St. Anthony Hospital Systems

790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD St. Anthony Hospital Systems and St. Anthony Fed- eration of Nurses and Health Professionals AFT/FNHP, CFT, AFL-CIO. Case 27-CA- 6947 22 January 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON Upon a charge filed by the Union 3 October 1980, the General Counsel of the National Labor Relations Board issued a complaint 22 October 1980 against St. Anthony Hospital Systems, 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 21 August 1980, following a Board election in Case 27-RC-5975, the Union was certified as the exclusive collective- bargaining representative of the Respondent's em- ployees in the unit found appropriate. (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), amended Sept. 9, 1981, 46 Fed.Reg. 45922 (1981); Frontier Hotel, 265 NLRB 343 (1982).) The complaint fur- ther alleges that since 2 October 1980 the Respond- ent has refused to bargain with the Union. On 30 October 1980, the Respondent filed its answer ad- mitting in part and denying in part the allegations in the complaint. On 25 January 1982 the General Counsel filed a Motion for Summary Judgment. On 2 February 1982 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 and the Charging Party filed re- sponses. On 24 August 1984 the Board denied the Motion for Summary Judgment and remanded this pro- ceeding to the Regional Director for further con- sideration consistent with the Decision and Order in St. Francis Hospital, 271 NLRB 948 (1984). On 5 November 1985 the Regional Director issued an order reopening the record and notice of hearing. On 20 March 1986 the Regional Director issued a Supplemental Decision and Order reaffirming his previous Decision and Order. On 16 April 1986 the Respondent filed a request for review of the Regional Director's Supplemental Decision and Order. On 8 May 1986 the Board denied the Respondent's request for review. About 18 June 1986 the Respondent refused to bargain with the Union. On 10 July 1986 the Gen- eral Counsel filed a Motion for Summary Judg- 282 NLRB No. 116 ment. On 16 July 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 Respondent 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 30 October 1980 answer admits its refusal to bargain but denies that such conduct is an unfair labor practice. The General Counsel argues that all material issues have been previously decided. We agree with the General Counsel. The record, including the record in Case 27- RC-5975, reveals that an election was held on 16 April 1980 pursuant to a directed election. The tally of ballots shows that of approximately 327 eli- gible voters, 147 cast valid ballots for and 129 against the Union; there were 12 challenged bal- lots, an insufficient number to affect the results of the election. After conducting a hearing on the Re- spondent's objections, the Regional Director on 2 June 1980 issued his report recommending that the objections be overruled and that the Union be cer- tified. The Respondent filed exceptions. On 21 August 1980 the Board adopted the recommenda- tion and certified the Union as the exclusive bar- gaining representative of the employees in the unit. I Since about 1 September 1980 the Union has re- quested the Respondent to bargain. Since about 2 October 1980 the Respondent refused to bargain collectively with the Union and has failed and re- fused to meet and bargain with the Union concern- ing wages, hours, and other terms and conditions of employment. It is well settled that in the absence of newly dis- covered and 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 that were or could have been litigated in a prior representation proceeding. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941); Secs. 102.67(f) and 102.69(c) of the Board's Rules and Regulations. All issues raised by the Respondent were or could have been litigated in the prior representa- tion proceeding. The Respondent does not offer to adduce at a hearing any newly discovered and pre- viously unavailable evidence, nor does it allege any 1 In a Supplemental Decision and Order issued on 20 March 1986 the Regional Director reaffirmed the 1980 certification. The Respondent filed a request for review of this Supplemental Decision and Order which was denied by the Board on 8 May 1986. ST. ANTHONY HOSPITAL SYSTEMS special circumstances that would require the-Board to reexamine the decision made in the representa- tion proceeding.2 We therefore find that the Re- spondent has not raised any issue that is properly litigable in this unfair labor practice proceeding. Accordingly - we grant the Motion for Summary Judgment. - On the entire record,- the Board makes the fol- lowing' FINDINGS OF FACT 1. JURISDICTION Respondent is a Colorado corporation engaged in the operation of an 'acute care hospital system, including two, facilities in the -Denver, Colorado metropolitan area, where it annually purchases and receives goods and materials valued in excess of $50,000 directly from sources located outside the State of Colorado, and annually derives gross reve- nues in excess of $500,000. We find that the Re- spondent 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 16 April 1980, the Union was certified as the collective-bargaining representative of the employees in the following appropriate unit: All full-time and regular part-time technical employees employed by the Employer at its St. Anthony Central and St. Anthony North facilities, including licensed practical nurses, critical care licensed practical nurses, schedul- ing nurses (LPN), critical care technicians (EMT), critical - care technicians, dental assist- ants, medical technicians, respiratory rehabili- tation technicians, surgical technicians, ortho- 2 The Respondent argues that the Board has issued two conflicting de- cisions regarding the status of the radiology technologists. We disagree. In 1980, after a hearing, the Regional Director determined in the under- lying representation case that the radiology technologists were technical employees and eligible to vote in the election. The Respondent's request for review on this and other issues was denied. Although in September 1985 the Board allowed the radiology technologists to vote subject to challenge in the professional unit election in Case 27-RC-5914, which the Union lost, the Board's administrative action did not constitute a de- termination that the radiology technologists were professional employees. Further, as noted above, in March 1986 the Regional Director reaffirmed the Union's 1980 certification in the underlying representation case herein. The Respondent's request for review, which did not assert any new evidence as to the alleged professional status of the radiology tech- nologists, was denied Thus, the Board has never determined that the ra- diology technologists are professionals , and the Regional Director's 1980 determination that the radiology technologists are technicals remains valid. 791 Vedic technicians, laboratory assistants (phle- botomist), EKG technicians, pharmacy techni- cians, pulmonary function technicians, instru- ment technicians, orthopedic cast technicians, gastroenterology technicians, radiology tech- nologists, EEG technicians, respiratory ther- apy technician I, respiratory therapy techni- cian II, respiratory therapy technician III, reg- istered respiratory therapist I, registered respi- ratory therapist II, registered respiratory ther- apist III (clinician), graduate respiratory thera- -pist,, ophthalmology technologist, and hstolo- gy technologist; but excluding confidential em- ployees, business office clerical employees, office clerical employees, guards, managers, 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 Since 1 September 1980, the Union has requested the Respondent to bargain, and since 2 October 1980, 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. CONCLUSIONS OF LAW By refusing on and after 2 October 1980 to bar- gain with the Union as the exclusive collective-bar- gaining representative of employees in the appro- priate unit, the Respondent has engaged in unfair labor practices -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 law, we shall construe the ini- tial period of the certification as beginning the date the Respondent begins to bargain in good faith with the Union. Mar-Jac Poultry Co., 136 NTLRB 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). 792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER The National Labor Relations Board orders that the Respondent, St. Anthony Hospital Systems, Denver, Colorado, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with St. Anthony Feder- ation of Nurses and Health Professionals AFT/FNHP, CFT, AFL-CIO 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 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 the employees in the fol- lowing 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 technical employees employed by the Employer at its St. Anthony Central and St. Anthony North facilities, including licensed practical nurses, critical care licensed practical nurses, schedul- ing nurses (LPN), critical care technicians (EMT), critical care technicians, dental assist- ants, medical technicians, respiratory rehabili- tation technicians, surgical technicians, ortho- pedic technicians, laboratory assistants (phle- botomist), EKG technicians, pharmacy techni- cians, pulmonary function technicians, instru- ment technicians, orthopedic cast technicians, gastroenterology technicians, radiology 'tech- nologists, EEG technicians, respiratory ther- apy techician I, respiratory therapy technician II, respiratory therapy technician III, regis- tered respiratory therapist I, registered respira- tory therapist, II, registered respiratory thera- pist III (clinician), graduate respiratory thera- pist, ophthalmology technologist, and histolo- gy technologist; but excluding confidential em- ployees, business office clerical employees, office clerical employees, guards, managers, supervisors as defined in the Act, and all other employees. (b) Post at its facilities in Denver, Colorado, copies of the attached notice marked "Appendix."3 3 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." Copies of the notice, on forms provided by the Re- gional Director for Region 27, 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 has taken to comply. CHAIRMAN DOTSON, dissenting. In my view a hearing is required as to the cor- rect unit placement of the radiology technologists. Therefore, I would deny the General Counsel's Motion for Summary Judgment. 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 St. Antho- ny Federation of Nurses and Health Professionals AFT/FNHP, CFT, 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 exer- cise 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 technical employees employed by the Employer at its St. Anthony Central and St. Anthony North facilities, including licensed practical nurses, critical care licensed practical nurses, schedul- ing nurses (LPN), critical care technicians (EMT), critical care technicians , dental assist- ants, medical technicians, respiratory rehabili- tation technicians, surgical technicians, ortho- pedic technicians, laboratory assistants (phle- botomist), EKG technicians, pharmacy techni- cians, pulmonary function technicians, instru- ment technicians, orthopedic cast technicians, ST. ANTHONY HOSPITAL SYSTEMS gastroenterology technicians, radiology, tech- nologists, EEG technicians,' respiratory ther- apy technician I, respiratory therapy techni- cian II, respiratory therapy technician III, reg- istered respiratory 'therapist I, registered respi- ratory therapist II, registered respiratory ther- apist III (clinician), graduate respiratory thera- pist, ophthalmology technologist, and histolo- 793 gy technologist; but excluding confidential em= ployees, business office clerical employees, office clerical employees, guards, managers, supervisors as defined in the Act, and all other employees. ST. ANTHONY HOSPITAL SYSTEMS