Doctors Osteopathic Hospital

National Labor Relations Board - Board Decisions

May 23, 1979

242 N.L.R.B. 447 (N.L.R.B. 1979)

DOCTORS OSTEOPATHIC HOSPITAL
Doctors Osteopathic Hospital and American Feder-
ation of State, County and Municipal Employees,
District Council 85, AFL-CIO. Case 6-CA-9148
May 23, 1979
DECISION AND ORDER
BY MEMBERS PENELLO, MURPHY, AND TRUESDALE
Upon a charge filed on April 7, 1976, by American
Federation of State, County and Municipal Employ-
ees, District Council 85, AFL-CIO, herein called the
Union, and duly served on Doctors Osteopathic Hos-
pital, herein called Respondent, the General Counsel
of the National Labor Relations Board, by the Re-
gional Director for Region 6, issued a complaint and
notice of hearing on August 31, 1978, 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 January 17, 1974,
following an election conducted in accordance with
the procedures of the Pennsylvania Labor Relations
Board (herein called PLRB), the Union was duly cer-
tified as the exclusive collective-bargaining represent-
ative of Respondent's employees in the unit found
appropriate; and that, commencing on or about Au-
gust 25, 1974, and at all times thereafter, including
April 5, 1976, December 28, 1977, and July 21, 1978,
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 Sep-
tember 29, 1978, Respondent filed its answer to the
complaint admitting in part, and denying in part, the
allegations in the complaint.
On November 16, 1978, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on November 29,
1978, the Board issued an order transferring the pro-
ceeding to the Board and a Notice To Show Cause
why the General Counsel's Motion for Summary
Judgment should not be granted. Respondent there-
after filed an opposition to General Counsel's Motion
for Summary Judgment and a Cross-Motion for Sum-
mary Judgment. Charging Party filed a memorandum
in support of General Counsel's motion, and General
Counsel filed a response to Respondent's Cross-Mo-
tion for Summary Judgment and opposition to Gen-
eral Counsel's motion.
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 General Counsel's Motion for Summary
Judgment and Respondent's Cross-Motion for
Summary Judgment
In its Cross-Motion for Summary Judgment and
statement in opposition to General Counsel's Motion
for Summary Judgment, Respondent argues, for rea-
sons noted below, that the Board should not extend
comity to the certification of the Union issued by the
PLRB but should instead grant Respondent's Cross-
Motion for Summary Judgment. On the other hand,
the General Counsel argues that the Board should
extend comity to the certification issued by the PLRB
and grant his summary judgment request since mat-
ters relating to the election have been previously re-
solved by the PLRB, and the PLRB's resolution of
these matters, through application of its own election
procedures, comports with due process and effectu-
ates the policies of the Act.
A careful review of the record reveals the follow-
ing:
The Union petitioned the PLRB for an election on
February 28, 1973, in a unit of all professional and
nonprofessional employees at the hospital. On March
26 and 27, 1973, the PLRB conducted a hearing on
the Union's petition. As found by the PLRB in its
order and notice of election, which issued on May 29,
1973, the parties stipulated that a hospitalwide unit
comprised of all professional and nonprofessional em-
ployees was appropriate for purposes of collective
bargaining. However, the supervisory status of eight
head nurses was disputed. The PLRB found them to
be supervisors, ineligible to vote, and directed that a
secret-ballot representation election be held on June
13, 1973, with professional employees in the unit
being given an opportunity to vote on whether they
wished to be included in a unit with nonprofessionals.
At the secret-ballot election on June 13 a majority
of the professionals chose to be included in the unit
with nonprofessionals. Counting the ballots of both
the professionals and nonprofessionals, there were
125 votes for the Union, 100 votes for no representa-
tion, and 36 challenged ballots, a sufficient number to
affect the result.
On July 21, 1973, the PLRB held a hearing to de-
termine the validity of the challenged ballots. Follow-
ing the hearing, the PLRB issued a Nisi Order of Cer-
tification on October 18, 1973, in which it found that
242 NLRB No. 65
447
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
two of the challenged voters were eligible and that
eight were not eligible to vote. The PLRB also found
that the 26 remaining challenged voters were not eli-
gible since they were not on the eligibility list and, on
the basis of this finding, certified the Union as the
exclusive bargaining representative of the employees
in the unit previously described.
In the meantime on June 19, 1973, in accordance
with PLRB procedures, Respondent also had filed un-
fair labor practice charges against the Union and ob-
jections to the election.' Respondent alleged seven
specific unfair labor practices and three specific ob-
jections, later reduced to three unfair labor practice
charges and two objections. The PLRB conducted a
hearing on these charges and objections on August 14
and 15, 1973. Thereafter, in its Nisi Order of Dis-
missal, issued on October 18, 1973 (the same date as
its Nisi Order of Certification), the PLRB found that
Respondent had failed to substantiate the unfair la-
bor practice charges and objections, and that they
should be dismissed. Respondent thereafter filed ex-
ceptions to the dismissal of its charges and objections.
On November 20, 1973, oral argument was heard by
the PLRB, and on January 17, 1974, a final order
dismissing the exceptions issued.
Respondent thereafter appealed the final order to
the Pennsylvania Court of Common Pleas for Erie
County. The Court of Common Pleas upheld the
PLRB's decision and dismissed the appeal. Respon-
dent then appealed to the Commonwealth Court of
Pennsylvania. 2 On November 17, 1977, the common-
wealth court issued an Order dismissing the appeal as
moot. And, on June 23, 1978, the Supreme Court of
Pennsylvania (Western District) denied Respondent's
appeal of the commonwealth court's decision.
In addition to the above, we take further note that
in letters dated October 26, 1973; January 22, Octo-
ber 10, and December 16, 1974; March 18, 1976; De-
cember 9, 1977; and July 6, 1978, the Union re-
quested Respondent to bargain with it in the unit
found appropriate, but in letters dated November 15,
1973; April 15, 1976; December 28, 1977; and July
21, 1978; Respondent refused these requests.3 In re-
' Under PLRB procedure complaints about alleged preelection miscon-
duct are denominated "unfair labor practices," while complaints pertaining
directly to the conduct of the election itself are denominated "objections."
2 On November 20, 1975, the commonwealth court issued an opinion dis-
missing the appeal as untimely filed. Respondent appealed this dismissal to
the Pennsylvania Supreme Court which, on July 8, 1977, reversed the com-
monwealth court's decision that the appeal was untimely and remanded the
case for reconsideration of the merits of the initial appeal.
In its answer to the complaint, Respondent generally denied the allega-
tions of the complaint relating to the various PLRB and Pennsylvania court
proceedings noted above and also generally denied the complaint allegations
respecting the various requests to bargain and the refusals. Respondent,
however, has not disputed the authenticity and the receipt of the attach-
ments to the General Counsel's Motion for Summary Judgment which estab-
sponse to certain of these refusals to bargain, the
Union, on April 7, 1976, filed an unfair labor practice
charge with the Board, alleging that Respondent's re-
fusal to bargain was in violation of Section 8(a)(5)
and (I) of the Act.4 On May 26, 1976, the Regional
Director for Region 6 notified the parties that action
on the Union's charge was being deferred until the
conclusion of the PLRB proceedings before the Penn-
sylvania courts. Upon the conclusion of those pro-
ceedings, the Regional Director, on August 31, 1978,
issued the instant complaint.
After careful consideration and review of the rec-
ord and of the arguments of the respective parties, we
have decided to accord comity to the PLRB certifica-
tion, and, therefore, to grant the General Counsel's
Motion for Summary Judgment and to deny Respon-
dent's Cross-Motion for Summary Judgment. Under
our prior decisions, we will accord comity to a state
certification where "the state proceedings reflect the
true desires of the affected employees, election irregu-
larities are not involved, and there has been no sub-
stantial deviation from due process requirements."'
We find that the PLRB certification has met these
standards in the instant case.
At the outset, we note that in this case while Re-
spondent denied the appropriateness of the bargain-
ing unit in its answer to the complaint, it has not
raised the issue in its response to the Motion for Sum-
mary Judgment. In any event, we accord comity to
the PLRB's unit determination. 6
lish the fact of these state proceedings and the various requests and refusals
to bargain. We have taken official notice of the state proceedings. Duquesne
Electric and Manufacturing Company, 212 NLRB 142 (1974). We note also
the various requests and refusals to bargain. Otis Hospiral, Inc., 226 NLRB
1383 (1976).
' on August 25, 1974, Public Law 93-360, 88 Stat. 395., had become effec-
tive and had expanded the coverage of the National Labor Relations Act to
include nonprofit health care institutions.
5
Allegheny General Hospital, 230 NLRB 954, 955 (1977). Member Penello
dissented in Allegheny General Hospital and refused to grant comity to the
PLRB certification of a unit composed of the employer's maintenance de-
partment employees, inasmuch as he did not believe such a unit was appro-
pnate for collective bargaining. Here, however, he joins his colleagues in
extending comity because, unlike Allegheny, the appropriateness of the
PLRB certified unit is not disputed.
6 Respondent stipulated at the initial PLRB hearing that the unit was
appropriate. In the election professionals were given an opportunity to vote
on their unit placement and a majority voted for inclusion with nonprofes-
sionals. Under these circumstances, we find that the unit, which includes all
of Respondent's employees is an appropriate unit for the purposes of collec-
tive bargaining in the health care industry. The unit is:
All full-time and part-time professional and nonprofessional employees,
excluding confidential, supervisory, first-level supervisory, management
level employees and guards as defined in the Act.
In extending comity to the PLRB's unit determination. we are aware of
the Third Circuit's decision denying enforcement of our accordance of com-
ity to a PLRB certification in Memorial Hospital of Roxborough, 220 NLRB
402 (1975) (Member Penello dissenting), enforcement denied 545 F.2d 351
(3d Cir. 1976), supplemental decision 231 NLRB 419 (1977). We find Rox-
borough inapposite to the instant case, however, since there the appropriate
unit was at issue before the PLRB, while in this case it was not: the unit is
presumptively appropriate under the Act; and the unit placement of profes-
sionals satisfies the first proviso to Sec. 9(b) of the Act.
448
DOCTORS OSTEOPATHIC HOSPITAL
In its Cross-Motion for Summary Judgment, Re-
spondent asserts the following contentions in support
of its position:
(1) The Employer was denied due process in
that it was constrained by Pennsylvania law
from taking any disciplinary action against ac-
tive and vocal prounion solicitation by its super-
visors, and therefore the Board cannot extend
comity to the PLRB's certification.
(2) Recognition of the PLRB certification
would represent a substantial deviation from the
Board's due process requirements since the par-
ties did not enter into a final and binding agree-
ment as to voter eligibility and the PLRB did not
make an independent determination with respect
to the eligibility date.
(3) The Board cannot extend comity to the
PLRB's certification since the Pennsylvania
courts have ruled that the State Board did not
have jurisdiction over the Employer, thereby
rendering the certification null and void.
With respect to the first contention, the record
shows:
The PLRB found that two head nurses who were
first-level supervisors had campaigned in support of
the Union for a time immediately preceding the elec-
tion. After detailing particular incidents of campaign-
ing, however, the PLRB concluded that the cam-
paigning did not warrant setting aside the election
since the campaign statements were neither threaten-
ing nor coercive. The PLRB also concluded that there
was no evidence that the supervisors had been acting
as agents of the Union, a factor significant under
PLRB law, since first-level supervisors may organize
separately and are not considered agents of the Em-
ployer.'
We find that the standard used by the PLRB-with
its general prohibition of supervisory campaigning
which is either threatening or coercive-accords with
due process and insures that the election reflected the
true wishes of the employees. Moreover, like the
PLRB, where supervisory conduct is not threatening
or coercive, the NLRB will not automatically set
aside an election because supervisors participated in
the union campaign.8
' The PLRB also noted that Respondent could have stopped the cam-
paigning simply by telling the supervisors to stop. Respondent, however,
argues that it could not do so since these low-level supervisors had the right
to unionize. While this is so, low-level supervisors, under Pennsylvania law,
may organize only in supervisory units. Thus, while the two supervisors were
free to campaign among other low-level supervisors. Respondent was not
required to permit them to campaign for a union for the rank and file.
I See, e.g.. Rocky Mountain Bank Note Company, 230 NLRB 922 (1977);
Garo Aircraft Corporation, 220 NLRB 187 (1975)
With respect to the second argument which Re-
spondent raises, the record shows that in its Nisi Or-
der of Certification the PLRB stated that "twenty-six
(26) of the thirty-six (36) ballots that were challenged
were cast by employees who were not on the list of
eligible voters issued by the Board with its Order and
Notice of Election .... " Respondent argues that the
PLRB erred when it also stated that there was a
"meeting of the minds" involving voting matters, and
that the eligibility list was "apparently agreed to at
the hearing." Respondent further argues that PLRB's
use of a census data sheet as the allegedly agreed-to
eligibility list effectively precluded the PLRB from it-
self determining a specified cutoff date for eligibility.
It is not completely clear from Respondent's brief
in support of its cross-motion whether Respondent is
contending here that the PLRB erred in its basis for
excluding the 26 employees because, in fact, there
was no eligibility list agreed to or whether the a-
greed-to list was defective in the absence of a further
"written and signed" agreement to the effect that the
eligibility list was final and binding. In either event,
we reject Respondent's argument, since assuming, ar-
guendo, that there was no list agreed to or that the list
was defective, the cutoff date for eligibility would ap-
parently have been, by state statute, the filing date of
the petition; i.e., February 23, 1973. The 26 employ-
ees who were excluded by the PLRB as not on the
eligibility list were all hired after the date the petition
was filed and, accordingly, were also ineligible on that
basis.
Respondent's argument on this point essentially
raises the question whether the Board may recognize
the PLRB certification where the PLRB used an eligi-
bility date different from that normally used by the
Board. The answer to that question in this proceeding
is in the affirmative. Thus, we find nothing in the
PLRB procedure for determining eligibility which is
incompatible with either due-process requirements or
the assuring that the election reflected the true wishes
of the employees. We have repeatedly held that minor
variations from our election procedures will not pre-
vent us from recognizing state certifications.9 It is
only where the state agency's procedure is clearl) re-
pugnant to the Act that we will refuse comity.1°
In accord with these considerations, we note first
that nothing in the Act specifies the date for eligibility
to vote in a representation election. It is true that
under Board procedure the eligibility cutoff date is
normally the payroll period ending immediately be-
fore the date of the direction of election. This cutoff
date is a matter of administrative discretion, however.
It is not dictated by considerations of due process. In
fact, as Respondent recognizes, the Board in certain
9See, e.g., West Indian Co., Ltd. 129 NLRB 1203 (1961).
io Brookhaven Memorial Hospital, 214 NLRB 1010 (1974).
449
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
circumstances allows the parties to agree to a differ-
ent eligibility date and to litigate the date at the hear-
ing." The cutoff date used by the PLRB is compatible
with due process and with assuring that the election
accurately reflected the true desires of the employees.
Similarly, it is not necessary for purposes of due
process or in order to assume a fair election that any
agreed-to eligibility list be signed by the parties.
While such a procedure may substantially eliminate
future litigation on eligibility questions, and therefore
may be administratively desirable, the alternative
method used by the PLRB-a hearing and appeal to
the PLRB of eligibility questions-is sufficient to as-
sure that the eligibility list includes the eligible voters.
Accordingly, we find that the PLRB disposition on
this issue satisfied due process and was consistent
with assuring an election which would accurately re-
flect the true desires of the employees.
Finally, Respondent argues that the Pennsylvania
Commonwealth Court's dismissal of its appeal as
moot, on the basis of In re Employees of Brownsville
General Hospital,'2 was a finding that the PLRB did
not have jurisdiction over it during the time period in
question. General Counsel, on the other hand, argues
that both here and in Brownsville the finding of moot-
ness was a recognition by the Pennsylvania court that
exclusive jurisdiction over hospitals like Respondent,
as of August 25, 1974, rested with the NLRB.' 3 We
agree with the General Counsel. The finding of moot-
ness, as a legal doctrine, goes to the question of the
existence of a present controversy, not to the question
of the PLRB's jurisdiction. Thus, mootness arises
"when a determination is sought on a matter which,
when rendered, cannot have any practical effect on
the existing controversy."'4 While the Pennsylvania
court obviously could have rendered an opinion on
whether the PLRB had jurisdiction over Respondent,
that decision would have been, in the court's view,
superfluous, since jurisdiction was now vested in the
NLRB.' The court did not, however, question the
PLRB'sjurisdiction over Respondent as of the time of
the election and certification. Indeed, the parties
stipulated to the PLRB's jurisdiction at the hearing.
Accordingly, we conclude that the PLRB certification
is not void for want of jurisdiction at the time of its
issuance.
As an alternative to its Cross-Motion for Summary
Judgment, Respondent argues that it is entitled to an
evidentiary hearing to prove that: (I) prounion solici-
1l NLRB Casehandling Manual, Part Two, Representation Proceedings,
sec. # 11230 (1975).
2 464 Pa. 151, 346 A.2d 260 (1975).
13 See fn. 4, supra.
14 Leonhart v. McCormick. 395 FSupp. 1073 (W.[).Pa., 1975).
a1 See also Allegheny General Hospital, 230 NL.RB at 954, where the Board
rejected that respondent's reliance on Brownsville for a similar argument.
tation by its supervisors coerced employees in the ex-
ercise of their rights; (2) no agreement was reached
between the parties on voting eligibility; (3) the
PLRB did not have jurisdiction over Respondent;
and (4) PLRB agents' "fraternization" with union
representatives, which was observed by employees
who had not yet voted, had a detrimental effect on
the election.
It is axiomatic that parties do not have an absolute
right to a hearing in a proceeding such as the instant
one. It is only when the moving party presents a pri-
ma facie showing of substantial and material issues
which would warrant setting aside the election that it
is entitled to an evidentiary hearing. It is clear that
absent arbitrary action this qualified right to a hear-
ing satisfies the constitutional requirements of due
process.'6 Applying these standards, it is clear that
Respondent is not entitled to a hearing in this pro-
ceeding.
We note with respect to its contentions regarding
the first three issues listed supra, and its entitlement to
a hearing on these issues, that Respondent argues that
certain "material facts" are not now before the Board
for decision. Respondent does not indicate what those
facts are. Respondent also argues that it has evidence,
not previously known during the pendency of the
PLRB proceedings, involving these issues. But Re-
spondent has not supplied affidavits nor detailed the
nature of this alleged newly discovered evidence. Re-
spondent also claims that the PLRB decisions and
orders attached to the General Counsel's Motion for
Summary Judgment do not fully set forth the facts
necessary for the Board to consider certain of the is-
sues before it presently. However, Respondent has
not indicated how these documents are deficient and
how the transcripts of the PLRB proceedings, which
Respondent has offered to submit, will materially af-
fect the proceeding here.
With respect to the fourth issue on which Respon-
dent seeks a hearing, i.e., the alleged fraternization of
PLRB agents with union representatives, the PLRB
found that one union representative and two PLRB
agents were seen talking as the agents left the prem-
ises during a break in voting. The three were observed
speaking together for a few minutes. They then
walked down a ramp leading out of the hospital
where they separated and went their respective ways.
The PLRB noted that there was no claim or hint of
wrongdoing on the part of any of the involved parties,
and it rejected this incident as having a bearing or
effect on the election's outcome. Respondent argues
that the PLRB failed to take account of the fact
16 GT'E lxenkurt, Incorporated. 218 NLRB 929 (1975); Heavenl,y Valley Ski
Area, a ('alofrnia Corporation, and Heaenly Ialley, a Partnership. 215
NLR 734 (1974); Amalgamated lothing Workers oJ America l4'inmield
Manu/lacuring ('omrpan. Inc. v. N L.R B. 424 F.2d 818 (D.C.Cir. 1970).
450
DOCTORS OSTEOPATHIC HOSPITAL
(noted in the transcript before the PLRB) that nonsu-
pervisory employees who had not voted saw this inci-
dent. It further argues that it has newly discovered
evidence involving other examples of similar fraterni-
zation but has declined to elaborate such evidence to
the Board at this time.
We conclude that Respondent must do more than
allege the omission of material facts or argue that it
now has evidence, not previously discovered, before it
is entitled to a hearing. At a minimum, Respondent
must disclose at this stage of the proceeding the na-
ture of the new evidence which it allegedly possesses
so that the Board can intelligently evaluate whether
that evidence warrants a hearing now. This Respon-
dent has failed to do. We have already rejected as
grounds for granting Respondent's Cross-Motion for
Summary Judgment the first three issues on which it
alternatively alleges that it is entitled to a hearing. We
now further find that it is not entitled to a hearing on
those issues. With respect to the issue of PLRB agent
"fraternization" on which it also seeks a hearing, we
now deny that request also and instead extend comity
to the PLRB's resolution of that issue. It is manifest
that that resolution neither violated due process nor
the purposes of the Act.
In sum, it is well settled that in the absence of new-
ly 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 liti-
gated in a prior representation proceeding.'7
All issues raised by Respondent in this proceeding
were or could have been litigated in the prior repre-
sentation proceeding, and Respondent has not indi-
cated the nature of certain alleged newly discovered
evidence which it has not stated was previously un-
available, nor does it allege that any special circum-
stances exist herein which would require the Board to
reexamine the decision made in the representation
proceeding. We therefore find that Respondent has
not raised any issue which is properly litigable in this
unfair labor practice proceeding. Accordingly. we
grant the General Counsel's Motion for Summary
Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONI)ENT
At all times material herein, Respondent has been,
and is now, a private nonprofit corporation engaged
17See Pittsburgh Plate Glass Co. v. 1RB. 313 U.S 146. I62 (1941)
Rules and Regulations of the Board, Secs. I02.67(t) and 102.6
9(c).
in providing health services in Erie, Pennsylvania.
During the past year Respondent, in the course and
conduct of its business operations, performed services
valued in excess of $250,000. During the same period,
Respondent purchased and received goods valued in
excess of $50,000 directly from firms located outside
the Commonwealth of Pennsylvania.
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.
1. THE LABOR ORGANIZATION INV()LVEI)
American Federation of State, County and Munici-
pal Employees, District Council 85, AFL CIO, is a
labor organization within the meaning of Section 2(5)
of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. 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 professional
and nonprofessional employees, excluding confi-
dential, supervisory, first-level supervisory, man-
agement-level employees and guards as defined
in the Act.
2. The certification
On June 13, 1973, a majority of the employees of
Respondent in said unit, in a secret-ballot election
conducted under the supervision of the Pennsylvania
Labor Relations Board, 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 January 17, 1974, and the Union contin-
ues 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 October 26, 1973. 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 November 15, 1973, and in particular on and
451
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
after August 25, 1974, and continuing at all times
thereafter to date, Respondent has refused, and con-
tinues 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
October 7, 1975, i.e., 6 months before the filing of the
instant charge, 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 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 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 () 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, 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 Con-
struction 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. Doctors Osteopathic Hospital is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. American Federation of State, County and Mu-
nicipal Employees, District Council 85, AFL-CIO, is
a labor organization within the meaning of Section
2(5) of the Act.
3. All full-time and regular part-time professional
and nonprofessional employees, excluding confiden-
tial, supervisory, first-level supervisory, management-
level employees and guards as defined in the Act,
constitute a unit appropriate for the purposes of col-
lective bargaining within the meaning of Section 9(b)
of the Act.
4. Since January 17, 1974, 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 October 7, 1975, 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, Doc-
tors Osteopathic Hospital, Erie. Pennsylvania, its offi-
cers, 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 American Federation of
State, County and Municipal Employees, District
Council 85, AFL-CIO, as the exclusive bargaining
representative of its employees in the following ap-
propriate unit:
All full-time and regular part-time professional
and nonprofessional employees, excluding confi-
dential, supervisory, first-level supervisory, man-
agement-level employees and guards as defined
in the Act.
452
DOCTORS OSTEOPATHIC HOSPITAL
(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 Doctors Osteopathic Hospital copies of
the attached notice marked "Appendix."' Copies of
said notice, on forms provided by the Regional Direc-
tor for Region 6, after being duly signed by Respon-
dent'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 em-
ployees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said no-
tices are not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director for Region 6, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
is 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 Judg-
ment of the United States Court of Appeals Enforcing an order of the Na-
tional Labor Relations Board."
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL. LABOR REl.AIIONS BOARD
An Agenc, of the nited States Government
WI W1.1. NT refuse to bargain collectivelN
concerning rates of pay, wages, hours. and other
terms and conditions of employment with
American Federation of State, Count and Mu-
nicipal Employees. District Council 85, AF.L-
CIO, as the exclusive representative of the em-
ployees in the bargaining unit described beloi.
VW'F xV.il. Noi in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them hby
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
agreement. The bargaining unit is:
All full-time and regular part-time professional
and nonprofessional employees, excluding confi-
dentiali. supervisory, first-level supervisory. man-
agement-level employees and guards as defined
in the Act.
DOCTORS OSrEOPA1HIIC HOSPITAI
453