Area E-7 Hospital

National Labor Relations Board - Board Decisions

Nov 25, 1977

233 N.L.R.B. 798 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Area E-7 Hospital Association and Retail Store
Employees Union, Local 418, Professional and
Health Care Division. Case 14-CA-10273
November 25, 1977
DECISION AND ORDER
By CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
Upon a charge filed on May 12, 1977,1 by Retail
Store Employees Union, Local 418, Professional and
Health Care Division, herein called the Union, and
duly served on Area E-7 Hospital Association,
herein called the Respondent, the General Counsel
of the National Labor Relations Board, by the
Regional Director for Region 14, issued a complaint
on June 14, 1977,2 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 April 22,
following a Board election in Case 14-RC-8347, the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate; 3 and that, commenc-
ing on or about May 10 and at all times thereafter,
Respondent has refused, and continues to date to
refuse, to bargain collectively with the Union as the
exclusive bargaining representative, although the
Union has requested and is requesting it to do so. On
June 21, Respondent filed its answer to the com-
plaint admitting in part, and denying in part, the
allegations in the complaint. Specifically, Respon-
dent admitted certain of the factual allegations of the
complaint, but denied that it committed the unfair
labor practices alleged. Affirmatively, Respondent
asserted that the rulings upon which the Regional
Director based the certification of the Union were
arbitrary and capricious, constituted gross error, and
departed substantially from established Board prece-
dent and that the Union's certification was, there-
fore, improper and invalid.
I All dates herein are 1977 unless otherwise indicated.
2 The charge was amended on May 20 to allege that the Respondent had
committed additional unfair labor practices. These allegations were not,
however, included in the complaint.
3 Official notice is taken of the record in the representation proceeding,
Case 14-RC-8347. 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 (C.A. 4,
1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26
233 NLRB No. 110
On or about July 19, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment and a brief in support thereof,
and thereafter, on July 22, filed a motion for leave to
correct said brief.4
On August 1, the Board issued an order transfer-
ring the proceeding to the Board and a Notice To
Show Cause why the General Counsel's Motion for
Summary Judgment should not be granted. Respon-
dent thereafter filed a response in opposition to the
Motion for Summary Judgment and motion to
dismiss the complaint.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
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 and response in opposition to Motion
for Summary Judgment, Respondent attacks the
validity of the Union's certification, asserting that the
Regional Director's rulings in the underlying repre-
sentation case regarding both the challenge to the
ballot of employee Sheila Lauda and Respondent's
objections to the Union's preelection conduct were
arbitrary and capricious, constituted gross error, and
departed substantially from established Board prece-
dent. The Respondent therefore contends that the
Board should not have refused to entertain the
Employer's motion for reconsideration of the Re-
gional Director's decision in that proceeding. The
General Counsel, however, contends that, because
the election was conducted pursuant to an agreement
for consent election, determinations of the Regional
Director shall be final and binding in the absence of
fraud, misconduct, or gross mistake,5 that there is no
evidence that matters of fact and law now raised by
Respondent were not fully investigated and consid-
ered in the underlying representation case or that the
Regional Director's determination was arbitrary and
capricious, 6 and that the Motion for Summary
Judgment should, therefore, be granted.
Our review of the record herein, including the
record in Case 14-RC-8347, reveals that pursuant to
an agreement for consent election an election was
conducted on March 24 among the employees in
(C.A. 5, 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va., 1967);
Follert Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec.
9(d) of the NLRA, as amended.
The latter motion, which requests that a clause be deleted from the first
page of the brief, is unopposed by the Respondent, and is hereby granted.
5 General Tube Company, 141 NLRB 441 (1963).
6 See, e.g., Carlisle Paper Box Company v. N.LR.B., 398 F.2d I, 56 (C.A.
3, 1968).
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AREA E-7 HOSPITAL ASSN.
three agreed-upon units, Units A, B, and C, and that
the tally of ballots furnished the parties after the
election for Unit A, the only unit here in question,
showed 168 votes cast for, and 161 against, the
Union, and that I ballot was void and 9 ballots were
challenged, a sufficient number to affect the result. 7
Respondent filed timely objections, limited to Unit
A, alleging, in substance, that the Union engaged in
substantial misrepresentations calculated to preju-
dice the election. The Union also filed timely
objections. After investigation, the Regional Director
issued a "Decision Under Agreement for Consent
Election and Certification of Representative and
Certification of Results of Election" in which, as to
Unit A, he sustained the challenges to the ballots of
three employees, including that of Lauda, and found,
inter alia, that the Union's alleged misrepresentations
of fact did not provide a basis for setting aside the
election. s Accordingly, the Regional Director over-
ruled the Respondent's objections, and, having found
that the six remaining challenged ballots would not
affect the result of the election, certified the Union.
Thereafter, Respondent filed a motion for recon-
sideration of the Regional Director's decision regard-
ing the challenge to Lauda's ballot and Respondent's
objections. The Board, by letter dated May 4,
advised Respondent that it would not consider
Respondent's motion in light of the Board's firm
policy against intervening where a party to a consent
election agreement indicates disapproval of the
judgment exercised by the Regional Director. 9
It is well settled that the Regional Director's
determination in consent elections is final, in the
absence of fraud, misconduct, or gross mistake, even
though the Board might have reached a different
conclusion in the first instance.' 0 Respondent's
allegations are in fact an attack on the judgment of
the Regional Director and on the merits of his
decision as to Lauda's challenged ballot and Respon-
dent's objections. The record contains nothing that
would tend to support Respondent's contention that
the Regional Director's determination was arbitrary
or capricious and Respondent has failed herein to
I The tally of ballots also showed that the Union did not receive a
majority of the votes cast in Unit B and did receive a majority of the votes
cast in Unit C. We note that there is no issue raised in this matter
concerning Respondent's bargaining obligations with respect to Unit C.
s The Regional Director further found no merit to, and therefore
overruled, the Union's objections to the election, which alleged that
Respondent engaged in surveillance, promised and granted increases in
benefits, and made misrepresentations and threats which prejudicially
affected the results of the election.
9 See the Board's Rules and Regulations and Statements of Procedure,
Series 8, as amended, Secs. 102.62(a), and 101.19(a).
o1 General Tube Company, supra at 445. Martin Marietta Cement,
Southern Division, 215 NLRB 248 (1974).
Craddock-Terry Shoe Corporanon, 181 NLRB 1059. 1060(1970).
i See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 162 (1941):
Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c).
13 In its response in opposition to the Motion for Summary Judgment
show otherwise. Therefore, Respondent presents no
basis for our considering the substantive merits of the
Regional Director's determination. We therefore find
that the certification issued with respect to Unit A
was valid and final and that Respondent is seeking to
relitigate in an unfair labor practice proceeding
matters foreclosed by the Regional Director's final
determination."
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. 2
All issues raised by the Respondent in this
proceeding were or could have been litigated in the
prior representation proceeding, and the Respondent
does not offer to adduce at a hearing any newly
discovered 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.' 3
We therefore find that the Respondent has not raised
any issue which is properly litigable in this unfair
labor practice proceeding. We shall, accordingly,
grant the Motion for Summary Judgment.14
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent operates a health care facility at or
near Mattoon, Illinois, and has been, at all times
material herein, engaged in the business of providing
and performing hospital and health care services.
During the year ending December 31, 1976, which
period is representative of its operation during all
material times herein, Respondent, in the course and
conduct of its business operation, performed services
valued in excess of $500,000 and purchased and
caused to be transported and delivered at its facilities
and motion to dismiss complaint, Respondent contends that the closeness of
the vote requires that the Board reexamine the Regional Director's decision.
Respondent contends that if six employees, the challenges to whose ballots
were overruled, voted against the Union as the parties anticipated, the vote
would be 168 to 167 in favor of the Union, and that the challenge to Lauda's
ballot which was sustained by the Regional Director would therefore be
determinative. The Board refuses to engage in such speculation regarding
the voting preference of employees and therefore finds no special
circumstances exist herein.
14 In view of our decision to grant the General Counsel's Motion for
Summary Judgment, Respondent's motion to dismiss complaint is denied.
In its answer, Respondent denies that certain individuals were its
supervisors "at all times material herein," but admits that certain individuals
have been its agents or supervisors during various specified periods of time.
Inasmuch as Respondent concedes that it has refused to recognize and
bargain with the Union, we find it unnecessary to make any findings as to
which individuals occupied supervisory positions on any given date.
799
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
goods and materials valued in excess of $50,000,
which were transported and delivered to its facilities
in Illinois directly from points located outside the
State of Illinois.
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.
II. THE LABOR ORGANIZATION INVOLVED
Retail Store Employees Union, Local 418, Profes-
sional and Health Care Division is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
I. The unit
The following employees of the Respondent
constitute a unit appropriate for collective-bargain-
ing purposes within the meaning of Section 9(b) of
the Act:
All full-time and regular part-time service and
maintenance, technical, and office clerical em-
ployees employed by the Respondent at Charles-
ton Community Memorial Hospital, The Mat-
toon Memorial Hospital, and Sarah Bush Lincoln
Health Center, excluding professional employees,
guards and supervisors as defined in the Act.
2. The certification
On March 24, 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 14, designated the Union as their
representative for the purpose of collective bargain-
ing with the Respondent.
The Union was certified as the collective-bargain-
ing representative of the employees in said unit on
April 22, 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 28, and at all times
thereafter, the Union has requested the Respondent
to bargain collectively with it as the exclusive
collective-bargaining representative of all the em-
ployees in the above-described unit. Commencing on
or about May 10, and continuing at all times
thereafter to date, the 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 the Respondent has,
since May 10, 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.
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 opera-
tions described in section 1, 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 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
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 certifica-
tion as beginning on the date Respondent commenc-
es to bargain in good faith with the Union as the
recognized bargaining representative in the appropri-
ate 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
(C.A. 5, 1964), cert. denied 379 U.S. 817 (1964);
Burnett Construction Company, 149 NLRB 1419, 1421
(1964), enfd. 350 F.2d 57 (C.A. 10, 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Area E-7 Hospital Association is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
800
AREA E-7 HOSPITAL ASSN.
2. Retail Store Employees Union Local 418,
Professional and Health Care Division, is a labor
organization within the meaning of Section 2(5) of
the Act.
3. All full-time and regular part-time service and
maintenance, technical, and office clerical employees
employed by Respondent at Charleston Community
Memorial Hospital, the Mattoon Memorial Hospital,
and Sarah Bush Lincoln Health Center, excluding
professional employees, guards and supervisors as
defined in the Act, constitute a unit appropriate for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. Since April 22 the above-named labor organi-
zation 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 10, 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, Respon-
dent has interfered with, restrained, and coerced, and
is interfering with, restraining, and coercing, employ-
ees in the exercise of the rights guaranteed to 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)( ) 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 Respondent,
Area E-7 Hospital Association, Mattoon, Illinois, 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 Retail Store Employ-
ees Union, Local 418, Professional and Health Care
Division, as the exclusive bargaining representative
of its employees in the following appropriate unit:
All full-time and regular part-time service and
maintenance, technical, and office clerical em-
ployees employed by the Respondent, at Charles-
ton Community Memorial Hospital, the Mattoon
Memorial Hospital, and Sarah Bush Lincoln
Health Center, excluding professional employees,
guards and supervisors 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:
(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 under-
standing is reached, embody such understanding in a
signed agreement.
(b) Post at Charleston Community Memorial
Hospital, the Mattoon Memorial Hospital, and Sarah
Bush Lincoln Health Center copies of the attached
notice marked "Appendix." 15 Copies of said notice,
on forms provided by the Regional Director for
Region 14, 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 conspicu-
ous 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 14, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
15 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 Retail
Store Employees Union, Local 418, Professional
and Health Care Division, 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 employees
in the exercise of the rights guaranteed them by
Section 7 of the Act.
801
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 service
and maintenance, technical, and office
clerical employees employed by the Employ-
er at Charleston Community Memorial
Hospital, The Mattoon Memorial Hospital,
and Sarah Bush Lincoln Health Center,
excluding professional employees, guards
and supervisors as defined in the Act.
AREA E-7 HOSPITAL
ASSOCIATION
802