Bristol Hospital EMS

354 NLRB No. 116 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Bristol Hospital EMS, LLC and International Associ- ation of EMTS and Paramedics SEIU/NAGE, Local 5000. Case 34–CA–12481 December 24, 2009 DECISION AND ORDER BY CHAIRMAN LIEBMAN AND MEMBER SCHAUMBER This is a refusal-to-bargain case in which the Respon- dent is contesting the Union’s certification as bargaining representative in the underlying representation proceed- ing. Pursuant to a charge filed on October 8, 2009, the General Counsel issued the complaint on October 15, 2009, 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 Union’s certification in Case 34–RC–2313. (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); Frontier Hotel, 265 NLRB 343 (1982).) The Respondent filed an answer admitting in part and denying in part the allegations in the complaint, and asserting affirmative defenses. On November 2, 2009, the General Counsel filed a Motion for Summary Judgment and Memorandum in Support of Motion. On November 6, 2009, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted.1 The Respondent filed a response. 1 On November 9, 2009, the Board issued an Order Correcting the Notice to Show Cause. Ruling on Motion for Summary Judgment2 The Respondent admits its refusal to bargain, but con- tests the validity of the certification on the basis of its objections to the election in the representation proceed- ing.3 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). Accor- dingly, we grant the Motion for Summary Judgment.4 On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a Connecticut corporation with a facility located in Bristol, Connecti- cut, has been engaged in the operation of providing am- bulance and medical transportation services. During the 12-month period ending September 30, 2009, the Respondent, in conducting its operations de- scribed above, derived gross revenues in excess of 2 Effective midnight December 28, 2007, Members Liebman, Schaumber, Kirsanow, and Walsh delegated to Members Liebman, Schaumber, and Kirsanow, as a three-member group, all of the Board’s powers in anticipation of the expiration of the terms of Members Kirsa- now and Walsh on December 31, 2007. Pursuant to this delegation, Chairman Liebman and Member Schaumber constitute a quorum of the three-member group. As a quorum, they have the authority to issue decisions and orders in unfair labor practice and representation cases. See Sec. 3(b) of the Act. See Narricot Industries, L.P. v. NLRB, ___ F.3d ___, 2009 WL 4016113 (4th Cir. Nov. 20, 2009); Snell Island SNF LLC v. NLRB, 568 F.3d 410 (2d Cir. 2009), petition for cert. filed 78 U.S.L.W. 3130 (U.S. Sept. 11, 2009) (No. 09-328); New Process Steel v. NLRB, 564 F.3d 840 (7th Cir. 2009), cert. granted ___ S.Ct. ___, 2009 WL 1468482 (U.S. Nov. 2, 2009); Northeastern Land Ser- vices v. NLRB, 560 F.3d 36 (1st Cir. 2009), petition for cert. filed 78 U.S.L.W. 3098 (U.S. Aug. 18, 2009) (No. 09-213); Teamsters Local 523 v. NLRB, ___ F.3d ___, 2009 WL 4912300 (10th Cir. Dec. 22, 2009). But see Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB, 564 F.3d 469 (D.C. Cir. 2009), petition for cert. filed 78 U.S.L.W. 3185 (U.S. Sept. 29, 2009) (No. 09-377). 3 In addition to denying that the Union’s certification was proper, the Respondent also contests the validity of the Union’s certification on the basis that the Board lacked a quorum on July 23, 2009, when it issued the Decision and Certification of Representative in the underlying representation case, Case 34–RC–3413. However, this defense is with- out merit for the reasons stated above in fn. 2. 4 Thus, we deny the Respondent’s requests that the Board dismiss the complaint or remand the proceeding for hearing. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 $500,000 and purchased and received at its facility goods valued in excess of $5000 directly from points outside the State of Connecticut. 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 that the Union, International Associa- tion of EMTs and Paramedics SEIU/NAGE, Local 5000, is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the representation election held on April 16, 2009, the Union was certified on July 23, 2009, as the exclusive collective-bargaining representative of the em- ployees in the following appropriate unit: All full-time and regular part-time EMT-P’s, EMT-I’s, EMT-Basics, Secretary III, and Wheel Chair Van At- tendants, employed by the Employer at its 371 Terry- ville Avenue, Bristol, Connecticut facility; but exclud- ing other office clerical employees, the EMS Education Coordinator, EMS Supervisors, the BLS instructor, all other employees, and all guards, professional em- ployees and supervisors as defined in the Act. The Union continues to be the exclusive collective- bargaining representative of the unit employees under Section 9(a) of the Act. B. Refusal to Bargain By letter dated September 16, 2009, the Union re- quested that the Respondent bargain collectively with the Union as the exclusive collective-bargaining representa- tive of the unit. Since about September 16, 2009, the Respondent has failed and refused to recognize and bar- gain with the Union as the exclusive collective- bargaining representative of the unit. We find that this failure and refusal constitutes an unlawful failure and refusal to bargain in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By refusing since about September 16, 2009, to recog- nize and bargain with the Union as the exclusive collec- tive-bargaining representative of employees in the ap- propriate unit, the Respondent has engaged in unfair la- bor 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 initial period of the certifi- cation 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, Bristol Hospital EMS, LLC, Bristol, Con- necticut, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to recognize and bargain with International Association of EMTs and Paramedics SEIU/NAGE, Local 5000, as the exclusive collective- bargaining representative of the employees in the bar- gaining unit. (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 collective-bargaining representative of the employees in the following 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 EMT-P’s, EMT-I’s, EMT-Basics, Secretary III, and Wheel Chair Van At- tendants, employed by the Employer at its 371 Terry- ville Avenue, Bristol, Connecticut facility; but exclud- ing other office clerical employees, the EMS Education Coordinator, EMS Supervisors, the BLS instructor, all other employees, and all guards, professional em- ployees and supervisors as defined in the Act. (b) Within 14 days after service by the Region, post at its facility in Bristol, Connecticut, copies of the attached notice marked “Appendix.”5 Copies of the notice, on 5 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.” BRISTOL HOSPITAL EMS 3 forms provided by the Regional Director for Region 34, after being signed by the Respondent’s authorized repre- sentative, shall be posted by the Respondent and main- tained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Res- pondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall dup- licate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since September 16, 2009. (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. Dated, Washington, D.C. December 24, 2009 ______________________________________ Wilma B. Liebman, Chairman ______________________________________ Peter C. Schaumber, Member (SEAL) 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 vi- olated 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 fail and refuse to recognize and bargain with International Association of EMTs and Paramedics SEIU/NAGE, Local 5000, as the exclusive collective- bargaining representative of the employees in the bar- gaining unit. 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 and put in writing and sign any agreement reached on terms and conditions of employment for our employees in the fol- lowing bargaining unit: All full-time and regular part-time EMT-P’s, EMT-I’s, EMT-Basics, Secretary III, and Wheel Chair Van At- tendants, employed by us at our 371 Terryville Avenue, Bristol, Connecticut facility; but excluding other office clerical employees, the EMS Education Coordinator, EMS Supervisors, the BLS instructor, all other em- ployees, and all guards, professional employees and supervisors as defined in the Act. BRISTOL HOSPITAL EMS, LLC