Princeton Health Care Center

640 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Princeton Memorial Hospital d/b/a Princeton Health Care Center and District 1199, WV/KY/OH National Union of Hospital and Health Care Employees, AFL-CIO and Lor- raine R. Agee. Cases 9-CA-21252-1, -2, -4, 9- CA-21516-1, -2, 9-CA-21495 , and 9-RC- 14396 May 31, 1989 SUPPLEMENTAL DECISION AND ORDER ON REMAND BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On September 23, 1987, the Board issued a Deci- sion and Order' finding that the Respondent violat- ed Section 8(a)(1) and (3) of the Act. Thereafter, the Board filed a petition for enforcement with the United States Court of Appeals for the Fourth Cir- cuit. On July 11, 1988, the Respondent filed with the Board a motion to reconsider order. The Board's Deputy Executive Secretary dismissed the motion, stating that the Board lacked jurisdiction over the case because it was then pending before the court. On July 19, 1988, the Respondent filed a motion to remand with the court in which it requested the court to remand the case to the Board with direc- tions "that it reconsider its Order and determine whether or not it does, in fact, have jurisdiction over Respondent in light of the modification in Re- spondent's business effective July 1, 1988." On July 22, 1988, the General Counsel filed with the court the Board's response to the Respondent's motion in which it said "the Board does not object to this Court's remanding the record to the Board so that the Board is not precluded from having an opportunity to consider a motion for reconsider- ation filed by the Respondent." On August 10, 1988, the court issued an order remanding the case to the Board for further pro- ceedings. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. We have accepted the court's remand and exam- ined the Respondent's previously filed motion to reconsider and its contention that its new manage- ment agreement with Princeton Community Hospi- tal, an alleged political subdivision within Section 2(2) of the Act, has deprived the Board of jurisdic- tion over it. We have determined not to remand this case for further proceedings on the Respondent's claim of changed circumstances affecting the Board's juris- 1 285 NLRB 1016 diction. Rather, for the following reasons; we will continue to assert jurisdiction over the Respondent in this proceeding and will reaffirm the Order that the Board earlier entered at 285 NLRB 1016. It is clear that the Board has statutory jurisdic- tion over the Respondent. The claim of changed circumstances that the Respondent raises implicates the Board's discretionary jurisdiction.2 In certain circumstances, where the Board's statutory juris- diction is established, the Board has indicated that it will assert jurisdiction without regard to whether any of its discretionary standards for asserting ju- risdiction have been met. Most notable in that regard for purposes of this case is the precedent dealing with alleged violations of Section 8(a)(4) of the Act.3 In those cases, the Board has indicated that [w]here . . . the substantive allegations of the complaint charge interference with the statuto- ry right of an individual to resort to the Board's processes, public policy requires that the Board exercise its jurisdiction to the fullest extent.4 While we do not deal here with any 8(a)(4) allega- tions, we do have similar public policy concerns implicated because we deal here with a duly-en- tered Board Order. That Order indicates the Board's determination that at the time of the unfair labor practices the Respondent was subject to the Board's jurisdiction. Now, the Respondent claims that due to alleged changed circumstances, some 8 months after the Board's Order, the Board has no jurisdiction over it for purposes of this case. We reject that argument. It is clear that we do have statutory jurisdiction over the Respondent and that we had discretionary jurisdiction over the Re- spondent at the time of the unfair labor practices and the time of our Order; therefore, we will con- tinue to assert jurisdiction over the Respondent for the purposes of enforcing, and ensuring compliance with, the Order already entered. Our conviction that this is the proper approach in this case is reinforced by a review of certain facts. At the time of the unfair labor practices in this case, the Respondent did not contest the Board's jurisdiction over it but, in fact, had assent- ed to it. Thus, in December 1983, the Respondent and the Union entered into a Stipulation for Certifi- cation Upon Consent Election. Elections were then held in January and August 1984, the August elec- tion being won by the Union. The Respondent 2 See Springfield Transit Management, 281 NLRB 72 fn 1 (1986) s See, e g, Nutmeg Coal Co, 224 NLRB 1098 (1976) 4 Stage Employees IATSE Local 307 (Velto Iacobucci), 159 NLRB 1614 fn 3 (1966) 294 NLRB No. 47 PRINCETON HEALTH CARE CENTER filed objections to the election, which a hearing of- ficer recommended be overruled in November 1984, and the Respondent filed exceptions to the hearing officer's report in November 1984. It was not until January 1985, while exceptions to that report were pending, that the Respondent contest- ed the Board's jurisdiction. Although it then did so based in part on events that predated the unfair labor practices involved in this proceeding, it is clear that when it committed those unfair labor practices in August-October 1984, it did not contest the Board's jurisdiction. Therefore, employees en- gaged in union activity at that time acted under an assumption-not challenged by the Respondent but indeed conceded by its signing the stipulation for election and by its participation in the election process and endorsed by the Board's participation in that process-that they were covered under the Act. In a sufficiently similar situation,s the Board asserted jurisdiction in the face of a claim that the Board no longer had jurisdiction over the employ- er.6 For all the above reasons, we will continue to 5 See Children's Baptist Home of Southern California, 215 NLRB 303 (1974), enfd 567 F 2d 256 (9th Cir 1978) 6 In Children's Baptist Home, the employer in a representation proceed- ing had initially argued that it was not subject to the Board 's discretion- ary jurisdiction The Acting Regional Director rejected that claim and asserted jurisdiction The employer did not file a request for review Thereafter, the employer fired a number of employees and the Regional Director issued a complaint alleging that the discharges were because of the employees' union activities Then the Board issued Ming Quong Chil- dren's Center, 210 NLRB 899 (1974), declining to assert discretionary ju- risdiction over nonprofit charitable organizations and the employer filed a motion to dismiss the complaint arguing that , under Ming Quong, it no longer was subject to the Board's jurisdiction An administrative law judge granted the motion but the Board reversed for two reasons It noted first that the employer had failed to file a request for review of the earlier decision asserting jurisdiction Second, it noted that the employees had engaged in union activities on the express assurances of the union that the Board by its decision in the representation case had asserted ju- risdiction over the employer In these circumstances, the Board agreed that "it would be unconscionable for the Board now to turn its back on these employees by declining to afford them the protections of the Act which the Board led them to believe they enjoyed " 215 NLRB at 303- 304 641 assert jurisdiction over the Respondent in this pro- ceeding. ORDER The National Labor Relations Board affirms its Decision and Order at 285 NLRB 1016 (1987), and orders that the Respondent, Princeton Memorial Hospital Co., d/b/a Princeton Health Care Center, Princeton, West Virginia, its officers, agents, suc- cessors, and assigns, shall take the action it sets forth. CHAIRMAN STEPHENS, dissenting. As explained in my dissent in Res-Care, Inc., 280 NLRB 670, 675 (1986), I regard it to be a question of statutory, not discretionary, jurisdiction whether the control of a Section 2(2) exempt entity over an employer's labor relations is sufficient to make the Act inapplicable to the employment relationship. Because matters going to the Board's subject matter jurisdiction under the Act may be raised at any time, I would remand for a determination of the character of PCH and, if it is found to be an exempt entity, a further determination concerning the extent of its control over the working condi- tions of the unit employees at issue here. Children's Baptist Home and this case share the theme that when the employees in each case were the subject of unfair labor practices, all par- ties had indicated by their various actions that the Board had jurisdiction over the employer involved In such circumstances, it would be inequita- ble to foreclose the Board's jurisdiction to remedy the Respondent's unfair labor practices because of events that occurred almost 4 years after the unfair labor practices were committed Member Cracraft finds it unnecessary to review the Respondent's prof- fered evidence to determine whether it, in fact, establishes any changed circumstances warranting a reversal of the Board's earlier assertion of ju- risdiction Member Johansen additionally finds that even if Princeton Community Hospital is a political subdivision , the Board is not precluded from assert- ing jurisdiction over the Respondent Because the Respondent retains control of its own labor relations policies, the Board, in Member Johan- sen's view, may properly continue to assert jurisdiction over the Re- spondent