Fresno Community Hospital

National Labor Relations Board - Board Decisions

Sep 28, 1979

245 N.L.R.B. 1315 (N.L.R.B. 1979)

FRESNO COMMUNITY HOSPITAL
Fresno Community Hospital and Stationary Engineers
Local 39, International Union of Operating Engi-
neers, AFL-CIO. Case 32-CA- 1823
September 28, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS MURPHY
AND TRUESDALE
Upon a charge filed on May 29, 1979, by Station-
ary Engineers Local 39, International Union of Oper-
ating Engineers, AFL-CIO, herein called the Union,
and duly served on Fresno Community Hospital,
herein called Respondent, the General Counsel of the
National Labor Relations Board, by the Regional Di-
rector for Region 32, issued a complaint and notice of
hearing on May 31, 1979, against Respondent, alleg-
ing that Respondent had engaged in and was engag-
ing 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 administrative law
judge were duly served on the parties to this proceed-
ing.
With respect to the unfair labor practices, the com-
plaint alleges in substance that on May 7, 1979, fol-
lowing a Board election in Case 32-RC-340, the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's electronics
and maintenance department employees as a result of
which they were joined with a preexisting unit of en-
gineering department employees to form a combined
appropriate unit' and that, commencing on or about
May 16, 1979, and at all times thereafter, Respondent
has refused, and continues to date to refuse, to bar-
gain collectively with the Union as the exclusive bar-
gaining representative of those employees, although
the Union has requested and is requesting it to do so.
On June 8, 1979, Respondent filed its answer to the
complaint admitting in part, and denying in part, the
allegations in the complaint.
On June 18, 1979, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment and a memorandum in support thereof,
submitting, in effect, that since Respondent's only
'Official notice is taken of the record in the representation proceeding.
Case 32-RC-340, as the term "record" is defined in Secs. 102.68 and
102.69(g) of the Board's Rules and Regulations. Series 8, as amended. See
LTV Electrosystems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (4th Cir.
1968); Golden Age Beverage Co., 167 NLRB 15 (1967), enfd. 415 F.2d 26
(5th Cir. 1969); Intertype Co. v. Penello, 269 F. Supp. 573 (D.CVa.., 1967):
Foller Corp.. 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968): and
Sec. 9(d) of the NLRA. as amended.
factual denial is as to the appropriateness of the bar-
gaining unit, a matter previously litigated before the
Board and decided by it in Case 32-RC-340,2 there
are no litigable issues of fact requiring a hearing. The
General Counsel therefore requests that the Board
find and conclude that Respondent has violated Sec-
tion 8(a)(5) and (1) of the Act and issue an appropri-
ate order.3 Subsequently, on June 20, 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
the Notice To Show Cause.
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 its response to
the Notice To Show Cause, Respondent bases its re-
fusal to bargain on the grounds that the unit found
appropriate by the Board in Case 32-RC-340 is in-
consistent with Board precedent and not an appropri-
ate unit for purposes of collective bargaining. Re-
spondent argues that the Board's finding in that case
violates the congressional mandate of preventing the
proliferation of bargaining units in the health care
industry and that it has not had a hearing on the
appropriateness of a unit combining its engineering,
electronics, and maintenance employees.
The General Counsel contends that all material is-
sues regarding the appropriateness of the unit have
been previously decided by the Board and that Re-
spondent now raises no litigable issues of fact requir-
ing a hearing. We agree with the General Counsel.
Our review of the record herein, including the rec-
ord in Case 32-RC-340, discloses that on May 8,
1978, the Union, which already represented a unit of
the Employer's engineering department employees,
filed a petition seeking to represent certain of the Em-
ployer's electronics and maintenance department em-
ployees. Following a hearing, the Regional Director
issued a Decision and Order on June 28, 1978, in
which he found the unit described in the petition in-
appropriate and dismissed the petition. Thereafter,
the Petitioner filed a request for review of the Re-
gional Director's decision, indicating, in pertinent
part, that it "in effect seeks to enlarge" its engineering
department unit by the addition of two related de-
partments of electronics and maintenance. The Em-
ployer filed an opposition, asserting that the Regional
Director's finding was correct. On August 18, 1978,
the Board granted the Petitioner's request for review.
2241 NLRB 521 (1979). Member Penello dissenting.
' On July 9, 1979, the Charging Party filed a joinder in the General Coun
-
sel's motion.
245 NLRB No. 170
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Subsequently, the Employer filed a brief restating its
opposition to the unit described in the petition,
which, it alleged, would "fragment the Hospital's
maintenance-electronics-engineering function into a
second unit" in contravention to the congressional
mandate against undue proliferation of bargaining
units in the health care industry. On March 28, 1979,
the Board issued its Decision on Review and Direc-
tion of Election,4 finding appropriate a unit consisting
of the Employer's electronics, engineering, and main-
tenance departments and directing a self-determina-
tion election in a voting group composed of the Em-
ployer's electronics and maintenance department
employees to determine if those employees desired to
be included with the already represented engineering
department employees in a single bargaining unit. An
election was held on April 27, 1979. The tally of bal-
lots shows 22 votes cast for and 6 votes cast against
the Union, with no challenged ballots. On May 7,
1979, following the absence of the filing of any objec-
tions, the Regional Director issued a Certification of
Representative.5
It thus appears that Respondent's contentions con-
cerning the appropriateness of the unit were consid-
ered by the Board and rejected in that proceeding
and, therefore, may not be reconsidered here.
It is well settled that in the absence of newly 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 reliti-
gate issues which were or could have been litigated in
a prior representation proceeding.6
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.
'241 NLRB 521.
Throughout the instant proceeding, including the Board's direction of
election, the certification of representative, and the complaint and notice of
hearing, reference to the appropriate unit composed of engineering, mainte-
nance, and electronics department employees as specifically defined in the
Board's Decision on Review and Direction of Election has been inadver-
tently interchanged with the voting group composed of all electronics and
maintenance department employees. However, the evidence herein estab-
lishes that Respondent, by its refusal to bargain with the Union. is contesting
the validity of the unit found appropnate by the Board.
6 See Pitsburgh Plale Glass Co. v. N.LR. B., 313 U.S. 146, 162 (1941), and
Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c).
On the basis of the entire record, the Board makes
the following:
FINDIN(;S OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is a California corporation engaged in
the operation of a nonprofit, acute care hospital. Dur-
ing the past 12 months Respondent in the course and
conduct of its business operations derived gross rev-
enues in excess of $250,000 and purchased and re-
ceived goods and materials valued in excess of
$50,000 which originated at points outside the State
of California.
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.
II. THE LABOR ORGANIZATION INVOLVED
Stationary Engineers Local 39, International
Union of Operating Engineers, 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
(a) At all times herein the Union has been the ex-
clusive bargaining representative of a unit of all the
engineers employed by Respondent for the purpose of
collective bargaining with respect to rates of pay,
wages, hours of employment, or other conditions of
employment and has been a party with Respondent
to a collective-bargaining agreement covering the em-
ployees therein, effective July 1, 1975-June 30, 1978.
(b) On April 27, 1979, a majority of the employees
of Respondent in the following voting group of em-
ployees, in a secret-ballot election conducted under
the supervision of the Regional Director for Region
32, designated the Union as their representative for
the purpose of collective bargaining with Respondent
and, by so doing, indicated a desire to be included in
and become a part of the unit designated in subpara-
graph (a) above:
All electronics and maintenance department em-
ployees employed by the Employer at its Fresno,
California, hospital; including all other employ-
ees, guards, and supervisors as defined by the
Act.
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FRESNO COMMUNITY HOSPIHAIL
(c) On May 7, 1979. the Union was certified to
bargain for the employees described in subparagraph
(b).
(d) As a result of the election in Case 32-RC-340.
since April 27, 1979, the following employees consti-
tute a unit appropriate for collective-bargaining pur-
poses within the meaning of Section 9(b) of the Act:
All engineering, electronics, and maintenance
department employees employed by the Em-
ployer at its Fresno, California, hospital: exclud-
ing all other employees, guards, and supervisors
as defined in the Act.
(e) At all times since April 27, 1979, the Union has
been, and is now, the exclusive bargaining represent-
ative of the employees in the combined unit described
in subparagraph (d), above, within the meaning of
Section 9(a) of the Act and, since May 7, 1979. has
been, and is now, the certified exclusive representa-
tive of the electronics and maintenance department
employees included within the overall unit.
B. The Request To Bargain and Respondent's Refusal
Commencing on or about May 10, 1979, and all
times thereafter, the Union has requested Respondent
to bargain collectively with its as the exclusive collec-
tive-bargaining representative of the appropriate unit
including the electronics and maintenance depart-
ment employees. Commencing on or about May 16,
1979, and continuing to all times thereafter to date.
Respondent has refused, and continues to refuse, to
recognize and bargain with the Union as the exclusive
representative for collective bargaining of those em-
ployees.
Accordingly, we find that Respondent has, since
May 16, 1979, and at all times thereafter, refused to
bargain collectively with the Union as the certified
exclusive representative of the group of electronics
and maintenance department employees, and, as a
result, has refused to bargain collectively with the
Union as the exclusive representative of the employ-
ees in the appropriate unit, and that by such refusal
Respondent has engaged 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 (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 Poulin Conmpany. Inc., 136 NLRB
785 (1962): Commerce Company d1/b/a Lamar Hotel,
140 NLRB 226, 229 (1962), enfd. 328 F.2d (5th Cir.
1964), cert. denied 379 U.S. 817; and Burnett Con-
struction Company 149 NLRB 1419, 1421 (1964),
enfd. 350 F.2d 57 (lOth Cir. 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CO)N(CUSIONS O() LAW
I. Fresno Community Hospital is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Stationary Engineers Local 39. International
Union of Operating Engineers, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the
Act.
3. At all times material herein the Union has been
the exclusive bargaining representative of a unit of
Respondent's engineers, and the employees therein
have been covered by a collective-bargaining agree-
ment between Respondent and the Union, effective
July 1, 1975-June 30, 1978.
4. On April 27, 1979, a majority of the electronics
and maintenance department employees employed at
Respondent's Fresno, California, hospital, by a se-
cret-ballot election, designated the Union as their ex-
clusive bargaining representative for purposes of col-
lective bargaining and thereby evinced a desire to
become, and became, a part of the above-described
engineering department unit, and on May 7, 1979, the
Union was certified to represent the electronics and
maintenance department employees.
5. As a result of the election in Case 32-RC-340,
since April 27, 1979, the following employees consti-
tute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the
Act:
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All engineering, electronics, and maintenance
department employees employed by the Em-
ployer at its Fresno, California, hospital; exclud-
ing all other employees, guards, and supervisors
as defined in the Act.
6. Since May 7, 1979, the above-named labor or-
ganization has been and now is the certified and ex-
clusive representative of all employees is the electron-
ics and maintenance departments and in the exclusive
representative of all employees in the combined unit
found appropriate in Case 32-RC-340 for the pur-
pose of collective bargaining within the meaning of
Section 9(a) of the Act.
7. By refusing on or about May 16, 1979, and at all
times thereafter, to bargain collectively with the
above-named labor organization as the exclusive bar-
gaining representative of its engineering, electronics,
and maintenance department employees, Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) of the Act.
8. 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 to them in
Section 7 of the Act and thereby has engaged in and
is engaging in unfair labor practices within the mean-
ing of Section 8(a)(1) of the Act.
9. 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 Respondent, Fresno
Community Hospital, Fresno, California, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, and other terms and conditions of
employment of its electronics and maintenance de-
partment employees with Stationary Engineers Local
39, International Union of Operating Engineers,
AFL-CIO, as the exclusive bargaining representative
of its employees in the following appropriate unit:
All engineering, electronics and maintenance de-
partment employees employed by the employer
at its Fresno, California, hospital; excluding all
other employees, guards, and supervisors as de-
fined in the Act.
(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 exclusive representative of all
employees in the aforesaid appropriate unit with re-
spect 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 hospital located at Fresno and R
Streets, Fresno, California, copies of the attached no-
tice marked "Appendix." 7 Copies of said notice, on
forms provided by the Regional Director for Region
32, after being duly signed by Respondent's repre-
sentative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are cus-
tomarily 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 32, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
MEMBER PENELI.O, dissenting:
For the reasons set forth in my dissenting opinion
in the underlying representation proceeding (241
NLRB No. 73), I would not find the petitioned-for
unit appropriate and would therefore deny the Gen-
eral Counsel's Motion for Summary Judgment.
7 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 Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board,"
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and other
terms and conditions of employment of our elec-
tronics and maintenance department employees
with Stationary Engineers Local 39, Interna-
tional Union of Operating Engineers, AFL-CIO,
as the exclusive representative of the employees
in the bargaining unit described below.
WE WILL 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 electronics and maintenance depart-
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FRESNO COMMUNITY HOSPITAL
ment employees in the bargaining unit described
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 bar-
gaining unit is:
All engineering, electronics, and maintenance
department employees employed by the Em-
ployer at its Fresno, California, hospital; ex-
cluding all other employees, guards, and su-
pervisors as defined in the Act.
FRESNO COMMUNITY HOSPIIAI.
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