Kansas City College

National Labor Relations Board - Board Decisions

Aug 7, 1979

243 N.L.R.B. 1161 (N.L.R.B. 1979)

KANSAS CITY COLLEGE
Kansas City College of Osteopathic Medicine and In-
ternational Union of Operating Engineers Local 6-
6A-6B, AFL-CIO. Case 17-CA 8922
August 7, 1979
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND TRUESD)ALE
Upon a charge filed on April 19, 1979, by Interna-
tional Union of Operating Engineers Local 6-6A 6B,
AFL-CIO, herein called the Union, and duly served
on Kansas City College of Osteopathic Medicine.
herein called Respondent, the General Counsel of the
National Labor Relations Board. by the Regional Di-
rector for Region 17. issued a complaint on May 1.,
1979, against Respondent, alleging that Respondent
had engaged in and was engaging in unfair labor
practices affecting commerce within the meaning of
Section 8(a)(5) and (I) 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 proceeding.
With respect to the unfair labor practices, the com-
plaint alleges, in substance that on April 9, 1979, fol-
lowing a Board election in Case 17-RC-8691, the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate,' and that, commencing
on or about April 12, 1979, and at all times thereafter,
Respondent has refused, and continues to date to re-
fuse, to bargain collectively with the Union as the
exclusive bargaining representative, although the
Union has requested and is requesting it to do so. On
May 9, 1979, Respondent filed its answer to the com-
plaint admitting, in part, and denying, in part, the
allegations in the complaint.
On May 21, 1979, counsel for the General Counsel
filed a Motion for Summary Judgment directly with
the Board. Subsequently, on May 29, 1979, the Board
issued both an order transferring the proceeding to
the Board and a Notice To Show Cause why the Gen-
eral Counsel's Motion for Summary Judgment should
not be granted. Respondent thereafter filed a re-
sponse to the Notice To Show Cause.
I Official notice is taken of the record in the representation proceeding,
Case 17-RC 8691, 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 Electrosysrtem, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (4th Cir.
1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26
(5th Cir. 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va. 1967);
Follerr Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968) Sec.
9(d) of the NLRA, as amended.
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 the Motion for Summary Judgment
In its answer to the complaint and its opposition to
the Motion for Summary Judgment, Respondent ad-
mits that the Union has requested, and that it has
refused to bargain, but contends that the certification
of the Union is invalid because the unit certified is
inappropriate tor the purposes of collective bargain-
ing. The General Counsel argues that all material is-
sues have been considered previously and that there
are no litigable issues of fact requiring a hearing. We
find merit in the General Counsel's argument.
Our review of the record herein, including that in
the representation proceeding, Case 17 RC-8691, es-
tablishes that upon a petition duly filed under Section
9(c) of the Act, the Regional Director issued a Deci-
sion and Direction of Election wherein he found that
the petitioned-for unit of all full-time and regular
part-time shift engineers, engineer mechanics, and
wipers employed by Kansas City College of Osteo-
pathic Medicine, Kansas City, Missouri, excluding all
office clerical employees. professional employees. all
other employees, guards and supervisors as defined in
the Act, constitutes a separate appropriate unit or
the purposes of collective bargaining and directed
that an election by secret ballot be conducted among
the employees in that unit.
On March 9, 1979. Respondent filed a timely re-
quest for review of the Regional Director's Decision
and Direction of Election. By telegraphic order of
March 19, 1979, the Board denied Respondent's re-
quest for review, finding that it raised no substantial
issues warranting review. Thereafter, on March 30,
1979, an election by secret ballot was conducted
among the employees in the aforementioned unit, and
a majority of the votes cast were for the Union. Con-
sequently, on April 9, 1979, the Regional Director
issued a Certification of Representative. On Aprl 12.
1979, the Union requested, and Respondent denied it.
recognition.
It thus appears that Respondent's contentions con-
cerning the unit found to be appropriate by the Board
were considered in the underlying representation pro-
ceeding and cannot 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-
243 NLRB No. 169
1161
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gate issues which were or could have been litigated in
a prior representation proceeding.2
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.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDFN'I
Respondent is engaged in the operation of a non-
profit hospital at its facility located in Kansas City,
Missouri. In the course and conduct of its business
operations within the State of Missouri, Respondent
annually purchases goods and services valued in ex-
cess of $50,000 directly from sources located outside
the State of Missouri. It annually derives gross rev-
enues in excess of $250,000 in the course and conduct
of its health care operations.
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 INVOIVED
International Union of Operating Engineers Local
6-6A-6B, 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:
2
See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146. 162 (1941);
Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c).
All full-time and regular part-time shift engi-
neers, engineer mechanics, and wipers employed
by Kansas City College of Osteopathic Medi-
cine, Kansas City. Missouri, excluding all office
clerical employees, professional employees, all
other employees, guards, and supervisors as de-
fined in the Act.
2. The certification
On March 30, 1979, a majority of the employees of
Respondent in the above unit, in a secret-ballot elec-
tion conducted under the supervision of the Regional
Director for Region 17, 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 April 9, 1979, and the Union continues to
be such exclusive representative within the meaning
of Section 9(a) of the Act.
B. The Request To Bargain and Respondent'S Refi.sal
Commencing on or about April 2, 1979, and at all
times thereafter, the Union has requested Respondent
to bargain collectively with it as the exclusive collec-
tive-bargaining representative of all the employees in
the above-described unit. Commencing on or about
April 12. 1979. and continuing at all times thereafter
to date, Respondent has refused, and continues to re-
fuse, 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
April 12, 1979, 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 I.ABOR t>RA('TICIES
UPON COMMER('CE
The activities of Respondent, set forth in section
III, above, occurring in connection wiih its operations
described in section 1, 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-
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KANSAS CITY (OlI.GF 6E
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.
To insure that the employees in the appropriate
unit will be accorded the services of their selected
bargaining agent for the period provided by law, we
shall construe the initial period of certification as be-
ginning on the date Respondent commences to bar-
gain in good faith with the Union as the recognized
bargaining representative in the appropriate unit. See
Mar-Jac Poultry Company, Inc., 136 NLRB 785
(1962); Commerce Company d/bla Lamar Hotel, 140
NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir.
1964), cert. denied 379 U.S. 817 (1964); 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:
CONI.LUSIONS OF LAW
1. Kansas City College of Osteopathic Medicine is
an employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. International Union of Operating Engineers Lo-
cal 6-6A-6B, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. All full-time and regular part-time shift engi-
neers, engineer mechanics, and wipers employed by
Kansas City College of Osteopathic Medicine, Kan-
sas City, Missouri, excluding all office clerical em-
ployees, professional employees, all other employees,
guards and supervisors as defined in the Act, consti-
tute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the
Act.
4. Since April 9, 1979, the above-named labor or-
ganization has been and now is the certified and ex-
clusive 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 April 12, 1979, 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 IO(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondent. Kan-
sas City College of Osteopathic Medicine. Kansas
City, Missouri, its officers, agents, successors, and as-
signs, 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 International Union of
Operating Engineers Local 6-6A 6B, AFL CIO as
the exclusive bargaining representative of its employ-
ees in the following appropriate unit:
All full-time and regular part-time shift engi-
neers, engineer mechanics, and wipers employed
by Kansas City College of Osteopathic Medi-
cine, Kansas City. Missouri. excluding all office
clerical employees. professional employees, 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 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 2105 Independence Avenue, Kansas
City, Missouri, copies of the attached notice marked
"Appendix." 3 Copies of said notice, on forms pro-
vided by the Regional Director for Region 17. after
being duly signed by Respondent's representative.
shall be posted by Respondent immediately upon re-
ceipt thereof, and be maintained by it for 60 consecu-
I In the event that this Order s enforced h a Judgment of a United States
Court of Appeals. the Aords in the notice reading "Posted hb 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 RBoard
11 3
DECISIONS OF NAI10NAL LABOR RELATIONS BOARD
tive days thereafter, in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, de-
faced, or covered by any other material.
(c) Notify the Regional Director for Region 17, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
APPENDIX
NoTI('E To EMPOYEES
PosTrED BY ORDER OF IHE
NAIIONAI. LABOR REI.ATIONS BOARD
An Agency of the United States Government
WE WILL NOI refuse to bargain collectively
concerning rates of pay, wages, hours, and other
terms and conditions of employment with the In-
ternational Union of Operating Engineers Local
6-6A-6B, AFL-CIO, as the exclusive represent-
ative of the employees in the bargaining unit de-
scribed below.
WE WILI. 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.
Wl: wnl.L, 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 shift engi-
neers, engineer mechanics, and wipers em-
ployed by Kansas City College of' Osteopathic
Medicine, Kansas City, Missouri, excluding all
office clerical employees, professional employ-
ees, all other employees, guards, and supervi-
sors as defined in the Act.
KANSAS CITY COL.E(;ti ()F OSIEO()IAIIII(
MEI)I('INE
1164