave- of-absence policy, long-term disability and life in- surance plans, operating hours and day care service costs, sick leave policy, health insurance premiums and coverage, attendance standards, and discipli- nary system for bargaining unit employees. WE WILL make employees whole for any losses that they may have suffered as a result of the uni- lateral changes in the terms and conditions of em- ployment, plus interest. BRYAN MEMORIAL HOSPITAL