Desert Hospital

National Labor Relations Board - Board Decisions

Apr 17, 1995

316 N.L.R.B. 1240 (N.L.R.B. 1995)

1240
316 NLRB No. 190
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 In its response to the Notice to Show Cause, the Respondent con-
tends that we should reconsider and reverse the Board’s prior rulings
in the preelection proceeding in light of the Board’s recent decisions
in Angelica Healthcare Services Group, 315 NLRB 1320 (1995),
and Barre-National, 316 NLRB 1320 (1995), regarding the right to
a preelection hearing, and the Supreme Court’s decision in NLRB v.
Health Care & Retirement Corp., 114 S.Ct. 1778 (1994), regarding
supervisory status. We reject these contentions. The Respondent was
in fact afforded a preelection hearing on the issues raised, and its
contentions that the hearing officer’s various procedural rulings re-
garding subpoenas and the admissibility of evidence denied it due
process were fully considered by the Board on review. Nothing in
the Board’s decisions in Angelica and Barre provide any basis to re-
consider the Board’s denial of the Respondent’s request for review
of the Acting Regional Director’s Decision and Direction of Election
or its motion to reopen the record in the representation proceeding.
Nor has the Respondent offered anything to indicate that reconsider-
ation is warranted in light of the Supreme Court’s decision in Health
Care & Retirement. The Respondent merely asserts that the ‘‘prob-
ability’’ that the Union is disqualified because of supervisory partici-
pation is ‘‘substantially increased’’ because of that decision, since,
the Respondent asserts, even more of the Union’s officials would
now be deemed statutory supervisors. We find the Respondent’s
speculative and unsupported assertions an insufficient basis to recon-
sider the Board’s prior rulings.
2 We therefore deny the Respondent’s requests that the complaint
be dismissed and for attorneys’ fees.
Desert Hospital and California Nurses Association,
American Nurses Association. Case 21–CA–
30540
April 17, 1995
DECISION AND ORDER
BY MEMBERS STEPHENS, BROWNING, AND COHEN
Upon a charge filed on February 16, 1995, the Gen-
eral Counsel of the National Labor Relations Board
issued a complaint and notice of hearing on March 2,
1995, alleging that the Respondent has violated Section
8(a)(5) and (1) of the National Labor Relations Act by
refusing the Union’s request to bargain following the
Union’s certification in Case 21–RC–19173. (Official
notice is taken of the ‘‘record’’ in the representation
proceeding as defined in the Board’s Rules and Regu-
lations, Secs. 102.68 and 102.69(g); Frontier Hotel,
265 NLRB 343 (1982).) The Respondent filed an an-
swer admitting in part and denying in part the allega-
tions in the complaint, and asserting affirmative de-
fenses.
On March 23, 1995, the General Counsel filed a
Motion for Summary Judgment with the Board. On
March 24, 1995, the Board issued an order transferring
the proceeding to the Board and a Notice to Show
Cause why the motion should not be granted. On April
7, 1995, the Respondent filed a response.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
Ruling on Motion for Summary Judgment
In its answer, the Respondent admits its refusal to
bargain, but denies that the Union is a labor organiza-
tion and that the unit is appropriate, and otherwise at-
tacks the validity of the certification on the basis of its
contentions in the representation proceeding that the
Union is disqualified from representing the unit em-
ployees because of alleged supervisory participation
and a schism in the organization, and on the basis of
the Board’s disposition of certain challenged ballots. In
addition, in both its answer and its response to the No-
tice to Show Cause, the Respondent contends that it
was denied due process and the right to a hearing on
questions concerning representation by the hearing of-
ficer’s and Board’s rulings in the representation case.
All representation issues raised by the Respondent
were or could have been litigated in the prior represen-
tation proceeding. The Respondent does not offer to
adduce at a hearing any newly discovered and pre-
viously unavailable evidence, nor does it allege any
special circumstances that would require the Board to
reexamine the decision made in the representation pro-
ceeding.1 We therefore find that the Respondent has
not raised any representation issue that is properly lit-
igable in this unfair labor practice proceeding. See
Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146,
162 (1941). Accordingly, we grant the Motion for
Summary Judgment.2
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent has been an
acute care hospital providing health care services with
various facilities located in the Palm Springs, Califor-
nia area. During the 12-month period ending March 2,
1995, the Respondent, in conducting its business oper-
ations, purchased and received at its Palm Springs,
California area facilities, products, goods, and mate-
rials valued in excess of $50,000 directly from points
outside the State of California, and derived gross reve-
nues in excess of $250,000. We find that the Respond-
ent is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act and
a health care institution within the meaning of Section
2(14) of the Act, and that the Union is a labor organi-
zation within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the election held May 13, 1993, the
Union was certified on January 31, 1995, as the collec-
tive-bargaining representative of the employees in the
following appropriate unit:
1241DESERT HOSPITAL
All registered nurses employed by the Employer
at its facilities located at 1150 North Indian Can-
yon Drive, Palm Springs, California; 555 East
Techevah Drive, Palm Springs, California; 1695
North Sunrise Way, Palm Springs, California; 68-
325 Highway 111, Cathedral City, California;
13570 Palm Drive, Desert Hot Springs, Califor-
nia; and 1080 North Indian Canyon Drive, Palm
Springs, California; including Associate Clinical
Nurses; Clinical Nurses; Advanced Clinical
Nurses; Nurse Clinicians; Clinical Nurses-Out-
reach; Clinical Nurse Specialists; Physician Refer-
ral Advisors; Quality Assurance Analysts; Clinical
Nurses-Employee Occupational Health; Nurse
Epidemiologists; Quality Assurance Reviewer-
Home Health; Childbirth Educators; Operating
Room Educators; Nurse Practitioners-Employee
Occupational Health; Case Managers; Coordina-
tors of GI Labs; Coordinators of Cardiac Care
Services; Coordinators of Ophthalmology; Staff
Development-QA Coordinators-Home Health; Co-
ordinators of Patient Care SNF; and all non-
scheduled or on-call employees who average at
least four hours or more actual work per week
during the last 13-week quarter prior to the eligi-
bility date of the election; excluding Clinical
Nurses-Desert and other temporary and traveling
employees; other professional employees; office
clerical employees; guards; and supervisors as de-
fined in the Act.
The Union continues to be the exclusive representative
under Section 9(a) of the Act.
B. Refusal to Bargain
About February 1, 1995, the Union, by letter, re-
quested the Respondent to bargain, and since February
15, 1995, the Respondent has refused. We find that
this refusal constitutes an unlawful refusal to bargain
in violation of Section 8(a)(5) and (1) of the Act.
CONCLUSION OF LAW
By refusing on and after February 15, 1995, to bar-
gain with the Union as the exclusive collective-bar-
gaining representative of employees in the appropriate
unit, the Respondent has engaged in unfair labor prac-
tices affecting commerce within the meaning of Sec-
tion 8(a)(5) and (1) and Section 2(6) and (7) of the
Act.
REMEDY
Having found that the Respondent has violated Sec-
tion 8(a)(5) and (1) of the Act, we shall order it to
cease and desist, to bargain on request with the Union,
and, if an understanding is reached, to embody the un-
derstanding in a signed agreement.
To ensure that the employees are accorded the serv-
ices of their selected bargaining agent for the period
provided by law, we shall construe the initial period of
the certification as beginning the date the Respondent
begins to bargain in good faith with the Union. Mar-
Jac Poultry Co., 136 NLRB 785 (1962); Lamar Hotel,
140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th
Cir. 1964), cert. denied 379 U.S. 817 (1964); Burnett
Construction Co., 149 NLRB 1419, 1421 (1964), enfd.
350 F.2d 57 (10th Cir. 1965).
ORDER
The National Labor Relations Board orders that the
Respondent, Desert Hospital, Palm Springs, California,
its officers, agents, successors, and assigns, shall
Cease and desist from
(a) Refusing to bargain with California Nurses Asso-
ciation, American Nurses Association as the exclusive
bargaining representative of the employees in the bar-
gaining unit.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclu-
sive representative of the employees in the following
appropriate unit on terms and conditions of employ-
ment, and if an understanding is reached, embody the
understanding in a signed agreement:
All registered nurses employed by the Employer
at its facilities located at 1150 North Indian Can-
yon Drive, Palm Springs, California; 555 East
Techevah Drive, Palm Springs, California; 1695
North Sunrise Way, Palm Springs, California; 68-
325 Highway 111, Cathedral City, California;
13570 Palm Drive, Desert Hot Springs, Califor-
nia; and 1080 North Indian Canyon Drive, Palm
Springs, California; including Associate Clinical
Nurses; Clinical Nurses; Advanced Clinical
Nurses; Nurse Clinicians; Clinical Nurses-Out-
reach; Clinical Nurse Specialists; Physician Refer-
ral Advisors; Quality Assurance Analysts; Clinical
Nurses-Employee Occupational Health; Nurse
Epidemiologists; Quality Assurance Reviewer-
Home Health; Childbirth Educators; Operating
Room Educators; Nurse Practitioners-Employee
Occupational Health; Case Managers; Coordina-
tors of GI Labs; Coordinators of Cardiac Care
Services; Coordinators of Ophthalmology; Staff
Development-QA Coordinators-Home Health; Co-
ordinators of Patient Care SNF; and all non-
scheduled or on-call employees who average at
least four hours or more actual work per week
during the last 13-week quarter prior to the eligi-
bility date of the election; excluding Clinical
1242 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 If 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.’’
Nurses-Desert and other temporary and traveling
employees; other professional employees; office
clerical employees; guards; and supervisors as de-
fined in the Act.
(b) Post at its above facilities in the Palm Springs,
California area, copies of the attached notice marked
‘‘Appendix.’’3 Copies of the notice, on forms provided
by the Regional Director for Region 21 after being
signed by the Respondent’s authorized representative,
shall be posted by the Respondent immediately upon
receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to bargain with California
Nurses Association, American Nurses Association as
the exclusive representative of the employees in the
bargaining unit.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain with the Union and
put in writing and sign any agreement reached on
terms and conditions of employment for our employees
in the bargaining unit:
All registered nurses employed by us at our facili-
ties located at 1150 North Indian Canyon Drive,
Palm Springs, California; 555 East Techevah
Drive, Palm Springs, California; 1695 North Sun-
rise Way, Palm Springs, California; 68-325 High-
way 111, Cathedral City, California; 13570 Palm
Drive, Desert Hot Springs, California; and 1080
North Indian Canyon Drive, Palm Springs, Cali-
fornia; including Associate Clinical Nurses; Clini-
cal Nurses; Advanced Clinical Nurses; Nurse Cli-
nicians; Clinical Nurses-Outreach; Clinical Nurse
Specialists; Physician Referral Advisors; Quality
Assurance Analysts; Clinical Nurses-Employee
Occupational Health; Nurse Epidemiologists;
Quality Assurance Reviewer-Home Health; Child-
birth Educators; Operating Room Educators;
Nurse Practitioners-Employee Occupational
Health; Case Managers; Coordinators of GI Labs;
Coordinators of Cardiac Care Services; Coordina-
tors of Ophthalmology; Staff Development-QA
Coordinators-Home Health; Coordinators of Pa-
tient Care SNF; and all nonscheduled or on-call
employees who average at least four hours or
more actual work per week during the last 13-
week quarter prior to the eligibility date of the
election; excluding Clinical Nurses-Desert and
other temporary and traveling employees; other
professional employees; office clerical employees;
guards; and supervisors as defined in the Act.
DESERT HOSPITAL