FPA Medical Management, Inc.

National Labor Relations Board - Board Decisions

Aug 3, 2000

331 N.L.R.B. 936 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 936
FPA Medical Management, Inc. and United Health
Care Employees NUHHCE, AFSCME, AFL–
CIO. Case 28–CA–14461
August 3, 2000
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS LIEBMAN AND
HURTGEN
On June 10, 1997, the National Labor Relations Board
issued an unpublished Decision and Certification of Rep-
resentative in Case 28–RC–5480 in which United Health
Care Employees (the Union) was certified as the exclu-
sive collective-bargaining representative of a unit of cer-
tain nonphysician medical support staff employees em-
ployed by FPA Medical Management, Inc. (the Em-
ployer or the Respondent). The Board adopted the Re-
gional Director’s recommendation that the Employer’s
election objections be overruled, and, more specifically,
adopted his findings that the supervisory status of the
Employer’s physicians had been fully litigated as part of
a bargaining unit determination in an earlier representa-
tion proceeding, Case 28–RC–5449, and those physicians
had been found to be employees; that therefore, consis-
tent with the earlier case and without need of further liti-
gation, the physicians were not the statutory supervisors
of the staff employees; and that, accordingly, the physi-
cians’ conduct in support of the Union had not improp-
erly influenced the staff employees’ election choice.
On October 22, 1997, the Board issued a Decision and
Order in the instant unfair labor practice proceeding,1 in
which it concluded that the Respondent violated Section
8(a)(5) and (1) of the Act by refusing to bargain with the
Union. The Board found, inter alia, that the supervisory
status of the physicians had been fully litigated in Case
28–RC–5449, in which the Board found the physicians
not to be supervisors, and that further litigation of this
issue would not be permitted in these circumstances. See
Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162
(1941).
Thereafter, the Respondent filed a petition for review
with the United States Court of Appeals for the District
of Columbia Circuit, and the Board filed a cross applica-
tion for enforcement of its Order. On September 29,
1998, the court issued its opinion granting the petition for
review, denying the cross application for enforcement,
and remanding to the Board.2 In the court’s view, the
Board traditionally has applied its “no relitigation” rule
in 8(a)(5) refusal-to-bargain cases to preclude relitigation
of an issue that could have been raised in an earlier rep-
resentation proceeding involving the same employer,
union and bargaining unit.3 In the instant case, the court
opined, the Board appeared to have expanded its no-
relitigation rule by holding that an issue resolved in an
earlier representation proceeding determining the
boundaries of one bargaining unit could not be relitigated
in a later representation case involving a different bar-
gaining unit. Accordingly, the court remanded this unfair
labor practice case for the Board to explain its expansion
of its “no relitigation” rule in these circumstances under
Board precedent, or to provide an acceptable explanation
for its departure from that precedent. The court also
stated that “[i]f the Board cannot do so, it must recon-
sider the staff supervision issue, as appropriate,” in the
instant case. 157 F.3d at 914.

1 324 NLRB 802.
2 Sub nom. Thomas Davis Medical Centers v. NLRB, 157 F.3d 909.
The Board accepted the court’s remand and invited the
parties to file statements of position regarding the issues
raised by the court’s opinion. Thereafter, the General
Counsel, the Union, and the Respondent all filed state-
ments of position with the Board.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
I.
As the court noted, the Board’s previous decision in
this case found, in effect, that the instant unfair labor
practice case was “related” to the representation proceed-
ing in Case 28–RC–5449 involving the physicians’ unit
and that therefore the Respondent was precluded from
relitigating the supervisory status of the physicians in this
case involving the support staff unit. We acknowledge
that the Board made this finding without adequate expla-
nation. As noted by the court, the Board has traditionally
applied its “no relitigation” rule in cases where the bar-
gaining unit in both the unfair labor practice case and the
representation case are the same.4
In their statements on remand, the General Counsel
and the Union contend that Board precedent supports the
extension of the “no relitigation” rule to cases involving
the same employer and union but different units. The
Respondent contends that Board and court precedent
weighs against such an extension.
We find, however, that we need not decide this issue.
Rather, as discussed below, we find that, even assuming
that the physicians are statutory supervisors, and viewing
the evidence in the light most favorable to the Respon-
dent, the Respondent has failed to meet its burden of
3 See Sec. 102.67(f) of the Board’s Rules and Regulations. See also
Shadow Broadcast Services, 323 NLRB 1002 (1997), cited by the
court.
4 But cf. HeartShare Human Services of New York, 320 NLRB 1
(1995) (In preelection representation case decision, the Board finds that
a single facility unit is appropriate, denying the employer the right to
relitigate its contention that only an employerwide unit is appropriate,
on grounds that the Regional Director had previously found that a unit
limited to another similar facility of the same employer was appropri-
ate, and the employer had not requested review of that finding.).
331 NLRB No. 117
FPA MEDICAL MANAGEMENT 937
presenting a prima facie case of objectionable election
interference.
II.
The Employer5 is a health care institution within the
meaning of Section 2(14) of the Act, operating facilities
in Tucson and Green Valley, Arizona. The Union filed
its election petition in Case 28–RC–5480 on December
24, 1996. Thereafter, an election for certain non-
physician medical support staff employees was held pur-
suant to Section 9 of the Act on February 13, 1997. The
Union won the election by a vote of 225 to 177. The
Employer filed the following objection to the election:
Supervisory and management personnel interference on
behalf of the union petitioner in the non-supervisory
employees’ election decision which likely impaired the
employees’ freedom of choice in the election.6
The Employer submitted six affidavits in support of its
objection. All of the affiants were undisputed supervisors
or other management officials with responsibilities relat-
ing to support staff employees at one or the other of the
Employer’s Tucson facilities.
Affiant Kris Hall, a supervisor, testified that during the
weeks leading up to the election, she observed four of the
Employer’s physicians in her work area, whom she iden-
tified by name. She stated that they were wearing buttons
expressing support for the Union.
Affiant Ehab Al-Jamal, a supervisor, testified that, in
an incident 1 to 2 weeks before the election, after he had
delivered literature supplied by the Employer to areas
within his supervision, he was confronted by Karen
Smith, one of the Employer’s physicians. Their meeting
took place in a work area where a number of support
staff employees were present and close enough to hear
what was said. Al-Jamal stated that Smith spoke loudly
of negative legal implications associated with the Em-
ployer’s conduct (apparently relating to its preelection
campaign), and she spoke in support of the Union. Al-
Jamal stated that he was able to respond to Smith’s
statements. He further stated that as she left the area,
Smith spoke directly to some employees, telling them
that they had the right to think and wear what they
wanted. Al-Jamal also testified that he had seen Smith
wearing prounion buttons on many occasions leading up
to the election.
Additionally, Al-Jamal testified that he had seen cop-
ies of a letter circulating throughout his work area in the
weeks preceding the election. A copy of the letter is at-
tached to his affidavit. It is entitled “A Message of Sup-

5 The Respondent was the “Employer” in the representation case.
Therefore, we shall so describe the Respondent in discussing the repre-
sentation case issues.
6 In fact this was the first of two objections the Employer filed. The
second was a boilerplate-language “catch-all” allegation. The Regional
Director overruled this as unsupported by any evidence. This second
objection is not at issue on remand from the court.
port from the Thomas-Davis Physicians.” It is signed by
two of the Employer’s physicians, Keith Dveirin and
Keith Shelman, identified therein as coordinators for the
Union. The letter is directed to the support staff employ-
ees. It sets forth a detailed critique of their terms and
conditions of employment, and it expresses a bond of
solidarity in favor of the Union between the support staff
and the physicians.
Finally, Al-Jamal testified that in the week prior to the
election, he saw Dveirin speaking to three employees
under Al-Jamal’s supervision. According to Al-Jamal,
the physician said that he wanted all of them to vote for
the Union.
Affiant Mary Kallstrom, a supervisor, testified that,
about 1 week before the election, she saw Dveirin enter
her work area and speak to one of her employees. Kall-
strom stated that he identified himself to the employee
and said that “we” physicians are “supporting you,” and
that he hoped that the employee would vote in the elec-
tion. Kallstrom also testified that she had seen copies of
the physicians’ “Message of Support” letter throughout
her work area during the weeks leading up to the elec-
tion.
Affiant Shirley Jones, a manager, testified about a con-
frontation she had with Smith. She stated that 1 or 2 days
before the election, Smith walked into her office unan-
nounced, challenged her about assertedly restrictive work
rules, and then “lectured” her for 10 minutes within ear-
shot of an employees’ working area. Accordingly to
Jones, Smith spoke of the necessity for unions in the
workplace and accused her of improper campaign con-
duct. Jones stated that she responded to Smith’s accusa-
tions and statements. In addition, she noticed that Smith
was wearing two prounion buttons. Jones also testified
that she too had seen copies of the “Message of Support”
letter throughout her work area in the weeks before the
election.
Affiant Dee Noyes, a manager, testified that in the
weeks leading up to the election she saw a number of the
physicians, including Shelman and Smith, wearing pro-
union buttons while they were in areas where Noyes’
employees worked. She also stated that she had seen cop-
ies of the “Message of Support” throughout her employ-
ees’ work areas prior to the election.
Affiant Leticia Ruiz, a supervisor, testified that she at-
tended a staff meeting at one of the Employer’s Tucson
clinics. Ruiz stated that during the meeting, one of the
physicians stood and spoke extensively in support of
having a union at the Employer’s facilities. Ruiz stated
that this meeting occurred just prior to the physicians’
Board election in Case 28–RC–5449. That election took
place on December 5, 1996.
We will assume, for the purpose of evaluating the Re-
spondent’s objection, that the Employer’s physicians are
statutory supervisors. The question before us then is
whether the physicians’ campaign activities in support of
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 938
the Union improperly influenced the medical support
staff employees’ choice, and thereby interfered with the
election. The Board recently restated the applicable legal
standard:
The prounion activities of statutory supervisors may
constitute objectionable conduct warranting setting
aside an election in two situations: (1) when the em-
ployer takes no stand contrary to the supervisors’
prounion conduct, thus leading the employees to be-
lieve that the employer favors the union; or (2) when
the supervisors’ prounion conduct coerces employees
into supporting the union out of fear of retaliation by,
or rewards from, the supervisors. [Footnote citation
omitted.]
Sutter Roseville Medical Center, 324 NLRB 218 (1997).
See also Millsboro Nursing & Rehabilitation Center, 327
NLRB 879 (1999).7
It is undisputed in this case that the Employer took a
stand opposing the Union and that the staff employees
were well aware of it. Thus, the specific question to be
answered is whether the physicians’ prounion conduct
coerced the employees either by retaliatory threats or
promises of benefits. The Employer’s six affidavits es-
tablish that physicians wore prounion buttons regularly
in the weeks leading up to the election. The evidence
also establishes that there were two confrontations be-
tween Smith and management officials concerning cam-
paign matters and related legal issues. Both occurred not
long before the election and in circumstances where staff
employees were in a position to overhear. Further, copies
of a campaign letter, the “Message of Support,” were
circulated to the unit employees in the time preceding the
election. Finally, on different occasions in the time be-
fore the election, physicians told staff employees that
they could wear what they want, think what they want,
and that they all should vote for the Union.

firmed.

7 Member Hurtgen issued a dissenting opinion in Millsboro. How-
ever, he notes that this case differs from Millsboro in that there is no
contention or evidence that any supervisor solicited a card from any
employee.
We have evaluated this evidence in the light most fa-
vorable to the Employer’s position,8 and we find that
neither the statements made by the physicians nor the
campaign letter contain any threats or promises of bene-
fits––explicit or implicit. Further, we find that the physi-
cians’ wearing of prounion buttons does not constitute
any type of objectionable coercion of the unit employees.
Under these circumstances, we find that the Employer
has failed to meet its burden of presenting a prima facie
case of objectionable election interference.9
ORDER
It is ordered that the Board’s Certification of
Representative in Case 28–RC–5480, dated June 10,
1997, is af
IT IS FURTHER ORDERED that the Board’s Decision and
Order in Case 28–CA–14461, 324 NLRB 802, dated
October 22, 1997, is affirmed.

8 Generally, to be considered objectionable, alleged misconduct must
be shown to have occurred between the date of the filing of the election
petition and the date of the election itself—the “critical period.” See,
e.g., Gibraltar Steel Corp., 323 NLRB 601, 603 (1997). Overall, we
have found it reasonable in the circumstances of this case to infer that
the incidents set forth in the affidavits occurred within the critical pe-
riod. However, the Ruiz affidavit referred to a physician’s prounion
expressions of opinion at a meeting which occurred well before De-
cember 24, 1996, the date the petition in this case was filed. Thus, this
incident took place outside the critical period and does not therefore
constitute a basis for setting aside the election.
9 See, e.g., Sutter Roseville Medical Center, supra; National Duct
Corp., 265 NLRB 413 fn. 2 (1982).