Princeton Health Care Center

PRINCETON HEALTH CARE CENTER 107 Princeton Memorial Hospital d/b/a Princeton Health Care Center and District 1199, WV/KY/OH National Union of Hospitals and Health Care Employees, AFL-CIO. Case 11- CA-13777 July 17, 1990 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On April 10, 1990, the General Counsel of the National Labor Relations Board issued a complaint 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 follow- ing the Union's certification in Case 9-RC-14396 (Official notice is taken of the "record" in the rep- resentation proceeding as defined in the Board's Rules and Regulations, Secs 102 68 and 102 69(g), Frontier Hotel, 265 NLRB 343 (1982) ) The Re- spondent filed its answer admitting in part and de- nying in part the allegations in the complaint On May 14, 1990, the General Counsel filed a Motion to Strike Portions of Respondent's Answer to Complaint and Motion for Summary Judgment On May 17, 1990, the Board issued an order trans- ferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted The Respondent has filed a motion in op- position seeking the denial of the General Counsel's motion and requesting dismissal of the complaint, and a response to the Notice to Show Cause seek- ing denial of the General Counsel's motion 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 answer the Respondent admits its refusal to bargain but attacks the validity of the certification on the ground that the Board lacks jurisdiction over the Respondent The Respondent renews its attack on the Board's jurisdiction in its motion in opposition and argues that the complaint is harass- ing inasmuch as it raises nothing that was not liti- gated in an unspecified matter in the Fourth Cir- cuit The Respondent is presumably referring to the underlying representation case (9-RC-14396), which was consolidated with an unfair labor prac- tice complaint to resolve the jurisdictional issue' 'The Board asserted jurisdiction over the Respondent in Princeton Health Care Center, 285 NLRB 1016 (1987), and 294 NLRB 640 (1989) Member Devaney did not participate in the Board's pnor decisions in- volving the Respondent All representation issues raised by the Respond- ent were or could have been litigated in the prior representation proceeding The Respondent does not offer to adduce at a hearing any newly discov- ered and previously unavailable evidence In its motion in opposition the Respondent affirmatively states that this current complaint raises nothing that was not litigated in the underlying representation case, which had been consolidated with an unfair labor practice complaint Nor does Respondent allege any special circumstances 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 unfair labor practice proceeding See Pittsburgh Plate Glass Co v NLRB, 313 U S 146, 162 (1941) Accordingly, we grant the Motion for Summary Judgment 2 On the entire record, the Board makes the fol- lowing FINDINGS OF FACT I JURISDICTION The Respondent, Princeton Memorial Hospital d/b/a Princeton Health Care Center, a West Vir- ginia corporation, is engaged in the operation of a nursing home at its facility in Princeton, West Vir- ginia, where it annually derives gross revenues in excess of $100,000 and receives goods valued in excess of $5000 directly from points outside the State of West Virginia We find that the Respond- ent 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 August 21, 1984, the Union was certified December 3, 1987, as the col- lective-bargaining representative of the employees in the following appropriate unit All full-time and regular part-time non-super- visory service and maintenance employees, in- cluding nurse technicians, orderlies, house- keeping employees, dietary employees, laundry employees, restorative aides and activities aides, but excluding all technical employees, business office clerical employees, managerial employees, registered nurses, licensed practical 2 Inasmuch as we are granting the General Counsel's Motion for Sum- mary Judgment, we deny his motion to strike portions of the Respond- ent's answer We also deny the Respondent's motion to dismiss the com- plaint 299 NLRB No 16 108 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD nurses, and all other professional employees, guards and supervisors as defined in the Act. The Union continues to .be the exclusive represent- ative under Section 9(a) of the Act. - B. Refusal to Bargain Commencing on or about August 21, 1984, and continuing to date, the Union has requested, and did specifically request in writing on November 15, 1989, that the Respondent bargain, and, since on or about August 21, 1984, and at all times thereafter, notwithstanding the Union's written request of No- vember 15, 1989, 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. CONCLUSION OF LAW By refusing to bargain with the Union as the ex- clusive collective-bargaining representative of em- ployees in the appropriate unit, the Respondent has engaged in unfair labor practices affecting com- merce 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 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, Princeton Memorial Hospital d/b/a Princeton Health Care Center, Princeton, West Virginia, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with District 1199, WV/KY/OH National Union of Hospitals and Health Care Employees, AFL-CIO as the exclu- sive 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 non-super- visory service and maintenance employees, in- cluding nurse technicians, orderlies, house- keeping employees, dietary employees, laundry employees, restorative aides and activities aides, but excluding all technical employees, business office clerical employees, managerial employees, registered nurses, licensed practical nurses, and all other professional employees, guards and supervisors as defined in the Act. (b) Post at its facility in Princeton, West Virgin- ia, copies of the attached notice marked "Appen- dix." 3 Copies of the notice, on forms provided by the Regional Director for Region 11, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediate- ly 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 STEPHENS, dissenting. I would deny the Motion for Summary Judg- ment on the ground that issues going to the Board's subject matter jurisdiction are unresolved. See my dissenting opinion at 294 NLRB 640 (1989). 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." PRINCETON HEALTH CARE CENTER 109 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 District 1199, WV/KY/OH National Umon of Hospitals and Health Care Employees, AFL-CIO, as the ex- clusive representative of the employees m the bar- gaining 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 non-super- visory service and maintenance employees, in- cluding nurse techmcians, orderlies, restorative aides and activities aides, but excluding all technical employees, business office clerical employees, managerial employees, registered nurses, licensed practical nurses, and all other professional employees, guards and supervisors as defined in the Act PRINCETON MEMORIAL HOSPITAL D/B/A PRINCETON HEALTH CARE CENTER