Fairmont General Hospital

348 NLRB No. 68 Fairmont General Hospital, Inc. and Retail, Whole- sale and Department Store Union Council, Local 550, United Food and Commercial Workers In- ternational Union. Case 6–CA–35297 October 31, 2006 DECISION AND ORDER BY MEMBERS LIEBMAN, SCHAUMBER, AND KIRSANOW This is a refusal-to-bargain case in which the Respon- dent is contesting the Board’s unit determination in the underlying representation proceeding. The Board in that proceeding clarified the bargaining unit to include em- ployees in the newly-created job classifications of occu- pational medicine assistant I and occupational medicine assistant II (OMAs). Pursuant to a charge filed on August 28, 2006, the General Counsel issued the complaint on September 8, 2006, alleging that the Respondent has violated Section 8(a)(5) and (1) of the Act by refusing the Union’s request to bargain following the Board’s clarification of the unit in Case 6–UC–472. (Official notice is taken of the “re- cord” in the representation proceeding as defined in the Board’s Rules and Regulations, Secs. 102.68 and 102.69(g); Frontier Hotel, 265 NLRB 343 (1982).) The Respondent filed an answer admitting in part and deny- ing in part the allegations in the complaint, and asserting affirmative defenses. On September 27, 2006, the General Counsel filed a Motion for Summary Judgment. On September 29, 2006, the Board issued an order transferring the proceed- ing 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 delegated its authority in this proceeding to a three-member panel. Ruling on Motion for Summary Judgment The Respondent admits its refusal to bargain, but con- tends that this refusal is not unlawful on the ground that the Board erred in clarifying the unit in the underlying representation proceeding to include the OMAs. All representation issues raised by the Respondent were or could have been litigated in the prior representa- tion proceeding. The Respondent does not offer to ad- duce at a hearing any newly discovered and previously unavailable evidence, nor does it allege any special cir- cumstances 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 un- fair labor practice proceeding. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accord- ingly, we grant the General Counsel’s Motion for Sum- mary Judgment.1 On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a corporation with an office and place of business in Fairmont, West Virginia (the Respondent’s facility), has been engaged in the operation of an acute care hospital providing inpa- tient and outpatient medical care. During the 12-month period ending July 31, 2006, the Respondent, in conducting its operations described above, derived gross revenues in excess of $250,000, and purchased and received at its Fairmont, West Virginia facility goods valued in excess of $50,000 directly from points outside the State of West Virginia. We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and is a health care institution within the meaning of Section 2(14) of the Act. In addition, we find that Retail, Wholesale and De- partment Store Union Council, United Food and Com- mercial Workers International Union, and its Local 550 (the Union) are labor organizations within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Union’s Representative Status At all material times, the Union has been the exclusive collective-bargaining representative of certain employees of the Respondent (the unit) and has been recognized as the representative by the Respondent.2 Such recognition has been embodied in successive collective-bargaining 1 In the underlying representation proceeding, the Board denied the Respondent’s request for review of the Regional Director’s decision clarifying the existing unit of nonprofessional employees to include the positions of occupational medicine assistant I and II. Member Schaumber dissented from the Board’s denial of the Re- spondent’s request for review. He would have granted review and reversed the Regional Director’s clarification of the unit. While Mem- ber Schaumber remains of that view, he agrees that the Respondent has not presented any new matters that are properly litigable in this unfair labor practice case. See Pittsburgh Plate Glass Co. v. NLRB, supra. In light of this, and for institutional reasons, Member Schaumber agrees with the decision to grant the General Counsel’s Motion for Summary Judgment. 2 The parties stipulated in the the underlying representation proceed- ing that the Union was certified as the collective-bargaining representa- tive of a unit of nonprofessional employees in about 1965. The Re- gional Director noted in his decision clarifying the bargaining unit that the Regional Office records do not reflect such a certification by the Region. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 agreements, the most recent of which is effective by its terms from July 1, 2006 through June 30, 2009.3 On December 21, 2005, the unit was clarified by the Regional Director in Case 6–UC–472 to include employ- ees in the job classifications of occupational medicine assistant I and occupational medicine assistant II. On June 7, 2006, the Board denied the Respondent’s request for review of the Regional Director’s decision. The unit, as set forth in the collective-bargaining agreement, and as clarified by the Decision, Order and Clarification of Bargaining Unit in Case 6–UC–472 (the clarified unit), constitutes an appropriate unit for the pur- poses of collective bargaining within the meaning of Sec- tion 9(b) of the Act. At all material times, based on Section 9(a) of the Act, the Union has been the exclusive collective-bargaining representative of the clarified unit. B. Refusal to Bargain On or about August 3 and August 14, 2006, the Union, by letters, requested that the Respondent recognize and bargain with it as the exclusive collective-bargaining representative of the clarified unit. Since on or about August 7, 2006, the Respondent, by letter, has failed and refused to recognize and bargain with the Union as the representative of the clarified unit. We find that this re- fusal constitutes an unlawful refusal to bargain in viola- tion of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By failing and refusing on or about August 7, 2006 to rec- ognize and bargain with the Union as the exclusive collec- tive-bargaining representative of employees in the job clas- sifications of occupational medicine assistant I and occupa- tional medicine assistant II who were the subject of the Re- gional Director’s unit clarification decision, 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. 3 The unit, as set forth in the parties’ collective-bargaining agree- ment, is: All the part-time and full-time nonprofessional employees in the fol- lowing Hospital departments: Nutrition Services, Engineering, Laun- dry, Guest Services, X-Ray, Clinical Laboratory, Medical Records, Central Supply, and Patient Services. There is excepted from the above departments all clerical and administrative employees, other than ward secretaries, and all clerical employees (except in the Medi- cal Records department); all department heads and their assistants; student employees; and supervisors. The term “nonprofessional employees” is intended to exclude those whose occupations require a course of study or an extensive technical training course or apprenticeship, such as laboratory technicians, regis- tered or licensed practical nurses, or dieticians. 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 as the exclu- sive bargaining representative of the clarified unit and, if an understanding is reached, to embody the understand- ing in a signed agreement. ORDER The National Labor Relations Board orders that the Respondent, Fairmont General Hospital, Inc., Fairmont, West Virginia, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Refusing to bargain with Retail, Wholesale and Department Store Union Council, Local 550, United Food and Commercial Workers International Union as the exclusive representative of the employees in the oc- cupational medicine assistant I and occupational medi- cine assistant II positions as part of the existing bargain- ing unit of nonprofessional employees. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request, bargain with the Union as the exclusive representative of the employees in the occupational medicine assistant I and occupational medicine assistant II positions as part of the existing unit of nonprofessional employees on terms and conditions of employment and, if an understanding is reached, embody the understand- ing in a signed agreement. (b) Within 14 days after service by the Region, post at its facility in Fairmont, West Virginia, copies of the at- tached notice marked “Appendix.”4 Copies of the notice, on forms provided by the Regional Director for Region 6, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent 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 al- tered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facil- ity involved in these proceedings, the Respondent shall 4 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 Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” FAIRMONT GENERAL HOSPITAL, INC. 3 duplicate and mail, at its own expense, a copy of the no- tice to all current employees and former employees em- ployed by the Respondent at any time since August 7, 2006. (c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that 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 vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT refuse to bargain with Retail, Wholesale and Department Store Union Council, Local 550, United Food and Commercial Workers International Union, as the exclusive representative of the employees in the oc- cupational medicine assistant I and occupational medi- cine assistant II positions as part of the existing bargain- ing unit of nonprofessional employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, bargain with the Union as the exclusive representative of our employees in the occupa- tional medicine assistant I and occupational medicine assistant II positions as part of the existing unit of non- professional employees on terms and conditions of em- ployment and, if an understanding is reached, embody the understanding in a signed agreement. FAIRMONT GENERAL HOSPITAL, INC.