FPA Medical Management, Inc.

National Labor Relations Board - Board Decisions

Oct 22, 1997

324 N.L.R.B. 802 (N.L.R.B. 1997)

802
324 NLRB No. 128
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent’s objection alleged that supervisory personnel,
i.e., physicians employed by the Respondent, improperly campaigned
on behalf of the Union in the subject support staff unit. The Re-
gional Director recommended that the Respondent’s objection be
overruled on the ground that the status of the physicians had already
been fully litigated in Thomas-Davis Medical Centers, Case 28–RC–
5449, in which the physicians were found not to be supervisors, and
the Board adopted the Regional Director’s recommendation by un-
published decision dated June 10, 1997. We note that the Board also
subsequently granted the General Counsel’s Motion for Summary
Judgment and ordered the Respondent to bargain with the Union
with respect to the physicians involved in Thomas-Davis. See 324
NLRB 29 (1997).
2 Having granted the General Counsel’s Motion for Summary
Judgment, we find it unnecessary to address the General Counsel’s
motion to strike certain portions of the Respondent’s answer.
3 The foregoing commerce facts were stipulated to by the Re-
spondent in a Stipulated Election Agreement executed in the rep-
resentation proceeding. Although the Respondent’s answer in the in-
stant case denies similar facts alleged in the complaint, the Respond-
ent’s stipulation to those facts in the representation proceeding pre-
cludes the Respondent from contesting the same facts in the instant
proceeding. To the extent the Respondent’s answer also attempts to
assert additional facts regarding certain stock transactions involving
the Company effective June 27 and November 29, 1996, prior to the
Respondent’s execution of the Stipulated Election Agreement, we
agree with the General Counsel that the Respondent has failed to
show how those facts are relevant to this proceeding or, even assum-
ing they are relevant, why they could not have been raised in the
representation proceeding. Finally, as indicated infra, the Respond-
ent’s answer admits the ultimate jurisdictional allegation of the com-
plaint, and the Respondent’s response specifically states that the Re-
spondent is not opposing the General Counsel’s motion on the basis
of the commerce allegations.
FPA Medical Management, Inc. and United Health
Care Employees, NUHHCE, AFSCME, AFL–
CIO. Case 28–CA–14461
October 22, 1997
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX AND
HIGGINS
Pursuant to a charge filed on June 17, 1997, the
General Counsel of the National Labor Relations
Board issued a complaint and notice of hearing on July
28, 1997, 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 follow-
ing the Union’s certification in Case 28–RC–5480.
(Official notice is taken of the ‘‘record’’ in the rep-
resentation proceeding as defined in the Board’s Rules
and Regulations, Secs. 102.68 and 102.69(g); Frontier
Hotel, 265 NLRB 343 (1982).) The Respondent filed
an answer admitting in part and denying in part the al-
legations in the complaint and asserting affirmative de-
fenses.
On September 15, 1997, the General Counsel filed
a Motion for Summary Judgment. On September 17,
1997, the Board issued an order transferring the pro-
ceeding to the Board and a Notice to Show Cause why
the motion should not be granted. On October 1, 1997,
the Charging Party Union filed a brief in support of
the motion, and on October 2, 1997, the Respondent
filed an opposition to the motion.
Ruling on Motion for Summary Judgment
In its answer and response, the Respondent admits
its refusal to bargain, but attacks the validity of the
certification on the basis of its objection to conduct al-
leged to have affected the results of the election in the
representation proceeding.
All representation issues raised by the Respondent
were or could have been litigated in the prior represen-
tation proceeding.1 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. We therefore find that the Respondent has not
raised any representation issue that is properly litigable
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 Judg-
ment.2 On the entire record, the Board makes the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
Respondent FPA Medical Management, Inc. is now,
and has been at all times material, a corporation duly
organized under, and existing by virtue of, the laws of
the State of Delaware. During the 12-month period
preceding the Stipulated Election Agreement in the
representation proceeding, the Respondent derived
gross revenue in excess of $250,000 from its oper-
ations and, during the same period, purchased and re-
ceived goods and materials valued in excess of
$50,000 directly from suppliers located outside of the
State of Arizona.3
The Respondent admits and we find that the Re-
spondent is now, and has been 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 organization within the meaning of
Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the election held February 13, 1997, the
Union was certified on June 10, 1997, as the exclusive
collective-bargaining representative of the employees
in the following appropriate unit:
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803FPA MEDICAL MANAGEMENT
All Medical Records Techs (I, II), Office
Specialist/Clerks, Lead Office Specialist/Clerks,
Lead Medical Records Techs, Pharmacy Refill
Techs, Lead Medical Techs, LPNs, Lead LPNs,
Medical Assistants (I, II), EKG Techs, Patient
Representatives, Mail Clerks, Outcomes Facili-
tators, Patient Services Coordinators, Ultra-
sonographers, Radiology Techs, Transcript Clerks-
Radiology, Medical Transcriptionists-Radiology,
Film Librarians, CT Technologists, Radiology
Aides (I, II), Lead Film Librarians, Insurance Spe-
cialists, Financial Analysts, Lead Insurance Spe-
cialists, Financial Counselors, Lead Financial
Counselors, Reimbursement Analysts, Ophthalmic
Assistants, Ophthalmic Techs (non-certified), Op-
tical Assistants I, Controllers, CBX Operators,
Maintenance Engineers, Electricians, Maintenance
Assistants, Training Representatives, Audiology
Techs, Audiology Assistants, Opticians (I, II),
Central Supply Techs, Laundry Workers/Central
Supply, Lead Central/Supply Techs and Medical
Transcriptionists employed by the Respondent at
its Tucson and Green Valley, Arizona facilities;
excluding all other employees, guards and super-
visors as defined in the Act.
The Union continues to be the exclusive representative
under Section 9(a) of the Act.
B. Refusal to Bargain
By letter dated June 13, 1997, the Union requested
the Respondent to bargain, and, by letter dated June
24, 1997, the Respondent refused. We find that this re-
fusal constitutes an unlawful refusal to recognize and
bargain in violation of Section 8(a)(5) and (1) of the
Act.
CONCLUSION OF LAW
By refusing on and after June 24, 1997, to bargain
with the Union as the exclusive collective-bargaining
representative of employees in the appropriate unit, the
Respondent has engaged in unfair labor practices af-
fecting commerce within the meaning of Section
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 the law, we shall construe the initial pe-
riod of the certification as beginning the date the Re-
spondent 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, FPA Medical Management, Inc., Tuscon
and Green Valley, Arizona, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with United Health Care
Employees, NUHHCE, AFSCME, AFL–CIO as the ex-
clusive bargaining representative of the employees in
the bargaining 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 Medical Records Techs (I, II), Office
Specialist/Clerks, Lead Office Specialist/Clerks,
Lead Medical Records Techs, Pharmacy Refill
Techs, Lead Medical Techs, LPNs, Lead LPNs,
Medical Assistants (I, II), EKG Techs, Patient
Representatives, Mail Clerks, Outcomes Facili-
tators, Patient Services Coordinators, Ultra-
sonographers, Radiology Techs, Transcript Clerks-
Radiology, Medical Transcriptionists-Radiology,
Film Librarians, CT Technologists, Radiology
Aides (I, II), Lead Film Librarians, Insurance Spe-
cialists, Financial Analysts, Lead Insurance Spe-
cialists, Financial Counselors, Lead Financial
Counselors, Reimbursement Analysts, Ophthalmic
Assistants, Ophthalmic Techs (non-certified), Op-
tical Assistants I, Controllers, CBX Operators,
Maintenance Engineers, Electricians, Maintenance
Assistants, Training Representatives, Audiology
Techs, Audiology Assistants, Opticians (I, II),
Central Supply Techs, Laundry Workers/Central
Supply, Lead Central/Supply Techs and Medical
Transcriptionists employed by the Respondent at
its Tucson and Green Valley, Arizona facilities;
excluding all other employees, guards and super-
visors as defined in the Act.
(b) Within 14 days after service by the Region, post
at its facilities in Tuscon and Green Valley, Arizona,
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804 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 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.’’
copies of the attached notice marked ‘‘Appendix.’’4
Copies of the notice, on forms provided by the Re-
gional Director for Region 28, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent and maintained for 60 con-
secutive days in conspicuous places including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facili-
ties involved in these proceedings, the Respondent
shall duplicate and mail, at its own expense, a copy of
the notice to all current employees and former employ-
ees employed by the Respondent at any time since
June 17, 1997.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a
responsible official on a form provided by the Region
attesting to the steps that the Respondent 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 United Health
Care Employees, NUHHCE, AFSCME, AFL–CIO 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 Medical Records Techs (I, II), Office
Specialist/Clerks, Lead Office Specialist/Clerks,
Lead Medical Records Techs, Pharmacy Refill
Techs, Lead Medical Techs, LPNs, Lead LPNs,
Medical Assistants (I, II), EKG Techs, Patient
Representatives, Mail Clerks, Outcomes Facili-
tators, Patient Services Coordinators, Ultra-
sonographers, Radiology Techs, Transcript Clerks-
Radiology, Medical Transcriptionists-Radiology,
Film Librarians, CT Technologists, Radiology
Aides (I, II), Lead Film Librarians, Insurance Spe-
cialists, Financial Analysts, Lead Insurance Spe-
cialists, Financial Counselors, Lead Financial
Counselors, Reimbursement Analysts, Ophthalmic
Assistants, Ophthalmic Techs (non-certified), Op-
tical Assistants I, Controllers, CBX Operators,
Maintenance Engineers, Electricians, Maintenance
Assistants, Training Representatives, Audiology
Techs, Audiology Assistants, Opticians (I, II),
Central Supply Techs, Laundry Workers/Central
Supply, Lead Central/Supply Techs and Medical
Transcriptionists employed by us at our Tucson
and Green Valley, Arizona facilities; excluding all
other employees, guards and supervisors as de-
fined in the Act.
FPA MEDICAL MANAGEMENT, INC.
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