Vicksburg Hospital, Inc.

6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Vicksburg Hospital, Inc. and Carpenters Local Union 1964, United Brotherhood of Carpenters & Joiners of America, AFL-CIO. Case 15- CA-7681 August 11, 1980 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND TRUESDALE Upon a charge filed on May 5, 1980, by Carpen- ters Local Union 1964, United Brotherhood of Car- penters & Joiners of America, AFL-CIO, herein called the Union, and duly served on Vicksburg Hospital, Inc., herein called Respondent, the Gen- eral Counsel of the National Labor Relations Board, by the Regional Director for Region 15, issued a complaint on May 23, 1980, against Re- spondent, alleging that Respondent had engaged in and was engaging in unfair labor practices 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 were duly served on the par- ties 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 15-RC- 6527, 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 April 18, 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. The complaint also alleges that since or or about April 18, 1980, and at all times thereafter, Resnondent has refused, and con- tinues to refuse, to furnish, at the Union's request, the names, adresses, classifications and wage rates of all unit employees. On June 2, 1980, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the com- plaint. On June 6, 1980, counsel for the General Coun- sel filed directly with the Board a Motion for Sum- mary Judgment. Subsequently, on June 10, 1980, the Board issued an order transferring the proceed- Oflicial notice is taken of the record in the representation proceed- ing, Case 15-RC-6527, 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 LTV 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); Intertype 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 NLRA, as amended. 251 NLRB No. 3 ing to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respondent thereafter filed an opposition to the General Coun- sel's motion to transfer the case to the Board and for summary judgment and a response to Notice To Show Cause. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment In its answer to the complaint and response to the Notice To Show Cause, Respondent, in effect, attacks the validity of the Union's majority status and certification by disputing the appropriateness of the unit and by contesting the failure to hold a hearing and set aside the election based on Re- spondent's objections. The General Counsel argues that these material issues have been previously de- cided, that there are no litigable issues of fact, and thus that the Board should grant its Motion for Summary Judgment on these issues. We agree with the General Counsel. Our review of the record herein, including the record in Case 15-RC-6527, reveals that a repre- sentation hearing in which Respondent participated was held on October 2, 1979. Thereafter, on No- vember 5, 1979, the Regional Director for Region 15 issued a Decision and Direction of Election in which he found that the apropriate unit consisted of all full-time and regular part-time nonprofes- sional service, maintenance and technical employ- ees at the Respondent's Vicksburg, Mississippi, fa- cility, including licensed practical nurses, nurses aides, technicians, housekeepers, dietary, grounds- men, porter-orderlies, and laundry workers at Re- spondent's Vicksburg, Mississippi, hospital; exclud- ing all other employees, registered nurses, and other professional employees, business office cleri- cal employees, confidential employees, administra- tive secretaries, managerial employees, guards and supervisors as defined in the Act. Thereafter, on November 15, 1979, Respondent filed a timely re- quest for review of the Regional Director's deci- sion, contesting the correctness of the unit finding. On November 27, 1979, the request for review was denied. On December 7, 1979, an election was con- ducted among the employees in the unit found ap- propriate. The tally of ballots indicated that of ap- proximately 230 eligible voters, 148 cast ballots for, and 66 against, the Union. There were 15 chal- VICKSURGI HOSPITAL, INC. 7 lenged ballots, an insufficient number to affect the results of the election. Thereafter, on December 17, 1979, Respondent filed objections to the election, contending in sub- stance that the Union (1) threatened employees with economic and physical retaliation if they failed to join, support, or select the Union as their representative; (2) offered or promised economic inducements and benefits to employees if they joined, supported, or selected the Union; (3) mis- represented to employees various conditions of em- ployment; and (4) misrepresented the Govern- ment's role in the election and led employees to be- lieve that the Board supported the Union in the election. Respondent also requested a hearing on these objections. On January 31, 1980, the Regional Director issued a Supplemental Decision and Certi- fication of Representative in which he found that (1) the evidence failed to establish that the Union threatened employees with, and requested Re- spondent to, discharge an employee for violation of Respondent's no-solicitation rule; (2) the evidence failed to show that the Union improperly offered to waive initiation fees in return for employee sup- port; (3) the evidence did not sustain the allegation that the Union misrepresented to employees the nature of unfair labor practice and economic strikes; and (4) the evidence did not demonstrate that the Union misrepresented the Government's role in the election or led employees to believe the Board supported the Union. The Regional Director also denied Respondent's request for a hearing. Ac- cordingly, the Regional Director overruled the ob- jections in their entirety and certified the Union as the exclusive bargaining representative of the em- ployees in the unit found appropriate. Thereafter, on February 13, 1980, Respondent requested that the Board review the Regional Di- rector's Supplemental Decision and Certification of Representative. Respondent also requested that the Board reconsider its previous ruling on the appro- priateness of the unit. The Board on April 2, 1980, denied the requests as raising no substantial issues warranting review.2 As previously noted, Respondent, in its answer and in its response to the Notice To Show Cause, challenges the validity of the Union's certification by contesting the appropriateness of the unit and by seeking to have the election set aside because of alleged objectionable conduct by the Union. These contentions were considered and rejected by the Board at various stages in the underlying represen- tation proceeding. 2 In denying review on the objections involving alleged misrepresenta- tion, Member Penello relied on the rationale as set forth in Shopping Kart Food Market, 228 NLRB 1311 (1977). See his dissenting opinion in Gener- al Knit of California. Inc., 239 NLRB 619 (1978). 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 to relitigate issues which were or could have been litigated in a prior representation proceeding.3 All issues raised by Respondent in this proceed- ing were or could have been litigated in the prior representation proceeding, 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 find that Re- spondent has at all material times herein refused to recognize and bargain with the Union, upon re- quest, and that its refusal to do so is in violation of Section 8(a)(5) and (1) of the Act. In its answer to the complaint, Respondent admits that the Union requested it to furnish wage and employment information pertaining to bargain- ing unit employees. Respondent also admits that it declined to meet with the Union for purposes of collective bargaining concerning wages, hours, and working conditions because of its alleged "good faith doubt" that the Union represented a majority of the employees in an appropriate unit for collec- tive-bargaining purposes. Respondent does not deny the relevance of the information requested, but is seeking to relitigate issues previously decided in a representation proceeding which, for reasons stated above, is not a meritorious defense. Accordingly, we find no material issues of fact exist with regard to Respondent's refustal to fur- nish wage and employment information sought by the Union through its letter of April 9, 1980, and that its refusal to do so violated Section 8(a)(5) and (1) of the Act. We therefore grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is a Mississippi corporation, with a facility located at 3311 Frontage Road, Vicksburg, Mississippi, where it is engaged in the dispensing of health care services. In the 12 months preceding is- suance of the complaint, a representative period, Respondent, in the course and conduct of its oper- a See Pittsburgh Plate Glass Co. v L RB . 313 U S. 146, 162 (1941); Rules and Regulations of the Board, Secs 102.67(f) and 102 h6 9(c) VICKHURG HOSPITAL. INC .7 8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ations at Vicksburg, Mississippi, purchased and re- ceived goods and materials valued in excess of $50,000 directly from points located outside the State of Mississippi. During the same representative period, Respondent had gross receipts in excess of $250,000. We find, on the basis of the foregoing, that Re- spondent is, and has bcen 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 Carpenters Local Union 1964, United Brother- hood of Carpenters & Joiners of America, 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 purposes within the meaning of Section 9(b) of the Act: All full-time and regular part-time non-profes- sional service, maintenance and technical em- ployees at the Employer's Vicksburg, Missis- sippi, facility, including licensed practical nurses, nurses aides, technicians, housekeepers, dietary, groundsmen, porter-orderlies, and laundry workers at the Employer's Vicksburg, Mississippi hospital; excluding all other em- ployees, registered nurses, and other profes- sional employees, business office clerical em- ployees, confidential employees, administrative secretaries, managerial employees, guards, and supervisors as defined in the Act. 2. The certification On December 7, 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 15, designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the collective-bargaining repre- sentative of the employees in said unit on January 31, 1980, and the Union continues to be such exclu- sive representative within the meaning of Section 9(a) of the Act. B. The Unfair Labor Practices Commencing on or about April 9, 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 April 18, 1980, and continu- ing at all times thereafter to date, Respondent has refused, 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, and has refused the Union's request for the names, addresses, classifications, and wages rates of employees in the unit. Accordingly, we find that Respondent has, since April 18, 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. We shall also order that Respondent, upon request, shall furnish to the Union the infor- mation with respect to unit employees which it re- quested by letter dated April 9, 1980. 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., VICKSBURG HOSPITAL, 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 I. Vicksburg Hospital, Inc., is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Carpenters Local Union 1964, United Brother- hood of Carpenters & Joiners of America, AFL- CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time nonprofes- sional service, maintenance and technical employ- ees at the Employer's Vicksburg, Mississippi, facili- ty, including licensed practical nurses, nurses aides, technicians, housekeepers, dietary, groundsmen, porter-orderlies, and laundry workers at the Em- ployer's Vicksburg, Mississippi, hospital; excluding all other employees, registered nurses, and other professional employees, business office clerical em- ployees, confidential employees, administrative sec- retaries, managerial employees, and guards, and su- pervisors as defined in the Act, constitute a unit ap- propriate for the purposes 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 April 18, 1980, and at all times thereafter, to bargain collectively with the 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 refusing on or about April 18, 1980, and at all times thereafter, to furnish relevant wage and employment information concerning said unit em- ployees, Respondent has engaged in and is engag- ing in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 7. 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. 8. 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, Vicksburg Hospital, Inc., Vicksburg, Mississippi, 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 Carpenters Local Union 1964, United Brotherhood of Carpenters & Joiners of America, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All full-time and regular part-time non-profes- sional service, maintenance and technical em- ployees at the Employer's Vicksburg, Missis- sippi, facility, including licensed practical nurses, nurses aides, technicians, housekeepers, dietary, groundsmen, porter-orderlies, and laundry workers at the Employer's Vicksburg, Mississippi hospital; excluding all other em- ployees, registered nurses, and other profes- sional employees, business office clerical em- ployees, confidential employees, administrative secretaries, managerial employees, guards, and supervisors as defined in the Act. (b) Refusing to bargain collectively with the above-named labor organization by refusing to fur- nish said labor organization with relevant wage and employment information concerning unit employ- ees. (c) 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) Upon request, bargain with the above-named labor organization by furnishing it with the follow- ing relevant information concerning unit employ- 9 10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ees: names, addresses, classifications, and wage rates. (c) Post at Vicksburg, Mississippi, facility copies of the attached notice marked "Appendix." 4 Copies of said notice, on forms provided by the Regional Director for Region 15, 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. (d) Notify the Regional Director for Region 15, in writing, within 20 days from the date of this Order, what steps have been taken to comply here- with. 4 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 I'ursu- ant to a Judgment of the United Stes 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 Carpenters Local Union 1964, United Brotherhood of Carpenters & Joiners of Amer- ica, AFL-CIO, as the exclusive representative of the employees in the bargaining unit de- scribed 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 non-pro- fessional service, maintenance and technical employees at the Employer's Vicksburg, Mississippi, facility, including licensed prac- tical nurses, nurses aides, technicians, house- keepers, dietary, groundsmen, porter-order- lies, and laundry workers at the Employer's Vicksburg, Mississippi hospital; excluding all other employees, registered nurses, and other professional employees, business office clerical employees, confidential employees, administrative secretaries, managerial em- ployees, guards, and supervisors as defined in the Act. WE WILL, upon request, bargain collectively with the above-named Union by furnishing it with the following relevant information it has requested concerning the unit employees: names, addresses, classifications, and wage rates. VICKSBURG HOSPITAL, INC.