The Twin City Hospital Corp.

114 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The Twin City Hospital Corporation and Aluminum, Brick and Glass Workers, International Union, AFL-CIO Case 8-CA-20975 December 30, 1988 DECISION AND ORDER BY MEMBERS JOHANSEN, CRACRAFT, AND HIGGINS On July 1, 1988, the General Counsel of the Na- tional Labor Relations Board issued a complaint al leging 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 follow ing the Union's certification in Cases 8-RC-13686 and 8-RC-13687 (Official notice is taken of the "record" in the representation proceeding as de- fined in the Board's Rules and Regulations, Secs 102 68 and 102 69(g), Frontier Hotel, 265 NLRB 343 (1982)) On July 9, 1988, the Respondent filed an answer and, on August 19, 1988, an amended answer admitting in part and denying in part the allegations in the complaint On September 1, 1988, the General Counsel filed a Motion for Summary Judgment On September 6, 1988, 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 Counsel for the Gen- eral Counsel filed a response in opposition The National Labor Relations Board has delegat- ed its authority in this proceeding to a three member panel Ruling on Motion for Summary Judgment In its amended answer the Respondent admits its refusal to bargain, but attacks the validity of the certifications on the basis of the Regional Direc tor's unit determination in the representation pro- ceedings In its response to the General Counsel's motion, the Respondent avers that because one of the units in the underlying representation proceed ing is a unit of all professional employees, including registered nurses, the unit is now inappropriate in light of the Board's proposed rulemaking in the health care industry which proposes a separate unit for registered nurses 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), Sections 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 In fact, the Respondent filed a re quest for review to the Regional Director's Deci Sion and Direction of Election, contesting only the Regional Director's finding that certain of the Re- spondent's employees were professionals, the Re- spondent failed to contest in any way the Regional Director's unit scope findings, and is therefore pre cluded from doing so in this proceeding i The Re- spondent does not offer to adduce at a hearing any newly discovered and previously unavailable evi dence, nor does it allege any special circumstances that would require the Board to reexamine the de cision made in the representation proceeding We therefore find that the Respondent has not raised any issue that is properly litigable in this unfair labor practice proceeding 2 On the entire record, the Board makes the fol lowing FINDINGS OF FACT I JURISDICTION The Respondent, an Ohio corporation, has been engaged in the operation of a hospital at its facility in Dennison, Ohio, where it annually has derived gross revenues in excess of $250,000 and received materials valued in excess of $5000 directly from points outside the State of Ohio 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 elections held December 10 and 11, 1987, the Union was certified as the collective bargaining representative of the employees in the following appropriate units i Board s Rules and Regulations (1987) Sec 102 67(f) 2 Even assuming arguendo that Respondent had preserved the unit scope issue in the representation proceeding its argument would be re jected as totally lacking in merit The Board has proposed that its new rules be applied on a prospective basis applying only to decisions ren dered on or after the effective date of the rules See 53 Fed Reg 33900 33931 (1988) Member Johansen dissented there again indicating his dis agreement with rulemaking in regard to health care units See 53 Fed Reg at 33934 33935 Member Higgins was not a member of the Board at the time of the Board s decision on these rules He has not yet taken a position on the rulemaking for health care units In the meantime the Board continues to make unit determinations on a case by case basis utilizing existing disparity of interests criteria St Vincent Hospital & Health Center 285 NLRB 365 (1987) Under those criteria disparity is to be used to determine the appropriateness of a smaller unit it cannot be used by an employer to render a larger unit such as the all professional unit involved here inappropriate Bay Si Joseph Care Center 275 NLRB 1411 (1985) 292 NLRB No 21 TWIN CITY HOSPITAL CORP 115 Unit A (non-professional) All service, maintenance, technical and clerical employees, excluding day care employees, pro fessional employees, confidential employees, managerial employees and guards and supervi sors as defined in the Act Unit B (professional) All professional employees including regis tered nurses, medical technicians and medical laboratory technicians, excluding all guards and 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 April 29, 1988, the Respondent has refused to bargain with the Union We find that this refusal constitutes an unlawful refusal to bargain in viola- tion of Section 8(a)(5) and (1) of the Act CONCLUSIONS OF LAW By refusing on and after April 29, 1988, to bar- gain with the Union as the exclusive collective bar- gaining representative of employees in the appro- priate units, 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 certifications 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, The Twin City Hospital Corpora- tion, Dennison, Ohio, its officers, agents, succes- sors, and assigns, shall 1 Cease and desist from (a) Refusing to bargain with the Aluminum, Brick and Glass Workers, International Union, AFL-CIO as the exclusive bargaining representa tive of the employees in the bargaining units (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 units on terms and conditions of employment, and if an understanding is reached, embody the understanding in a signed agreement All service, maintenance, technical and clerical employees, excluding day care employees, pro- fessional employees, confidential employees, managerial employees and guards and supervi- sors as defined in the Act All professional employees, including regis- tered nurses, medical technicians and medical laboratory technicians, excluding all guards and supervisors as defined in the Act and all other employees (b) Post at its facility in Dennison, Ohio, copies of the attached notice marked "Appendix "3 Copies of the notice, on forms provided by the Re gional Director for Region 8, after being signed by the Respondent's authorized representative, shall be posted immediately upon receipt and maintained for 60 consecutive days in conspicuous places in- cluding 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 mate- rial (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply 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 a] 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 116 DECISIONS 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 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 the Alumi num, Brick and Glass Workers, International Union, 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 units All service, maintenance, technical and clerical employees, excluding day care employees, pro- fessional employees, confidential employees, managerial employees and guards and supervi sors as defined in the Act All professional employees including regis tered nurses, medical technicians and medical laboratory technicians , excluding all guards and supervisors as defined in the Act and all other employees THE TWIN CITY HOSPITAL CORPO RATION