Brookhaven Memorial Hospital

National Labor Relations Board - Board Decisions

Sep 28, 1979

245 N.L.R.B. 672 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brookhaven Memorial Hospital Medical Center and
Local 806, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica. Case 29-CA-7318
September 28, 1979
DECISION AND ORDER
BY MEMBERS JENKINS, MURPIIY, AND TRUESDALE
Upon a charge filed on July 10, 1979, by Local 806,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, herein
called the Union, and duly served on Brookhaven
Memorial Hospital Medical Center, herein called Re-
spondent, the General Counsel of the National Labor
Relations Board, by the Regional Director for Region
29, issued a complaint on July 17, 1979, 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
(I) and Section 2(6) and (7) of the National Labor
Relations Act, as amended. Copies of the charge,
complaint, and notice to hearing before an adminis-
trative law judge were duly served on the parties to
this proceeding.
With respect to the unfair labor practices, the com-
plaint alleges in substance that on or about June 12,
1979, following a Board election in Case 29-RC-
4415, the Union was duly certified as the exclusive
collective-bargaining representative of Respondent's
employees in the unit found appropriate' and that,
commencing on or about July 2, 1979, and at all
times thereafter, Respondent has refused, and contin-
ues to date to refuse, to bargain collectively with the
Union as the exclusive bargaining representative, al-
though the Union has requested and is requesting it
to do so. On July 25, 1979, Respondent filed its an-
swer to the complaint admitting in part, and denying
in part, the allegations in the complaint.
On August 6, 1979, counsel for the General Coun-
sel filed directly with the Board a Motion for Sum-
mary Judgment. Subsequently, on August 9, 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
I Official notice is taken of the record in the representation proceeding,
Case 29-RC-4415, 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);
Follerr Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968); Sec.
9(d) of the NLRA, as amended.
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 its response to
the Notice To Show Cause, Respondent asserts, inter
alia, that the election conducted on January 4, 1979,
in the underlying representation proceeding should
have been set aside for the reasons set forth in its
objections thereto and that the Board erred in adopt-
ing the Regional Director's Report on Objections and
issuing a Certification of Representation.
Counsel for the General Counsel argues that Re-
spondent's contentions are without merit, as they
raise issues which were presented to and decided by
the Board in the underlying representation case.
A review of the record herein, including the record
in Case 29-RC-4415, shows the following: On No-
vember 28, 1978, the Union filed a petition for an
election. On December 11, 1978, the Union and Re-
spondent entered into a stipulation, approved by the
Regional Director for Region 29 on December 12,
1978, providing for a secret-ballot election in which
the appropriate unit for collective bargaining con-
sisted of all full-time and regular part-time business
office clerical employees, including switchboard op-
erators, excluding all other employees, managerial
employees, professional employees, technical employ-
ees, service and maintenance employees, guards, and
supervisors as defined in the Act. On January 4, 1979,
a secret-ballot election was conducted under the di-
rection of the Regional Director for Region 29 among
the employees in the unit described above. The tally
of ballots funished the parties after the election
showed 30 votes for, and 26 against, the Union, with
2 challenged ballots, an insufficient number to affect
the results.
On January 11, 1979, Respondent timely filed ob-
jections to the election, alleging, in essence, that (I)
the Board agent conducting the election improperly
counted as a valid "yes" vote a ballot which was un-
marked on the front but had the word "yes" written
on the back, (2) the Board agent refused to make
arrangements to permit an employee hospitalized at
Respondent's premises to vote from his hospital bed,
(3) the Union's campaign literature contained objec-
tionable misrepresentations, (4) the Board agent
failed to sufficiently identify himself to a challenged
voter and treated the voter in an abrupt manner, (5)
the union agent interrogated an employee and threat-
ened her with reprisals if she did not vote for the
Union, and (6) the cumulative effect of the foregoing
245 NLRB No. 82
672
BROOKHAVEN MEMORIAL HOSPITAL.
alleged conduct destroyed the requisite laboratory
conditions for holding a free election.
On March 23, 1979, the Regional Director for Re-
gion 29 issued a Report on Objections recommending
that Respondent's Objection (a) be sustained inas-
much as the ballot marked on the back should be
declared void; thus the Regional Director recom-
mended that the tally of ballots be revised to reflect
29 votes for, and 26 against, the Union; that the other
objections be overruled; and that the Union be certi-
fied as the representative of the unit employees.
Thereafter, Respondent timely filed exceptions to the
Regional Director's Report on Objections. On June
12, 1979, the National Labor Relations Board issued
a Decision and Certification of Representative2
adopting the Regional Director's findings and recom-
mendations.'
On July 1, 1979, the Union, by telegram, requested
Respondent to bargain with it.4 On July 2, 1979, Re-
spondent refused the request to bargain.
It is well settled that in the absence of newly dis-
covered 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.5
All issues raised by Respondent in this proceeding
were or could have been litigated in the prior repre-
sentation proceeding, and Respondent does not offer
to adduce at a hearing any newly discovered or previ-
ously unavailable evidence, nor does it allege that any
special circumstances exist herein which would re-
quire the Board to reexamine the decision made in
the representation proceeding. We therefore find that
Respondent has not raised any issue which is prop-
erly 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, and has been at all times material
herein, a not-for-profit New York corporation with
an office and place of business in Patchogue, New
2 Not reported in bound volumes of Board Decisions.
'Member Murphy would have found the ballot marked on its back a valid
"yes" vote and would have overruled Objection I in its entirety.
4 The complaint alleges that the Union requested bargaining on June 12 as
well as July 1. 1979. and Respondent's answer does not deny the allegation.
However, the exhibits attached to the General Counsel's Motion for Sum-
mary Judgment contain only the July I telegram request mentioned above,
and the motion itself refers only to a July bargaining request Accordingl,
for the purposes of this proceeding, we shall find that the Union requested
bargaining on July I, 1979.
See Pittsburgh Plate Glass Co v. N.L.RB.. 313 US. 146. 162 1941).
Rules and Regulations of the Board. Secs. 102.67(f) and 102 69(c)
York, where it is engaged in the business of operating
a hospital and providing other health-related sevices.
During the year preceding issuance of the complaint
herein, Respondent derived gross revenues in excess
of $250.000 from the operation of said hospital. and
purchased goods and supplies valued in excess of
$50,000 directly from firms located outside the State
of New York.
We find, on the basis of the foregoing. that Respon-
dent 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. IHF ILABOR OR(GANIZAIION IN\VOI).VID
Local 806. International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, is a labor organization within the meaning
of Section 2(5) of the Act.
Ill. IHE UNIAIR I.ABOR PRA( I(I'ES
A. The Representation Proceeding
I. The unit
The following employees of Respondent constitute
a unit appropriate for collective-bargaining puposes
within the meaning of Section 9(b) of the Act:
All full-time and regular part-time business office
clerical employees, including switchboard opera-
tors, excluding all other employees, managerial
employees, professional employees. technical
employees, service and maintenance employees,
guards and supervisors as defined in the Act.
2. The certification
On January 4, 1979, a majority of the employees of
Respondent in said unit, in a secret-ballot election
conducted under the supervision of the Regional Di-
rector for Region 29, designated the Union as their
representative for the purpose of collective bargaining
with Respondent. The Union was certified as the col-
lective-bargaining representative of the employees in
said unit on June 12, 1979. and the Union continues
to be such exclusive representative within the mean-
ing of Section 9(a) of the Act.
B. The Request To Bargain andt Resptdent's Relfial
Commencing on or about July 1. 1979. and at all
times thereafter. the Union has requested Respondent
to bargain collectively with it as the exclusive collec-
tive-bargaining represent'ttive of all the emplo ees in
673
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the above-described unit. Commencing on or about
July 2, 1979, and continuing at all times thereafter to
date, Respondent has refused, and continues to re-
fuse, 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
July 2, 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 en-
gaged 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 IlABOR PRA(CTI('ES
UPON COMMIRCI
The activities of Respondent set forth in section
III, above, occurring in connection with its operations
described in section 1, above, have a close, intimate.
and substantial relationship to trade, traffic, and com-
merce 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 mean-
ing 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 ap-
propriate unit, and, if an understanding is reached,
embody such understanding in a signed agreement.
In order to insure that the employees in the appro-
priate unit will be accorded the services of their se-
lected bargaining agent for the period provided by
law, we shall construe the initial period of certifica-
tion as beginning on the date Respondent commences
to bargain in good faith with the Union as the recog-
nized bargaining representative in the appropriate
unit. See Mar-Jac Poultry Company, 136 NLRB 785
(1962); Commerce Company d/bla 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. Brookhaven Memorial Hospital Medical Center
is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Local 806, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, is a labor organization within the meaning
of Section 2(5) of the Act.
3. All full-time and regular part-time business of-
fice clerical employees, including switchboard opera-
tors, excluding all other employees, managerial em-
ployees, professional employees, technical employees
service and maintenance employees, 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 June 12, 1979, the above-named labor or-
ganization has been and now is the certified and ex-
clusive 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 July 2. 1979, and at all
times thereafter, to bargain collectively with the
above-named labor organization as the exclusive bar-
gaining representative of all the employees of Re-
spondent in the appropriate unit, Respondent has en-
gaged 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 Sec-
tion 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 Rela-
tions Board hereby orders that the Respondent,
Brookhaven Memorial Hospital Medical Center,
Patchogue. 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 con-
ditions of employment with Local 806, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, as the exclusive bar-
gaining representative of its employees in the follow-
ing appropriate unit:
All full-time and regular part-time business of-
fice clerical employees, including switchboard
operators, excluding all other employees. man-
674
BROOKHAVEN MEMORIAL HOSPITAL
agerial employees, professional employees, tech-
nical employees, service and maintenance em-
ployees. 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 understand-
ing is reached, embody such understanding in a
signed agreement.
(b) Post at its office and place of business in Patch-
ogue, New York, copies of the attached notice
marked "Appendix." 6 Copies of said notice, on forms
provided by the Regional Director for Region 29, af-
ter being duly signed by Respondent's representative.
shall be posted by Respondent immediately upon re-
ceipt thereof, and be maintained by it for 60 consecu-
tive days thereafter, in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, de-
faced, or covered by any other material.
(c) Notify the Regional Director for Region 29. in writ-
ing, within 20 days from the date of this Order, what steps
have been taken to comply herewith.
6 In the event that this Order is enforced by a Judgment ofa United States
Court 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
Now tic To EMPLOYEIS
POSIEI) BY ORI)DR ( 111Ilt
ONl()AI_ LABOR REL.AIIONS B()ARI)
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 Local 806.
International Brotherhood of Teamsters. Chauf-
feurs, Warehousemen and Helpers of America,
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.
WE WILL. upon request, bargain with the
above-named Union, as the exclusive representa-
tive of all employees in the bargaining unit de-
scribed 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 business of-
fice clerical employees, including switchboard
operators. excluding all other employees, man-
agerial employees, professional employees.
technical employees, service and maintenance
employees, guards and supervisors as defined
in the Act.
BROOKHAVEN MEMORIAL HOSPITAL MEDI-
CAL CENTER
675