Lake Charles Memorial Hospital

National Labor Relations Board - Board Decisions

Oct 11, 1977

232 N.L.R.B. 1039 (N.L.R.B. 1977)

LAKE CHARLES MEMORIAL HOSPITAL
Southwest Louisiana Hospital Association, d/b/a
Lake Charles Memorial Hospital and Office &
Professional Employees International Union, Local
87, AFL-CIO. Case 15-CA-6504
October 11, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
Upon a charge filed on June 16, 1977, by Office &
Professional Employees International Union, Local
87, AFL-CIO, herein called the Union, and duly
served on Southwest Louisiana Hospital Association,
d/b/a Lake Charles Memorial Hospital, herein
called Respondent, the General Counsel of the
National Labor Relations Board, by the Regional
Director for Region 15, issued a complaint and
notice of hearing on July 6, 1977, and an amended
complaint on July 11, 1977, against Respondent,
alleging that Respondent had engaged in and was
engaging in unfair labor practices affecting com-
merce 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, amendment to 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
complaint alleges in substance that on November 19,
1976, following a Board election in Case 15-RC-
5817, 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 January 13, 1977, and at all
times thereafter, Respondent has refused, and con-
tinues to date to refuse, to bargain collectively with
the Union as the exclusive bargaining representative,
although the Union has requested and is requesting it
to do so. Respondent filed its answer to the
complaint on July 13, 1977, and an amendment
thereto on July 20, 1977, admitting in part, and
denying in part, the allegations in the complaint.
On July 25, 1977, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment. Subsequently, on August 2, 1977, 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
l Official notice is taken of the record in the representation proceeding.
Case 15 RC 5817, 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 Elecirosystems, Inc., 166 NLRB 938 X 1967), enfd. 388 F.2d 683 (C.A. 4.
1968); Golden Age Beverage Co. 167 NL RB 151 (1967), enfd. 415 F.2d 26
(C.A, 5. 1969). Intertipe Co( v Penello. 269 F.Supp 573 (D.C.Va.. 1967);
Follettrr Corp., 164 NLRB 378 (1967), entfd 397 F 2d 91 ( .A. 7. 1968): Sec.
9(d) of the NL RA. as amended
232 NLRB No. 159
should not be granted. On August 5, 1977, Respon-
dent filed a response to the General Counsel's
motion. On August 11, 1977, Respondent filed a
response to Notice To Show Cause.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority 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
Initially, in its response to the Notice To Show
Cause, Respondent contends that it was denied due
process by the Board's action in issuing its order
transferring this proceeding to, and continuing it
before, the Board without giving prior consideration
to Respondent's response to the General Counsel's
motion. We find no merit in this contention, for the
proceedings were transferred to the Board to avoid
unnecessary delay and to effectuate the policies of
the Act, as provided for in the Board's Rules and
Regulations.2 Respondent was not precluded from
opposing the motion and, indeed, has done so by
incorporating its response to the General Counsel's
motion in its response to the Notice To Show Cause
which the Board issued for the purpose of soliciting
the positions of the parties. Respondent has thus
been afforded a proper forum in which to be heard
and, accordingly, we find no merit to this conten-
tion.3
In its answer to the complaint, response to the
General Counsel's motion, and response to the
Notice To Show Cause, Respondent basically attacks
the validity of the Union's majority status and
certification because of the issues raised by the
challenges to the determinative ballots cast in the
representation election and by Respondent's election
objections upon which Respondent asserts it is
entitled to a hearing. On the other hand, the General
Counsel argues that there are no litigable issues of
fact or law requiring a hearing. We agree with the
General Counsel.
Review of the record herein, including that in the
representation proceeding, Case 15-RC-5817, shows
that after a hearing, the Acting Regional Director
directed an election in a unit of all employees of the
Employer with certain specified categories of em-
ployees excluded from the unit. The Employer filed a
2 Sec. 102.50 of the Board's Rules and Regulations. Series 8. as amended
I Internarional Longshoremen's and Warehousemen's Union, bwal 13.
International Longshoremen's and Warehousemen's Union, and Loal 63.
International Ilngshoremen's and W'arehousemen's Union (( aliOrni (aurtage
Compan'. Inc.), 215 NLRB 541 (1974).
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
timely request for review of the Acting Regional
Director's Decision and Direction of Election which
the Board denied except as to the alleged supervisory
status of licensed practical nurses 2 and 3 serving as
charge nurses, and the unit placement of outpatient
service representatives and patient affairs clerks. The
Board permitted employees in these categories to
vote subject to challenge. The election, conducted on
February 26, 1976, resulted in a vote of 158 for, and
135 against, the Union, with 50 challenged ballots,
which were sufficient in number to affect the results
of the election. Respondent filed timely objections to
conduct affecting the results of the election. Respon-
dent's 10 objections alleged, in substance, that (1) the
unit determination by the Acting Regional Director
was inappropriate, (2) the Board failed to inform
certain employees of their eligibility to vote in the
election subject to challenge, (3) there was unlawful
coercion and solicitation by supervisors, (4) Petition-
er made unlawful representations, unlawful offers to
waiver initiation fees, and unlawful threats, and (5)
the employees were subjected to an atmosphere of
fear and violence. After investigation, the Regional
Director on May 6, 1976, issued his Report on
Objections and Challenged Ballots in which he
recommended that the objections be overruled in
their entirety; that the challenges to the ballots of 25
licensed practical nurses who serve as charge nurses
and 2 individuals be overruled, and the challenges to
the ballots of 5 outpatient service representatives, 6
patient affairs clerks, 9 nursing assistants, and 2 other
individuals be sustained.
Respondent filed timely exceptions to the Regional
Director's report and a supporting brief reiterating its
objections and specifically excepting to the recom-
mendations to sustain the challenges to the ballots of
the outpatient service representatives and the patient
affairs clerks and to overrule the challenges to the
ballots of the charge nurses. On November 8, 1976,
the Board issued a Decision on Review and Direc-
tion in which it substantially adopted the Regional
Director's findings and recommendations but, con-
trary to the recommendation of the Regional
Director, directed that the challenges to the ballots of
the outpatient service representatives and the patient
affairs clerks be overruled and that these challenged
ballots be opened and counted along with the ballots
of the 25 charge nurses and 2 other individuals, the
challenges to which were overruled in agreement
with the Regional Director's recommendations. The
Board further ordered that a revised tally of ballots
4 Georgetown Dress Corporation. 217 NL.RB 41 (1975); Raub Supply
Company, 215 NL.RB 830 (1974); Big Three Industries. Inc.. formerly Big
Three Industrial Gas & Equipment Co.. 214 NLRB 775 (1974).
5 See Pittsburgh Plate Glass C(o v. N.L.R.B.. 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Secs. 102.67(1) and 102.69(c).
issue and, thereafter, an appropriate certification
issue. On November 15, 1976, a revised tally of
ballots was issued showing a vote of 171 for, and 160
against, the Union. On November 19, 1976, the
Regional Director certified the Union.
Respondent contends, in its response to General
Counsel's motion and response to Notice To Show
Cause, that it is entitled to a hearing on issues which
were or could have been raised in the "instant
representation objection proceeding," as no hearing
was held on those issues in the underlying represen-
tation case. We find no merit in this contention.
Parties do not have an absolute right to a hearing on
objections to an election or challenged ballots and a
denial of a hearing thereon does not deprive
Respondent of due process, where, as here, they did
not raise material and substantial issues warranting a
hearing. 4 Moreover, it is well settled that in the
absence of newly discovered or previously unavail-
able evidence or special circumstances a respondent
in a proceeding alleging a violation of Section 8(a)(5)
is not entitled to relitigate issues which were or could
have been litigated in a prior representation proceed-
ing.5
All issues raised by Respondent in this proceeding
were or could have been litigated in the prior
representation proceeding, and Respondent does not
offer to adduce at a hearing any newly discovered or
previously unavailable evidence, nor does it allege
that any special circumstances exist herein which
would require the Board to reexamine the decision
made in the representation proceeding. We therefore
find that Respondent has not raised any issue which
is properly litigable in this unfair labor practice
proceeding.6 We shall, accordingly, 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 RESPONDENT
Respondent, a nonprofit Louisiana association,
operates a hospital in Lake Charles, Louisiana.
During the past 12 months, which is a representative
period, Respondent had gross revenues in excess of
$250,000 and received goods valued in excess of
$50,000 directly from points located outside the State
of Louisiana.
We find, on the basis of the foregoing, that
Respondent is, and has been at all times material
6 The complaint alleged, and Respondent admitted, that commencing on
or about January 3, 1977, the Union has requested and continues to request
certain information which is relevant for collective bargaining, and that
since January 13, 1977, Respondent refused, and continues to refuse, to
provide the information.
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LAKE CHARLES MEMORIAL HOSPITAL
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
Office & Professional Employees International
Union, Local 87, 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:
All employees of the Employer at its Lake
Charles, Louisiana facility; excluding all business
office clerical employees, temporary employees,
managerial employees, confidential secretaries,
professional employees, guards and supervisors as
defined in the Act.
2. The certification
On February 26, 1976, a majority of the employees
of Respondent in said unit, in a secret-ballot election
conducted under the supervision of the Regional
Director for Region 15, designated the Union as their
representative for the purpose of collective bargain-
ing with Respondent. The Union was certified as the
collective-bargaining representative of the employees
in said unit on November 19, 1976, 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
Refusal
Commencing on or about January 3, 1977, and at
all times thereafter, the Union has requested Respon-
dent to bargain collectively with it as the exclusive
collective-bargaining representative of all the em-
ployees in the above-described unit. 7 Commencing
on or about January 13, 1977, and continuing at 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 all employees in said unit, and to
provide the Union with the requested information.
7 The complaint alleges and the answer admits that the Union requested
and continues to request Respondent to provide the following information
which is relevant for bargaining purposes: employees' names, addresses, job
Accordingly, we find that Respondent has, since
January 13, 1977, 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, Respon-
dent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) and
(I) 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 opera-
tions described in section I, above, have a close,
intimate, and substantial relationship to trade,
traffic, and commerce among the several States and
tend to lead to labor disputes burdening and
obstructing commerce and the free flow of com-
merce.
V. THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the
meaning 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
appropriate unit, and, if an understanding is reached,
embody such understanding in a signed agreement.
We shall also order Respondent to provide the
Union with information which is relevant for
bargaining purposes.
In order 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 certifica-
tion as beginning on the date Respondent com-
mences to bargain 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/b/a
Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328
F.2d 600 (C.A. 5, 1964), cert. denied 379 U.S. 817
(1964); Burnett Construction Company, 149 NLRB
1419, 1421 (1964), enfd. 350 F.2d 57 (C.A. 10, 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
i. Southwest Louisiana Hospital Association,
d/b/a Lake Charles Memorial Hospital, is an
titles and classifications, date of hire, sex, race, and the dates. amounts. and
reasons for all employee salary increases for the past 2 years
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. Office & Professional Employees International
Union, Local 87, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. All employees of the Employer at its Lake
Charles, Louisiana, facility: excluding all business
office clerical employees, temporary employees,
managerial employees, confidential secretaries, pro-
fessional employees, guards and supervisors as
defined in the Act, constitute a unit appropriate for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. Since November 19, 1976, the above-named
labor organization has been and now is the certified
and exclusive representative of all employees in the
aforesaid appropriate unit for the purpose of collec-
tive bargaining within the meaning of Section 9(a) of
the Act.
5. By refusing on or about January 13, 1977, and
at all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive
bargaining representative of all the employees of
Respondent in the appropriate unit, Respondent has
engaged 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, Respon-
dent has interfered with, restrained, and coerced, and
is interfering with, restraining, and coercing, employ-
ees in the exercise of' the rights guaranteed them in
Section 7 of the Act, and thereby has engaged in and
is engaging in unfair labor practices within the
meaning of Section 8(a)( ) 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 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Southwest Louisiana Hospital Association, d/b/a
Lake Charles Memorial Hospital, Lake Charles,
Louisiana, 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
conditions of employment with Office & Professional
Employees International Union, Local 87, AFL-
CIO, as the exclusive bargaining representative of its
employees in the following appropriate unit:
All employees employed by the Employer at its
Lake Charles, Louisiana, facility; excluding all
business office clerical employees; temporary
employees, managerial employees, confidential
secretaries, professional employees, guards and
supervisors as defined in the Act.
(b) Refusing to provide the above-named labor
organization, upon request, information relevant to
and necessary for the purpose of collective bargain-
ing.
(c) 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 under-
standing is reached, embody such understanding in a
signed agreement and provide the above-named
labor organization, upon request, information rele-
vant to and necessary for the purpose of collective
bargaining.
(b) Post at its Lake Charles, Louisiana, facility
copies of the attached notice marked "Appendix." 8
Copies of said notice, on forms provided by the
Regional Director for Region 15, after being duly
signed by Respondent's representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
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,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 15, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
I 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 with Office
& Professional Employees International Union,
Local 87, AFL-CIO, as the exclusive representa-
1042
LAKE CHARLES MEMORIAL HOSPITAL
tive of the employees in the bargaining unit
described below.
WE WILL NOT refuse to provide the above-
named Union, upon request, information relevant
to and necessary for the purpose of collective
bargaining.
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 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 agree-
ment. The bargaining unit is:
All employees of the Employer at its Lake
Charles, Louisiana, facility; excluding all
business office clerical employees, tempo-
rary employees, managerial employees, con-
fidential secretaries, professional employees,
guards and supervisors as defined in the Act.
SOUTHWEST LOUISIANA
HOSPITAL ASSOCIATION,
D/B/A LAKE CHARLES
MEMORIAL HOSPITAl
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