Foundation for Comprehensive Health Services

FOUNDATION FOR COMPREHENSIVE HEALTH SERVICES Il Foundation for Comprehensive Health Services and Midlevel Practitioners Group of Foundation for Comprehensive Health Services. Case 20-CA- 15033 August 13, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDALE Upon a charge filed on December 14, 1979, by Midlevel Practitioners Group of Foundation for Comprehensive Health Services, herein called the Union, and duly served on Foundation for Com- prehensive Health Services, herein called Respond- ent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 20, issued a complaint on January 16, 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 October 17, 1979, follwing a Board election in Case 20-RC- 14818, the Union was duly certified as the exclu- sive collective-bargaining representative of Re- spondent's employees in the unit found appropri- ate;' and that, commencing on or about December 5, 1979, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bar- gaining representative, 'although the Union has re- quested and is requesting it to do so. On January 25, 1980, Respondent filed its answer to the com- plaint admitting in part, and denying in part, the al- legations in the complaint. On March 20, 1980, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment and a memorandum in support thereof. Subsequently, on March 28, 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 I Official notice is taken of the record in the representalion proceed- ing, Case 20-RC-14818. as the term "record" is defined in Sees 102 68 and 102.691g) of the Board', Rules and Regulations,. Serie , as amended See LTr' Eltrl syernw . In.c, 166 N.RR 938 (1967). eifd 88X J 2d 681 (41h Cir 1968); Golden Ag Blcruage (Co. lh7 NIRB 151 (1i7), cflld 4J5 F2d 26 (5th Cir 196Qh9 Interr pe (Co X Pnr,ll. 26h F Supp 57' (D.C Va. 1967); bolloll Corp.. 164 N RB 378 (10I 71, endl1 37 1 21 'I (7th Cir 1968); Sec 9d) of the NLRA. a amended 251 NLRB No. 24 filed a document entitled "Answer 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 admits that it has refused to bargain with the Union and contends that the Union's certification was improp- er. Specifically Respondent contends that (1) the social worker was improperly excluded from the unit found appropriate by the Regional Director for Region 20 in her Decision and Direction of Election which issued June 28, 1979; (2) it was denied due process because it was denied an exten- sion of time in which to file its brief following the hearing on the issues raised by the petition; (3) its motion for withdrawal of certification was improp- erly denied; and (4) due process of law requires that a hearing be conducted in this proceeding. Counsel for the General Counsel argues that Re- spondent's contentions are without merit as they raise issues which were or could have been litigat- ed in the prior related representation proceedings; that the Regional Director decided that the conten- tions of Respondent which are asserted as affirma- tive defenses were without merit; and that there are no litigable issues of fact or law warranting a hearing. We agree with the General Counsel. Review of the record herein, including the record in Case 20-RC-14818, reveals that on June 28, 1979, following a hearing, the Regional Direc- tor for Region 20 issued a Decision and Direction of Election. On July 12, 1979. Respondent filed with the Board a request for review entitled "Motion to Reopen Record for Taking of Further Evidence and Request for Leave to Present Oral Argument." On July 12, 1979, the Regional Direc- tor issued an amendment to the Decision and Di- rection of Election in which the appropriate unit for collective bargaining was found to consist of all regular full-time and part-time family nurse practi- tioners, physician assistants, and registered nurses employed by Respondent at its facilities located in Placerville, Sacramento, Auburn, Colfax, Santa Rosa, and Clearlake Highlands, California; exclud- ing physicians, social workers, trainees, and all other employees, and guards and supervisors as de- fined in the Act. The election was held on July 26, 1979, and the ballots were impounded. On July 27. 1979, the Board, with Member Truesdale dissenting 162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in part, 2 advised Respondent by telegram that its request for review was denied and in all respects, except one, it found that a substantial issue was raised concerning the family nurse practitioner trainee and permitted this individual to vote under challenge.3 Additionally, the Board advised Re- spondent that its motion to reopen the record and its request for oral argument was denied. On September 14, 1979, the ballots cast on July 26, 1979, were counted. The tally of ballots showed that of 14 eligible voters 5 cast ballots for, and I cast a ballot against, the Union. There were five challenged ballots, a number sufficient to affect the results, and one void ballot. No objections were filed. On October 17, 1979, the Regional Di- rector issued a Supplemental Decision, Revised Tally of Ballots and Certification of Representa- tive, sustaining the challenges of a family nurse practitioner trainee and of a social worker, and cer- tifying the Union as the exclusive collective-bar- gaining representative of the employees in the unit found appropriate. The revised tally of ballots shows that of 12 eligible voters 5 cast ballots for, and I cast a ballot against, the Union, with 3 chal- lenged ballots and I void ballot. Thereafter, Respondent filed with the Board a request for review of the Regional Director's Sup- plemental Decision which was denied by tele- graphic order on November 28, 1979, with Member Truesdale dissenting in part, indicating that, in light of his earlier position with the respect to the social worker, he would find the challenged ballots determinative and would, therefore, grant review. On December 7, 1979, Respondent filed a petition for reconsideration with the Board. 4 By telegraphic order on January 2, 1980, the Board, with Member Truesdale dissenting, denied the peti- tion as lacking in merit. On or about December 5, 1979, Respondent ad- vised the Union by letter that Respondent was seeking judicial review of the Board's certification of the Union and, therefore, declined at this time to recognize and negotiate with the Union as the ex- clusive representative of Respondent's employees in the certified unit, and concurrently did refuse, and continues to refuse, to recognize or bargain with the Union. MlIembhr Iruesdale idicates, inter alia, hat he would granl rcicw anId vote the ocial worker subject tI challenge. :' Suhbsquel t he election and before the revised tally issued. Rc- ,ponlde1 itillllCd Ihe Regiollal )irector that i agreed with the Uliiit thal lt l cilallenge io thel ballot of the failiy lure practitioncr tl.alne be 11M lill'(d M llhile on I)crchcbel 12, 1979. he Respondelt filed with Ihe Rc- gilrial I)irectol fmI Regioi 2 a moLtion for ,ithldral. o(I' crlification M11d dliiissal of rprwc iltalion pclititln Thercatter, on l)etcllhcr l9, 179. the ACtilig Reglio Inal I)rC'tor denltied its mIotioi1 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.5 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 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 California corporation engaged in the medical practice business and provides medi- cal care at various facilities within the State of California. During the 12 months preceding issu- ance of the complaint herein, Respondent received gross revenues in excess of $500,000 in the form of fees from patients, payments from medical insur- ance companies, and grants from instrumentalities of the State of California and the United States Government. During this same period, Respondent purchased and received products, goods, and mate- rials valued in excess of $5,000 from other enter- prises located within the State of California, each of which other enterprises had received the said products, goods, and materials directly from points outside the State of California. 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. 11. THE LABOR ORGANIZATION INVOLVED Midlevel Practitioners Group of Foundation for Comprehensive Health Services is a labor organiza- tion within the meaning of Section 2(5) of the Act. ' Sec Ptili arh luoi (;ua ('o \ NI..R B 1 313 I S 146, 162 (1941); Rules rld Rgilaliosll tf he Ioaird, Scc. 10(2 67(0 and 11)2 6 9(c) FOUNDATION FOR COMPREHENSIVE HEALTH SERVICES 163 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 regular full-time and part-time family nurse practitioners, physician assistants and regis- tered nurses employed by the Employer at its facilities located in Placerville, Sacramento, Auburn, Colfax, Santa Rosa and Clearlake Highlands, California; excluding physicians, social workers, trainees and all other employ- ees, guards and supervisors as defined in the Act. 2. The certification On July 26, 1979, a majority of the employees of Respondent in said unit, in a secret-ballot election conducted under the supervision of the Regional Director for Region 20, 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 October 17, 1979, 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 November 26, 1979, and at all times thereafter, the Union has requested Respondent to bargain collectively with it as the exclusive collective-bargaining representative of all the employees in the above-described unit. Com- mencing on or about December 5, 1979, and con- tinuing at all times thereafter to date, Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive repre- sentative for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since December 5, 1979, and at all times thereafter, re- fused to bargain collectively with the Union as the exclusive representative of the employees in the ap- propriate unit, and that, by such refusal, Respond- ent has engaged in and is engaging in unfair labor practices 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. Foundation for Comprehensive Health Serv- ices is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Midlevel Practitioners Group of Foundation for Comprehensive Health Services is a labor orga- nization within the meaning of Section 2(5) of the Act. 3. All regular full-time and part-time family nurse practitioners, physician assistants, and regis- tered nurses employed by the Employer at its facil- ities located in Placerville, Sacramento, Auburn, Colfax, Santa Rosa, and Clear Lake Highlands, California; excluding physicians, social workers, trainees, and all other employees, and guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargain- ing within the meaning of Section 9(b) of the Act. 164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. Since October 17, 1979, 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 December 5, 1979, and at all times thereafter, to bargain collectively with the above-named labor organization as the ex- clusive bargaining representative of all the employ- ees of Respondent in the appropriate unit, Re- spondent has engaged in and is engaging in unfair labor practices 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)(l) 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, Foundation for Comprehensive Health Services, Sacramento, California, its officers, agents, succes- sors, and assigns, shall: i. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Midlevel Practi- tioners Group of Foundation for Comprehensive Health Services as the exclusive bargaining repre- sentative of its employees in the following appro- priate unit: All regular full-time and part-time family nurse practitioners, physician assistants and regis- tered nurses employed by the Employer at its facilities located in Placerville, Sacramento, Auburn, Colfax, Santa Rosa and Clearlake Highlands, California; excluding physicians, social workers, trainees and all other employ- ees, guards and supervisors as defined in 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 facilities located in Placerville, Sacramento, Auburn, Colfax, Santa Rosa, and Clearlake Highlands, California, copies of the at- tached notice marked "Appendix." 6 Copies of said notice, on forms provided by the Regional Direc- tor for Region 20, after being duly signed by Re- spondent's representative, shall be posted by Re- spondent 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. Rea- sonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order, what steps have been taken to comply here- with. MEMBER TRUESDALE, dissenting: As indicated in the majority's Decision, in the underlying representation proceeding I would have granted the Employer's request for review of the Regional Director's decision because I concluded that the exclusion of the social worker from the unit found appropriate raised issues that warranted consideration by the Board. Also I would have al- lowed the social worker to cast a challenged ballot. Had my colleagues agreed to grant review it is possible that the Board would have found that the social worker should have been included in the unit. If she was included in the unit, then the social worker's ballot could have been determinative of the election results and of the Union's entitlement to its Certification of Representative. Given these circumstances, I cannot now join my colleagues in granting the General Counsel's motion. ' 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 i(f the National Labor Relations Board" shall read Posted Pursu an to Judgment of the United States Court of Appeals Enforcing an Order elf the National Labor Relations Board." FOUNDATION FOR COMPREHENSIVE HEALTH SERVICES 165 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 Midlevel Practitioners Group of Founda- tion for Comprehensive Health Services 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 regular full-time and part-time family nurse practitioners, physician assistants and registered nurses employed by the Employer at its facilities located in Placerville, Sacra- mento, Auburn, Colfax, Santa Rosa and Clearlake Highlands, California; excluding physicians, social workers, trainees and all other employees, guards and supervisors as defined in the Act. FOUNDATION FOR COMPREHENSIVE HEALTH SERVICES