Carney Hospital

National Labor Relations Board - Board Decisions

Jul 31, 1979

243 N.L.R.B. 826 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Carney Hospital and International Union of Operating
Engineers, Local 877, AFL-CIO. Case -CA-
15904
July 31, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS MURPHY
AND TRUESDALE
Upon a charge filed on April 9, 1979, by Interna-
tional Union of Operating Engineers, Local 877,
AFL-CIO, herein called the Union, and duly served
on Carney Hospital, herein called the hospital or Re-
spondent, the General Counsel of the National Labor
Relations Board, by the Regional Director for Region
1, issued a complaint on April 24, 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
(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 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 March 23, 1979,
following a Board election in Case l-RC-16106 the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate;' and that, commencing
an or about April 4, 1979, and at all times thereafter
Respondent has refused and continues to date to re-
fuse to bargain collectively with the Union as the ex-
clusive bargaining representative, although the Union
has requested and is requesting it to do so. On May 4,
1979, Respondent filed its answer to the complaint
admitting in part and denying in part the allegations
in the complaint.
On May 18, 1979, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment. Subsequently, on May 23, 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
Notice To Show Cause.
I Official notice is taken of the record in the representation proceeding,
Case I-RC-16106, as the term "record" is defined i Secs. 102.68 and
102.69(g) of the Board's Rules and Regulations, Series 8, as amended. See
LTV Elecrosystems, 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); Interrype Co. v. Pene/llo, 269 F.Supp. 573 (D.C.Va. 1967);
Foileu Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968); Sec.
9(d) of the NLRA, as amended.
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 asserts that the
Union's certification was invalid because the unit of
maintenance and engineering employees certified by
the Regional Director is inappropriate for bargaining.
In this regard, Respondent contends that the Re-
gional Director's certification of a separate mainte-
nance and engineering unit ignores the congressional
mandate against undue proliferation of units in the
health care industry. Respondent admits in its answer
that it has refused and continues to refuse to bargain
with the Union, but alleges that it has no legal obliga-
tion to do so. In addition, Respondent argues that the
maintenance and engineering unit certified in the in-
stant case is not separate and distinct from the
broader service and maintenance unit proposed by
Respondent, and that the Regional Director's conclu-
sion that a high degree of community of interest exists
among the members of the certified unit is not sup-
ported by the record.
The General Counsel contends that Respondent's
answer raises no issues other than those fully consid-
ered and decided by the Board in the underlying rep-
resentation proceedings, that Respondent is seeking
to relitigate such issues, and that Respondent makes
no claim that its defenses are based on previously
unavailable evidence.
Our review of the record herein, including the rec-
ord in Case -RC-16106, discloses that the Union
filed a petition for an election on December 14, 1978.
After a hearing, on February 9, 1979, the Regional
Director issued a Decision and Direction of Election
ordering that an election be held in the following ap-
propriate unit:
All maintenance and engineering department
employees, including chief bio-medical techni-
cian, bio-medical technician, chief electrician,
electrician helpers, chief HVAC mechanic,
HVAC mechanics and helpers, plumbers,
plumber helpers, chief carpenter, carpenters, car-
penters helpers, mechanics, groundsmen, chief
painters, painters and firemen employed by the
Hospital at its Dorchester Avenue facility, ex-
cluding all other employees, senior clerks, guards
and supervisors as defined in the Act.
243 NLRB No. 127
826
(ARNLY ISPI Al
On Fehruary 24. 1979, Respondent tiled with the
Board a request for review of the Decision and Direc-
tion of Election. The Board denied the request for
review on March 6., 1979.
An election was conducted on March 9, 1979, in
which 28 votes were cast fo(r the Union and 14 against
the Union, with I challenged ballot. On March 23.
1979, the Regional Director certified the Union as
representative for collective bargaining of the em-
ployees in the aforementioned unit.
Subsequently, by letter dated March 28. 1979, the
Union requested Respondent to bargain with it. Re-
spondent replied by letter dated April 4, 1979. that it
was unwilling to bargain with the Union on the
ground that the unit certified was inappropriate. By
letter dated April 18, 1979, Respondent confirmed its
position that it would not bargain and that it in-
tended to pursue court review of the certification.
It is well settled that in the absence of newl\ 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.2
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 FA(CT
I. THE BUSINESS OF RESPONDENT
Respondent is, and has been at all times material
herein, a Massachusetts corporation engaged in the
operation of a nonprofit general hospital in Boston,
Massachusetts. In the course and conduct of its busi-
ness Respondent causes large quantities of medical
supplies and foodstuffs used by it to be purchased and
transported in interstate commerce and has a gross
annual income in excess of $250,000.
We find, on the basis of the foregoing, that Respon-
dent is, and has been at all times material herein, an
2See Pittsburgh Plate Gs CO V. N L.R.B. 313 U.S. 146 162 (1941):
Rules and Regulations of the Board. Secs. 102.67(f) and 102.691c).
employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act, and that iitxwill
effectuatc the policies of' the Act to assert jurisdiction
herein.
11. 1111 I AB()R ()R(iANlIAII()N IN()I 1 VII)
International Ulnion of Operating .Engineers. Local
877, A FL ('10, is a labor organization within the
meaning of Section 2(5) of the Act.
Ill. tIll t NI'AIR I AO()R PR\( II( IS
A. The Reprewstiltlion Poccc t/ing
1. Ihe unit
The fIllowing employees of Respondent constitute
a unit appropriate for collective-bargaining purposes
within the meaning of Section 9(h) of the Act:
All maintenance and engineering department
employees, including chief bio-niedical techni-
cian, bio-medical technician. chief electrician,
electrician helpers, chief HVAC mechanic.
HVAC mechanics and helpers. plumbers,
plumber helpers, chief carpenter, carpenters. car-
penters helpers, mechanics. groundsmen. chief
painters, painters and firemen employed bh the
Hospital at its Dorchester Avenue facility. ex-
cluding all other employees, senior clerks, guards
and supervisors as defined in Section 2(11 ) of the
Act.
2. The certification
On March 9, 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 , 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 March 23, 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 and Respondent's Re/itsal
Commencing on or about March 28, 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 April 4, 1979, and continuing at all times there-
after to date Respondent has refused and continues to
827
[)E('ISIONS OF NA FIONAI. IABOR RELATIONS BOAR)
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
April 4. 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 (I) of the
Act.
IV. TIlF EFFEC'IT OF t'IliE tNFAIR ABO()R PRA(' I ('IS
UPON COMMER('C
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 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 Poultro Company, Inc., 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 Con-
struction Company, 149 NLRB 1419, 1421 (1964),
enfd. 350 F.2d 57 (10th Cir. 1965).
CONCLUSIONS OF LAW
1. Carney Hospital is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. International Union of Operating Engineers,
Local 877, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. All maintenance and engineering department
employees, including chief' bio-medical technician,
bio-medical technician, chief electrician, electrician
helpers, chief HVAC mechanic, HVAC mechanics
and helpers, plumbers, plumber helpers, chief carpen-
ter, carpenters, carpenter helpers, mechanics.
groundsmen, chief painters, painters. and firemen em-
ployed by the hospital at its Dorchester Avenue facil-
ity: excluding all other employees, senior clerks,
guards, and supervisors as defined in Section 2(11) of'
the Act constitute a unit appropriate fr the purposes
of collective bargaining within the meaning of Section
9(b) of the Act.
4. Since March 23, 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 April 4. 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 in-
terfering 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 engag-
ing 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, Car-
ney Hospital, Boston, Massachusetts, 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 International Union of
Operating Engineers, Local 877, AFL-CIO, as the ex-
clusive bargaining representative of its employees in
the following appropriate unit:
All maintenance and engineering department
employees, including chief bio-medical techni-
cian, bio-medical technician, chief electrician,
electrician helpers, chief HVAC mechanic,
828
C(ARNEY HOSPIT Al
HVAC mechanics and helpers, plumbers.
plumber helpers, chief carpenter. carpenters, car-
penters helpers, mechanics, groundsmen. chief
painters, painters and firemen employed by the
Hospital at its Dorchester Avenue facility, ex-
cluding all other employees, senior clerks, guards
and supervisors as defined in the Act.
(b) In any like or related manner intefering with,
restraining, or coercing employees irn 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 Boston, Massachusetts, facility cop-
ies of the attached notice marked "Appendix."' Cop-
ies of said notice, on forms provided by the Regional
Director for Region 1, after being duly signed by Re-
spondent's representative, shall be posted by Respon-
dent immediately upon receipt thereof, and be main-
tained 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 I, 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 b) 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
Noi ICE To EMIPI.OYIES
POSTFI) BY ORI)ER 0() 1T11
NATIONAl. LABOR RII.AlONS BOARD
An Agency of the United States Government
WiE WILL No( refuse to bargain collectively
concerning rates of pay. wages, hours, and other
terms and conditions of employment with Inter-
national Union of Operating Engineers. Local
877, AFL CIO, as the exclusive representative of
the employees in the bargaining unit described
below.
WE wWIlL 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 em-
ployment, and, if an understanding is reached,
embody such understanding in a signed agree-
ment. The bargaining unit is:
All maintenance and engineering department
employees, including chief bio-medical techni-
cian, bio-medical technician, chief electrician,
electrician helpers, chief HVAC mechanic.
HVAC mechanics and helpers, plumbers,
plumber helpers, chief carpenter, carpenters,
carpenters helpers, mechanics, groundsmen,
chief painters, painters and firemen employed
by the Hospital at our Dorchester Avenue fa-
cility, excluding all other employees, senior
clerks, guards and supervisors as defined in the
Act.
CARNEY HOSPITAL
829