Kentucky River Medical Center

National Labor Relations Board - Board Decisions

Jan 31, 2001

333 N.L.R.B. 29 (N.L.R.B. 2001)

333 NLRB No. 29
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Jackson Hospital Corporation d/b/a Kentucky River
Medical Center and United Steelworkers of
America, AFL–CIO–CLC. Case 9–CA–37909
January 31, 2001
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS LIEBMAN
AND HURTGEN
Pursuant to a charge filed on September 7, 2000, the
General Counsel of the National Labor Relations Board
issued a complaint on November 16, 2000, 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 following the Union’s certification in
Case 9–RD–1904. (Official notice is taken of the “re-
cord” in the representation 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 deny-
ing in part the allegations in the complaint.
On December 11, 2000, the General Counsel filed a
Motion for Summary Judgment. On December 13, 2000,
the Board issued an order transferring the proceeding to
the Board and a Notice to Show Cause why the motion
should not be granted. The Respondent filed a response
which stated that the Respondent seeks to test the certifi-
cation issued by the Board in Case 9–RD–1904.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Summary Judgment
In its answer the Respondent admits its refusal to bar-
gain, but attacks the validity of the certification on the
basis of its objections to the election in the representation
proceeding.1

1 In its answer to the complaint, the Respondent states as an affirma-
tive defense that the issuance of the complaint on November 16, 2000
“constituted an abuse of administrative/prosecutorial discretion, in light
of the pendency of proceedings in connection with Case 9–CB–
10304.” In Case 9–CB–10304 the Respondent alleged that the Union
bargained in bad faith by conditioning bargaining over economic issues
on the resolution of non-economic issues. This same allegation previ-
ously was raised by the Respondent in charges filed against the Union
in Case 9–CB–10242. Case 9–CB–10242 was dismissed by the Re-
gional Director on May 22, 2000, and the General Counsel denied the
Respondent’s appeal of that dismissal on July 19, 2000. On August 29,
2000, the Regional Director dismissed the bad-faith bargaining allega-
tions of Case 9–CB–10304, and the General Counsel denied the Re-
spondent’s appeal of that dismissal on December 20, 2000. The dis-
missal of the allegations in Case 9–CB–10304 was consistent with the
findings made by the General Counsel in dismissing the Respondent’s
charge in Case 9–CB–10242 and by the Board in overruling the Re-
spondent’s objections. Accordingly, we find that the Respondent’s
affirmative defense raises no issues warranting a hearing.
All representation issues raised by the Respondent
were or could have been litigated in the prior representa-
tion proceeding.2 The Respondent does not offer to ad-
duce at a hearing any newly discovered and previously
unavailable evidence, nor does it allege any special
circumstances that would require the Board to reexamine
the decision made in the representation proceeding. We
therefore find that the Respondent has not raised any
representation issue that is properly litigable in this un-
fair labor practice proceeding. See Pittsburgh Plate
Glass Co. v. NLRB, 313 U.S. 146, 162 (1941).3 Accord-
ingly, we grant the Motion for Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a corporation,
has been engaged in the operation of an acute care hospi-
tal at Jackson, Kentucky. During the 12-month period
preceding issuance of the complaint, the Respondent, in
conducting its business operations described above, re-
ceived gross revenues in excess of $250,000 and pur-
chased and received at its Jackson, Kentucky facility
goods valued at more than $50,000 directly from points
outside the Commonwealth of Kentucky. We find that
the Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act and is a health care facility within the meaning of
Section 2(14) of the Act. We also find 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 December 10, 1999, the
Union was certified on August 2, 2000, as the exclusive
collective-bargaining representative of the employees in
the following appropriate unit:
All full-time and regular part-time registered nurses,
the team leader, and the continuing education coordina-
tor; nonprofessional employees, including the medical
records employees, admission employees and purchas-
ing employees; and technical employees, including cer-
tified respiratory therapy technicians, x-ray technicians,
licensed practical nurses, the DRG coordinator, medi-

2 The Respondent’s answer denies that the certified unit is appropri-
ate. The Respondent, however, stipulated to the appropriateness of the
unit in the underlying representation case. Further, any question re-
garding the appropriateness of the unit could and should have been
raised in the representation proceeding. Playhouse Square Foundation,
291 NLRB 995 fn. 1 (1988). Accordingly, we find that the Respon-
dent’s denial of this allegation does not raise any issue warranting a
hearing in this proceeding.
3 Member Hurtgen did not participate in the underlying representa-
tion proceeding. He finds, however, that the Respondent has not raised
any new matters that are properly lit igable in this unfair labor practice
case.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2
cal lab technicians and the physical therapy assistant
employed by Respondent at its 540 Jetts Drive, Jack-
son, Kentucky facility, but excluding the registered res-
piratory therapists, medical technologists, utilization
review nurses, business office clerical employees, con-
fidential employees and all other professional employ-
ees, guards and supervisors as defined in the Act.
The Union continues to be the exclusive representative
under Section 9(a) of the Act.
B. Refusal to Bargain
Since about August 31, 2000, the Union has requested
the Respondent to bargain and, since about August 31,
2000, the Respondent has refused. We find that this re-
fusal constitutes an unlawful refusal to bargain in viola-
tion of Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
By refusing on and after August 31, 2000, 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 affect-
ing 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 Section
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 understanding
in a signed agreement.
To ensure that the employees are accorded the services
of their selected bargaining agent for the period provided
by the law, we shall construe the initial period of the cer-
tification as beginning the date the Respondent 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, Jackson Hospital Corporation d/b/a Ken-
tucky River Medical Center, Jackson, Kentucky, its offi-
cers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with United Steelworkers of
America, AFL–CIO–CLC, as the exclusive bargaining
representative of the employees in the bargaining unit.
(b) In any like or related manner interfering with, re-
straining, 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 exclusive
representative of the employees in the following appro-
priate unit on terms and conditions of employment, and if
an understanding is reached, embody the understanding
in a signed agreement:

All full-time and regular part-time registered nurses,
the team leader, and the continuing education coordina-
tor; nonprofessional employees, including the medical
records employees, admission employees and purchas-
ing employees; and technical employees, including cer-
tified respiratory therapy technicians, x-ray technicians,
licensed practical nurses, the DRG coordinator, medi-
cal lab technicians and the physical therapy assistant
employed by Respondent at its 540 Jetts Drive, Jack-
son, Kentucky facility, but excluding the registered res-
piratory therapists, medical technologists, utilization
review nurses, business office clerical employees, con-
fidential employees and all other professional employ-
ees, guards and supervisors as defined in the Act.

(b) Within 14 days after service by the Region, post at
its facility in Jackson, Kentucky, copies of the attached
notice marked “Appendix.”4 Copies of the notice, on
forms provided by the Regional Director for Region 9
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, 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 facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since August 31, 2000.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
Dated, Washington, D.C. January 31, 2001

John C. Truesdale, Chairman

Wilma B. Liebman, Member

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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”

JACKSON HOSPITAL CORP. D/B/A KENTUCKY RIVER MEDICAL CENTER 3

Peter J. Hurtgen, Member

(SEAL) NATIONAL LABOR RELATIONS BOARD
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 vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.
WE WILL NOT refuse to bargain with United Steel-
workers of America, AFL–CIO–CLC 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 bar-
gaining unit:
All full-time and regular part-time registered nurses,
the team leader, and the continuing education coordina-
tor; nonprofessional employees, including the medical
records employees, admission employees and purchas-
ing employees; and technical employees, including cer-
tified respiratory therapy technicians, x-ray technicians,
licensed practical nurses, the DRG coordinator, medi-
cal lab technicians and the physical therapy assistant
employed by us at our 540 Jetts Drive, Jackson, Ken-
tucky facility, but excluding the registered respiratory
therapis ts, medical technologists, utilization review
nurses, business office clerical employees, confidential
employees and all other professional employees, guards
and supervisors as defined in the Act.
JACKSON HOSPITAL CORPORATION D/B/A KENTUCKY
RIVER MEDICAL CENTER