St. Anthony Hospital Systems

DECISIONS OF NATIONAL LABOR RELATIONS BOARD St. Anthony Hospital Systems and St. Anthony Fed- eration of Nurses and Health Professionals AFT/FNHP, CFT, AFL-CIO. Case 27-CA- 6723 September 9, 1980 DECISION AND ORDER Upon a charge filed on May 13, 1980, by St. An- thony Federation of Nurses and Health Profession- als AFT/FNHP, CFT, AFL-CIO, herein called the Union, and duly served on St. Anthony Hospi- tal Systems, herein called Respondent, the General Counsel of the National Labor Relations Board, by the Acting Regional Director for Region 27, issued a complaint and notice of hearing on June 6, 1980, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor prac- tices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge and complaint and notice of hearing before an administrative law judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that on January 31, 1980, following a Board election in Case 27-RC- 5914, the Union was duly certified as the exclusive collective-bargaining representative of Respond- ent's employees in the unit found appropriate;' and that, commencing on or about May 9, 1980, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining repre- sentative, although the Union has requested and is requesting it to do so. On June 12, 1980, Respond- ent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. Respondent admits that it meets the Board's jurisdictional standards, but denies that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and a health care institution within the meaning of Section 2(14) of the Act. Respondent denies that the Union is a labor organization within the mean- ing of Section 2(5) of the Act, and denies that the following is an appropriate unit for collective bar- gaining within the meaning of Section 9(b) of the Act: I Official notice is taken of the record in the representation proceed- ing, Case 27-RC-5914, as the term "record" is defined in Secs. 102.68 and 102.69(g) of the Board's Rules and Regulations, Series 8., as amended. See L7V Electrosystems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (4th Cir. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26 (5th Cir. 1969); Interrype Co. v. Penello, 269 F.Supp. 573 (D.C.Va. 1967); Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968); Sec. 9(d) of the NLRB, as amended. 252 NLRB No. 12 All full-time and regular part-time registered nurses employed by Respondent at its St. An- thony Central and St. Anthony North facili- ties, but excluding the director of nursing serv- ices, associate director of nursing services, di- rector of patient care services for the North facility, shift operation managers, nursing serv- ices supervisors and all other employees, guards and supervisors as defined by the Act. Respondent also denies that the Union has been, at all times since January 23, 1980, and is now, the ex- clusive representative of all employees in the unit described above, but admits that on January 31, 1980, the Regional Director for Region 27 certified the Union as the exclusive collective-bargaining representative of all employees in said unit. Re- spondent admits the allegation that it refused, and continues to refuse, to meet and bargain with the Union as the collective-bargaining representative, but denies the conclusory 8(a)(5) and (1) allega- tions. It alleges that it is not an employer covered by the National Labor Relations Act in that it is an exempt religious organization not covered by the terms of the Act, and further that the Act cannot under the first amendment constitutionally reach Respondent. On July 2, 1980, counsel for the General Counsel filed directly with the Board a Motion for Sum- mary Judgment. Subsequently, on July 9, 1980, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judg- ment should not be granted. Respondent thereafter filed a response to Notice To Show Cause. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment In its response to the motion and its answer to the complaint, Respondent attacks the Union's cer- tification on the grounds that the Union is not a labor organization within the meaning of the Act, that the unit is inappropriate and results in an undue proliferation of bargaining units, and that the Board lacks jurisdiction over Respondent. Review of the record herein reveals that in Case 27-RC-5914 the petition was filed by the Union on September 4, 1979, and an amended petition was filed on September 25, 1979. On December 17, 1979, the Regional Director issued his Decision and Direction of Election in which he found, inter alia, that the Union was a labor organization within the meaning of Section 2(5) of the Act, and that the petitioned-for unit was an appropriate unit for collective bargaining. With regard to Respondent's 50 ST. ANTHONY HOSPITAL SYSTEMS contention that the unit was inappropriate, the Re- gional Director noted that the Board had held that a unit restricted to registered nurses was a pre- sumptively appropriate one, citing Mercy Hospitals of Sacramento, Inc., 217 NLRB 765 (1975). Howev- er, the Regional Director further noted that in N.L.R.B. v. St. Francis Hospital of Lynwood, a Cor- poration, 601 F.2d 404 (9th Cir. 1979), the court held that any such presumption could not be irre- buttable. Accordingly, the Regional Director re- ceived, and considered, evidence presented by Re- spondent as to the appropriateness of the peti- tioned-for unit. While recognizing that a degree of broad commonality would favor a larger unit of all professional employees, the Regional Director found a lack of functional interchange of responsi- bility or duties between registered nurses and other professional employees, found that registered nurses must comply with separate educational and licensing requirements, and found that contacts be- tween registered nurses and other professional em- ployees were limited and of a routine nature. After considering Respondent's asserted evidence as to the unit scope issue, the Regional Director con- cluded that the requested unit of registered nurses was an appropriate unit for collective bargaining. On or about January 2, 1980, Respondent filed a request for review of the Regional Director's Deci- sion and Direction of Election, which was denied by the Board on January 22, 1980, as it raised no substantial issues warranting review.2 The election was held on January 23, 1980. At the conclusion of the balloting, the tally revealed that 310 votes had been cast for the Union, 15 votes had been cast for the Intervenor,3 and 172 votes had been cast against the participating labor organizations. There were 35 challenged ballots, an insufficient number to affect the results. On January 31, 1980, the Re- gional Director certified the Union as the exclusive collective-bargaining representative of the employ- ees in the unit found appropriate. Following a request by the Union on or about April 2, 1980, that Respondent engage in collec- tive-bargaining negotiations with the Union, Re- spondent, by letter dated May 9, 1980, refused to recognize and bargain in good faith with the Union as the exclusive bargaining representative of its em- ployees in the certified unit. It is well settled that in the absence of newly dis- covered or previously unavailable evidence or spe- cial circumstances a respondent in a proceeding al- leging a violation of Section 8(a)(5) is not entitled I We reaffirm the Regional Director's finding that, based upon the evi- dence adduced in Case 27-RC-5914, the petitioned-for unit is appropri- ate. See Newton-Wellesley Hospital, 250 NLRB No. 86 (1980) a Colorado Nurses Association, Affiliate of the American Nurses Asso- ciation. to relitigate issues which were or could have been litigated in a prior representation proceeding.4 All issues raised by Respondent in this proceed- ing were or could have been litigated in the prior representation proceeding, 5 and Respondent does not offer to adduce at a hearing any newly discov- ered or previously unavailable evidence, nor does it allege that any special circumstances exist herein which would require the Board to reexamine the decision made in the representation proceeding. We therefore find that Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. Accordingly, we grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent is a Colorado corporation engaged in the operation of an acute care hospital system, including two facilities in the Denver, Colorado, metropolitan area. In the course of its business op- erations within the State of Colorado, Respondent annually purchases and receives goods and materi- als valued in excess of $50,000 directly from sources located outside the State of Colorado, and annually derives gross revenues in excess of $500,000. We find, on the basis of the foregoing, that Re- spondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED St. Anthony Federation of Nurses and Health Professionals AFT/FNHP, CFT, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of Respondent consti- tute a unit appropriate for collective-bargaining 4 See Pittsburgh Plate Glass Co. v. N.LR.B., 313 U.S. 146. 162 (1941); Rules and Regulations of the Board, Secs 102.67(0 and 102 69(c) 5 In its response to the motion and its answer to the complaint, Re- spondent also argues. for the first time, that the Board lacks jurisdiction over its operations. We find this assertion without merit. Bon Secours Hospital. Inc., 248 NLRB 115 (1980); Mid .4merican Health Services. Inc., 247 NLRB No. 109 (1980) 51 DECISIONS OF NATIONAL LABOR RELATIONS BOARD purposes within the meaning of Section 9(b) of the Act: All full-time and regular part-time registered nurses employed by Respondent at its St. An- thony Central and St. Anthony North facili- ties, but excluding the director of nursing serv- ices, associate director of nursing services, di- rector of patient care services for the North facility, shift operation managers, nursing serv- ices supervisors and all other employees, guards and supervisors as defined by the Act. 2. The certification On January 23, 1980, a majority of the employ- ees of Respondent in said unit, in a secret-ballot election conducted under the supervision of the Regional Director for Region 27, designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the collective-bar- gaining representative of the employees in said unit on January 31, 1980, and the Union continues to be such exclusive representative within the meaning of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about April 2, 1980, and at all times thereafter, the Union has requested Re- spondent to bargain collectively with it as the ex- clusive collective-bargaining representative of all the employees in the above-described unit. Com- mencing on or about May 9, 1980, and continuing at all times thereafter to date, Respondent has re- fused, and continues to refuse, to recognize and bargain with the Union as the exclusive representa- tive for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since May 9, 1980, and at all times thereafter, refused to bargain collectively with the Union as the exclu- sive representative of the employees in the appro- priate unit, and that, by such refusal, Respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8(a)(5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its oper- ations described in section I, above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of com- merce. V. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, we shall order that it cease and desist therefrom, and, upon request, bargain collectively with the Union as the exclusive representative of all employees in the appropriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. In order to insure that the employees in the ap- propriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certi- fication as beginning on the date Respondent com- mences to bargain in good faith with the Union as the recognized bargaining representative in the ap- propriate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785 (1962); Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. St. Anthony Hospital Systems is an employer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. St. Anthony Federation of Nurses and Health Professionals AFT/FNHP, CFT, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time registered nurses employed by Respondent at its St. Anthony Central and St. Anthony North facilities, but ex- cluding the director of nursing services, associate director of nursing services, director of patient care services for the North facility, shift operation man- agers, nursing services supervisors, and all other employees, guards, and supervisors as defined by the Act, constitute a unit appropriate for the pur- poses of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since January 31, 1980, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the aforesaid appropriate unit for the purpose of collec- tive bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about May 9, 1980, and at all times thereafter, to bargain collectively with the 52 ST. ANTHONY HOSPITAL SYSTEMS above-named labor organization as the exclusive bargaining representative of all the employees of Respondent in the appropriate unit, Respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain, Respond- ent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed them in Section 7 of the Act, and thereby has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, St. Anthony Hospital Systems, Denver, Colorado, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with St. Anthony Feder- ation of Nurses and Health Professionals AFT/ FNHP, CFT, AFL-CIO, as the exclusive bargain- ing representative of its employees in the following appropriate unit: All full-time and regular part-time registered nurses employed by the Respondent at its St. Anthony Central and St. Anthony North facil- ities, but excluding the director of nursing services, associate director of nursing services, director of patient care services for the North facility, shift operation managers, nursing serv- ices supervisors and all other employees, guards and supervisors as defined by the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain with the above-named labor organization as the exclusive representative of all employees in the aforesaid appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such under- standing in a signed agreement. (b) Post at its Denver, Colorado, places of busi- ness copies of the attached notice marked "Appen- dix." 6 Copies of said notice, on forms provided by the Regional Director for Region 27, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 27, in writing, within 20 days from the date of this Order, what steps have been taken to comply here- with. s In the event that 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 National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order 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 WE WILL NOT refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with St. Anthony Federation of Nurses and Health Professionals AFT/FNHP, CFT, AFL-CIO, as the exclusive representative of the employees in the bargaining unit described below. We will not in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed them by Section 7 of the Act. We will, upon request, bargain with the above-named Union, as the exclusive repre- sentative of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours, and other terms and condi- tions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All full-time and regular part-time registered nurses employed by us at our St. Anthony Central and St. Anthony North facilities, but excluding the director of nursing services, 53 DECISIONS OF NATIONAL LABOR RELATIONS BOARD associate director of nursing services, direc- tor of patient care services for the North fa- cility, shift operation managers, nursing services supervisors and all other employees, guards and supervisors as defined by the Act. ST. ANTHONY HOSPITAL SYSTEMS 54