Albert Elnstein College of Medicine

National Labor Relations Board - Board Decisions

Jan 30, 1980

247 N.L.R.B. 693 (N.L.R.B. 1980)

ALBERT EINSTEIN COLLEGE OF MEDICINE
Albert Einstein College of Medicine of Yeshiva
University and International Association of Securi-
ty Officers. Case 2-CA-16205
January 30, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
Upon a charge filed on February 9, 1979, by
International Association of Security Officers, herein
called the Union, and duly served on Albert Einstein
College of Medicine of Yeshiva University, herein
called Respondent, the General Counsel of the Na-
tional Labor Relations Board, by the Regional Direc-
tor for Region 2, issued a complaint and notice of
hearing on February 15, 1979, against Respondent,
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, 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 or about
January 19, 1979, following a Board election in Case
2-RC-18122, the Union was duly certified as the
exclusive collective-bargaining representative of Re-
spondent's employees in the unit found appropriate;'
and that, commencing on or about February 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 bargaining representa-
tive, although the Union has requested and is request-
ing it to do so. On February 26, 1979, Respondent
filed its answer to the complaint admitting in part, and
denying in part, the allegations in the complaint and
asserting certain affirmative defenses.
On April 19, 1979, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment. Subsequently, on April 26, 1979, 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 Judgment should not
be granted. Respondent thereafter filed a response to
the Notice To Show Cause.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
'Official notice is taken of the record in the representation proceeding, Case
2-RC-18122, 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.
247 NLRB No. 70
National Labor Relations Board has delegated its
authority 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 numerous
factual allegations of the complaint, but contends, in
substance, that the Board's certification of the Union
is invalid. In support thereof, Respondent asserts that,
contrary to the Board's conclusion in the underlying
representation proceeding, at all times it was not in its
entirety, or primarily, a health care institution within
the meaning of Section 2(14) of the Act. Rather,
Respondent argues that it must be treated for purposes
of the Act as an educational institution. In its response
to the Notice To Show Cause, Respondent further
contends that the characterization of its operation in
the underlying representation proceeding as either
primarily or entirely a health care institution is clearly
erroneous as a matter of fact and law, and is directly
contrary to the Board's recent decision in Albany
Medical College of Union University, 239 NLRB 853
(1978). Respondent admits in its answer, however,
that it has refused, and continues to refuse, to bargain
with the Union.
In support of the Motion for Summary Judgment,
counsel for the General Counsel argues that the
decision in Albany Medical College, supra, does not
affect the Board's decision in the underlying represen-
tation proceeding that Respondent is a health care
institution under Section 2(14). The General Counsel
also argues that the Motion for Summary Judgment
should be granted even if Respondent is not found to
be a health care institution within the meaning of
Section 2(14).
For the reasons set out below, we find merit in
certain of Respondent's contentions. Nevertheless, we
find that Respondent violated Section 8(a)(5) and (1)
by refusing to bargain with the Union, and that the
Motion for Summary Judgment should be granted.
Our review of the record herein establishes that on
October 2, 1978, the Union filed a petition in Case 2-
RC-18122, in which it sought a unit of Respondent's
"guards and security personnel." The petition de-
scribed Respondent as a "school and health care
facility" providing "education and health services."
Thereafter, on October 6, 1978, the Union filed a
second petition with the Regional Director, in Case 2-
1968); Golden Age Beverage Co.. 167 NLRB 151 (1967). enfd. 415 F.2d 26
(5th Cir. 1969); Intertype Ca v. Penello. 269 F.Supp. 573 (D.C.Va. 1967);
Follerr Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968); Sec.
9(d) of the NLRA, as amended.
693
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RC-18129 which sought the same unit and contained
the same description of Respondent and its activities.
On October 12, 1978, the Regional Director issued
an Order consolidating Cases 2-RC-18122 and 2-
RC-18129 and an amended notice of representation
hearing. Thereafter, in her Decision, Order, and
Direction of Election, dated November 20, 1978, the
Regional Director found iter alia (and contrary to
Respondent's contentions that is was basically not a
health-related facility but rather an educational insti-
tution), that Respondent operated an "integrated
health care and teaching facility." The Regional
Director dismissed the petition in Case 2-RC-18129
and, based upon the petition in Case 2-RC-18122,
directed an election in the petitioned-for unit.'
On November 29. 1978, Respondent filed with the
Board a request for review of the Regional Director's
decision, in which it contended that it was primarily
an educational research institution and only secondar-
ily a health care institution for purposes of the
different provisions applicable to each under the Act.
By telegraphic order dated December 29, 1978, the
Board denied Respondent's request for review as
raising no substantial issues warranting review. There-
after, on January 19, 1979, pursuant to the election
results,' the Regional Director certified the Union as
the exclusive collective-bargaining representative of all
employees in the appropriate unit.
As indicated previously, n its opposition to the
General Counsel's Motion for Summary Judgment,
Respondent argues that the result which the Board
reached in thie representation proceeding in classifying
Respondent as an "integrated health care and teaching
facility" is in conflict with the Board's decision in
Albany Medical College oj' Union U.niversity. 239
NLRB 853 (1978). In Albany Medical College. the
Board found that the medical school involved was not
a health care institution within the meaning of Section
2(6) and (7) of the Act. Upon further reflection, and
consistent with the reasoning and result reached in
Albany Medical College, we conclude that Respondent
was not properly classified as a health care istitution
' At the time these petitions were filed, Respondent and Union of Security
Personnel of Hospitals and Health Related Facilities, herein the Intervenor,
had a contract which, according to the Regional Director, was to terminate
December 31, 1978. The unit described in that contract was the unit which
the Union sought in its petitions.
' In the course of her decision, the Regional Director specifically found that
the Union was a labor organization within the meaning of the Act, and that
the unit sought, i.e., all full-time and regular part-time security guards
employed by Respondent at its medical school campus, Van Etten Drug
Program and Methadone Treatment Program, with various exclusions, was an
appropriate unit.
' The election tally revealed that of approximately 34 eligible voters, 28 cast
ballots for the Union and 6 cast ballots for the Intervenor, with no ballots
challenged.
' 239 NLRB supra at 854.
' Respondent does not contest that it is subject to the Board's jurisdiction
but only the classification that the Board gave it in the representation
proceeding. It is clear from the Regional Director's orginal decision that
Respondent meets the jurisdictional standards for educational institutions. See
below in the conclusions of law.
under Section 2(14) of the Act in the underlying
representation proceeding.
In finding .4/hany Medical College not to be a health
care institution, we stated that [o]ur conclusion rests
on the finding that Albany Medical College's primary
purpose-its raison d'etre -is to train physicians and
to promote research and not to provide medical
services to the community."' We have carefully
reviewed the record in its entirety and are satisfied
that the record establishes that the primary purpose of
the Einstein College of Medicine is to train physicians
and to promote research and not to provide medical
services to the community. Accordingly, and in light
of Alban Medical Collge, supra. we find that
Respondent herein is not primarily or entirely a health
care institution.
We further conclude, however, that this finding is
not crucial i assessing Respondent's duty to bargain
with the Union upon request. Thus, the fact that we
agree with Respondent that it is primarily an educa-
tional institution rather than primarily or entirely a
health care institution is ultimately of no legal
consequence since, in either case, the Union involved
herein was properly certified as the exclusive collec-
tive-bargaining representative of the employees in all
appropriate unit.'" In this regard, we emphasize that,
inasmuch as the petition in the underlying representa-
tion proceeding was filed exactly 90 days prior to the
expiration date of the collective-bargaining agreement
between Respondent and the Intervenor, the petition
was timely under both the rules for health care
institutions and for non-health care institutions.
With respect to other issues now raised by Respon-
dent, we note that while Respondent denies that the
Union is a labor organization based on insufficient
knowledge of the issue, Respondent failed to file a
request for review of the finding by the Regional
Director in the representation proceeding that the
Union was a labor organization. We also note that
while Respondent denies the appropriateness of the
unit at the present time, it failed to file a request for
review of the Regional Director's finding on that issue
in the representation proceeding.'
'See Trinity Lutheran Hospital, et al., 218 NLRB 199 (1975), and Leonard
Wholesale Meats, Inc., 136 NLRB 1000 (1962). Moreover, were we to find the
petition initially untimely filed, we would nevertheless have found the election
held pursuant to it to have been valid. See W. A. Foote Memorial Hospital.
Inc.., 230 NLRB 540, 541 (1977), and cases cited at fn. 7 thereof.
' In passing. we do recognize that the Regional Director's unit determina-
tion in the underlying representation proceeding regarded as relevant, inter
alia, the congressional mandate against proliferation of units in the health care
industry. This factor is no longer of relevance to the unit determination.
However, this now-extraneous finding of the Regional Director does not in
any way detract from our agreement with the conclusion reached by her that
Respondent was certified in an appropriate unit. Where, as here, the
appropriateness of the petitioned-for unit is supported, inter alia. by a prior
collective-bargaining history, and the fact that both Unions sought such an
overall unit, Respondent's status as primarily an educational institution,
rather than primarily a health care institution, does not operate to render said
unit inappropriate. Finally, it is clear that the factor of undue proliferation
694
ALBERT EINSTEIN COLLEGE OF MEDICINE
It is well settled that in the absence of newly
discovered or previously unavailable evidence or
special circumstances a respondent in a proceeding
alleging 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.
The issues with respect to the Union's labor
organization status and the appropriateness of the unit
are issues raised by Respondent in this proceeding
which were or could have been litigated in the prior
representation proceeding, and Respondent does not
offer to adduce at a hearing any newly discovered or
previously unavailable evidence regarding them, nor
does it allege that any special circumstances exist
herein which would require the Board to reexamine
the decision regarding them made in the representa-
tion proceeding. We therefore find that Respondent
has not raised any issue which is properly litigatable 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, at all times material herein, has been a
division of Yeshiva University, a private institution of
higher education chartered under the Not-for-Profit
Corporation Law and the Education Law of the State
of New York, and has maintained its principal office
and place of business in the Bronx, New York.
Annually, Respondent, in the course and conduct of
its operations, derives gross revenues of approximately
$87 million, and it purchases goods valued in excess of
$25,000 directly from sources located outside the State
of New York.
We find, on the basis of the foregoing, that
Respondent 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
International Association of Security Officers is a
labor organization within the meaning of Section 2(5)
of the Act.
was only one of many factors relied on by the Regional Director in reaching
the results with respect to the appropriate unit which we still affirm.
I See Pittsburgh Plate Glass Co. v. N. LRB.. 313 U.S. 146, 162 (1941); Rules
and Regulations of the Board, Secs. 102.67(f) and 102.6
9 (c).
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
I. The unit
The following employees of Respondent constitute a
unit appropriate for collective-bargaining purposes
within the meaning of Section 9(b) of the Act:
All full-time and regular part-time security
guards employed by Respondent at its Medical
School campus, Van Etten Drug Program and
Methadone Treatment Program, Bronx, New
York, excluding all other employees and supervi-
sors as defined in the Act.
2. The certification
On January 11, 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 2, designated the Union as their
representative for the purpose of collective bargaining
with Respondent. The Union was certified as the
collective-bargaining representative of the employees
in said unit on January 19, 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 January 25, 1979, and at
all times thereafter, the Union has requested Respon-
dent to bargain collectively with it as the exclusive
collective-bargaining representative of all the employ-
ees in the above-described unit. Commencing on or
about February 5, 1979, and continuing at all times
thereafter to date, Respondent has refused, and
continues to refuse, to recognize and bargain with the
Union as the exclusive representative for collective
bargaining of all employees in said unit.
Accordingly, we find that Respondent has, since
February 5, 1979, and at all times thereafter, refused
to bargain collectively with the Union as the exclusive
representative of the employees in the appropriate
unit, and that, by such refusal, Respondent has
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the
Act. °
"' Chairman Fanning agrees with the result reached herein that by refusing
to bargain collectively with the Union as the exclusive bargaining representa-
tive of all employees of Respondent in the appropriate unit Respondent has
engaged in and is engaging in unfair labor practices within the meaning of Sec.
(Continued)
695
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 operations
described in section I, above, have a close, intimate,
and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead
to labor disputes burdening and obstructing commerce
and the free flow of commerce.
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 appro-
priate unit, and, if an understanding is reached,
embody such understanding in a signed agreement.
In order to insure that the employees in the
appropriate unit will be accorded the services of their
selected bargaining agent for the period provided by
law, we shall construe the initial period of certification
as beginning on the date Respondent commences to
bargain in good faith with the Union as the recognized
bargaining representative in the appropriate 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. Albert Einstein College of Medicine of Yeshiva
University is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. International Association of Security Officers is a
labor organization within the meaning of Section 2(5)
of the Act.
3. All full-time and regular part-time security
guards employed by Respondent at its medical school
campus, Van Etten Drug Program and Methadone
Treatment Program, Bronx, New York, excluding all
other employees and supervisors as defined in the Act,
constitute a unit appropriate for the purposes of
8(a)(5) and (I) of the Act. However, as for Respondent's contention that it is
primarily an educational institution, Chairman Fanning, for the reasons set
forth in his dissenting opinion in Albany Medical College of Union University,
collective bargaining within the meaning of Section
9(b) of the Act.
4. Since January 19, 1979, the above-named labor
organization has been and now is the certified and
exclusive representative of all employees in the afore-
said appropriate unit for the purpose of collective
bargaining within the meaning of Section 9(a) of the
Act.
5. By refusing on or about February 5, 1979, 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 practices
within the meaning of Section 8(a)(5) of the Act.
6. By the aforesaid refusal to bargain, Respondent
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 engaged 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 mean-
ing 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
Relations Board hereby orders that the Respondent,
Albert Einstein College of Medicine of Yeshiva
University, Bronx, New York, 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 International Association of
Security Officers as the exclusive bargaining represen-
tative of its employees in the following appropriate
unit:
All full-time and regular part-time security
guards employed by Respondent at its Medical
School campus, Van Etten Drug Program and
Methadone Treatment Program, Bronx, New
York, excluding all other employees and supervi-
sors as defined in the Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise 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:
239 NLRB 853 (1978), would find that Respondent herein is a health care
institution within the meaning of Sec. 2(14) of the Act.
696
ALBERT EINSTEIN COLLEGE OF MEDICINE
(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 understand-
ing is reached, embody such understanding in a signed
agreement.
(b) Post at its medical school campus, Van Etten
Drug Program and Methadone Treatment Program
facilities, Bronx, New York, copies of the attached
notice marked "Appendix."" Copies of said notice, on
forms provided by the Regional Director for Region 2,
after being duly signed by Respondent's representa-
tive, 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
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 2, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
. 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 Pursuant 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 Inter-
national Association of Security Officers 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, of coerce our employees
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 representa-
tive of all employees in the bargaining unit
described below, with respect to rates of pay,
wages, hours, and other terms and conditions of
employment, and, if an understanding is reached,
embody such understanding in a signed agree-
ment. The bargaining unit is:
All full-time and regular part-time security
guards employed by us at the Medical School
campus, Van Etten Drug Program and Metha-
done Treatment Program, Bronx, New York,
excluding all other employees and supervisors
as defined in the Act.
ALBERT EINSTEIN COLLEGE OF MEDICINE
OF YESHIVA UNIVERSITY
697