Melrose-Wakefield Hospital Assn., Inc.

National Labor Relations Board - Board Decisions

May 10, 1979

242 N.L.R.B. 117 (N.L.R.B. 1979)

MELROSE-WAKEFIELD HOSPITAL ASSOCIATION
Melrose-Wakefield Hospital Association, Inc. and
Massachusetts Hospital Workers, Local 880, Ser-
vice Employees International Union, AFL-CIO.
Case I-CA-15279
May 10, 1979
DECISION AND ORDER
BY MEMBERS PENELLO, MURPHY, AND TRUESDALE
Upon a charge, an amended charge, and a second
amended charge filed on November 30, December 19.
and December 27. 1978, respectively, by Massachu-
setts Hospital Workers, Local 880, Service Employees
International Union, AFL-CIO, herein called the
Union, and duly served on Melrose-Wakefield Hospi-
tal Association, Inc., herein called Respondent, the
General Counsel of the National Labor Relations
Board, by the Acting Regional Director for Region 1,
issued a complaint on January 4, 1979, against Re-
spondent, alleging that Respondent had engaged in
and was engaging 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 adminis-
trative 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 November 17,
1978, following a Board election in Case 1-RC-
15822, 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 November 29, 1978, 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. On January 14, 1979, Respondent filed its
answer to the complaint, admitting in part, and deny-
ing in part, the allegations in the complaint. Thus,
Respondent admitted, inter alia, that on November
29, 1978, the Union requested it to bargain collec-
tively and that it did refuse and continued to refuse to
bargain with the Union.
On February 15, 1979, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on March 2,
Official notice is taken of the record in the representation proceeding,
Case I-RC-15822, as the term "record" is defined in Secs. 102.68 and
1
0
2.69(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 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.
1979, the Board issued an order transferring the pro-
ceeding to the Board and a Notice To Show Cause
why the General Counsel's Motion for Summary
Judgment should not be granted. Respondent there-
after filed a response to the Notice To Show Cause.
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 response to the
Notice To Show Cause, Respondent admits the re-
quest and refusal to bargain but in substance attacks
the Union's certification on the basis of its election
objections in the underlying representation proceed-
ing. Counsel for General Counsel asserts that Re-
spondent's answer admits the factual allegations of
the complaint and contends that Respondent seeks to
relitigate the issues heretofore determined in the rep-
resentation case. We agree.
Our review of the record, including that of the un-
derlying representation proceeding, Case I-RC-
15822, reveals that an election was conducted on Sep-
tember 14, 1978, pursuant to a Decision and Direc-
tion of Election. The tally of ballots shows that of
approximately 208 eligible voters, 176 cast valid bal-
lots, of which 93 were for and 76 were against the
Union, and 7 ballots were challenged, an insufficient
number to affect the results. On September 21, 1978,
Respondent filed objections to the conduct of the
election. On November 17, 1978, after an investiga-
tion of the objections, the Regional Director issued a
Supplemental Decision in which he found no merit in
Respondent's objections and overruled them in their
entirety and certified the Union as the exclusive rep-
resentative of all the employees in the unit. On De-
cember 11, 1978, Respondent filed a request for re-
view of the Regional Director's Supplemental
Decision, and on January 4, 1979, the Union filed a
response thereto. On January 24, 1979, the Board is-
sued a denial of Respondent's request for review, as it
raised no substantial issues warranting review. It
thus appears that Respondent is attempting in this
proceeding to relitigate issues fully litigated and fi-
nally determined in the representation proceeding.
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
2 Member Penello concurred in denying review of the Regional Director's
Supplemental Decision, for the reasons set forth in Shopping Kart Food Mar-
ket, Inc.. 228 NLRB 1311 (1977); see his dissent in General Knit of California,
Inc., 239 NLRB 619 (1978).
242 NLRB No. 28
117
I)l( CISIONS OF NATIONAL LABOR RELATIONS BOARD
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.)
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 FA('I'
1. lIFE BUSINE!SS ()OF RSPONDINT
Melrose-Wakefield Hospital Association, Inc., is a
Massachusetts corporation and is engaged in the op-
eration of a nonprofit health care delivery facility in
Melrose, Massachusetts. In the course and conduct of
its business, Respondent annually causes goods and
materials with a value in excess of $50,000 to be pur-
chased and transported in interstate commerce from
and through the various States of the United States
other than the ommonwealth of Massachusetts.
Further, Respondent annually receives revenues in
excess of $1 million.
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.
11. TE LABOR OR(iANIZAIION INVOI.VAI)
Massachusetts Hospital Workers, Local 880, Ser-
vice Employees International Union, AFL CIO, is a
labor organization within the meaning of Section 2(5)
of the Act.
11l. Tlil UNFAIR I.ABOR PRA(iH(tES
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:
ISee Pittsburgh Plate (Gla (o. v N.L.RR.. 313 U.S. 146. 162 (1941);
Rules and Regulations of the Board. Secs. 102.67(f) and 102 69(c).
All licensed practical nurses, patient care techni-
cians, maternity technicians, operating and
emergency room technicians, EEG and EKG
technicians, laboratory technicians, phleboto-
mists, X-ray technicians, respiratory therapy
technicians and psychiatric counselors, but ex-
cluding all registered nurses, admitting officers,
service and maintenance unit employees, profes-
sional employees, business office clerical employ-
ees, confidential employees, guards and all su-
pervisors as defined in the Act.
2. The certification
On September 14, 1978, a majority of the employ-
ees of Respondent in said unit, in a secret-ballot elec-
tion conducted under the supervision of the Regional
Director for Region , 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 November 17, 1978, and the Union con-
tinues to be such exclusive representative within the
meaning of' Section 9(a) of the Act.
B. The Request To Bargain and Respondent's Refu.sal
Commencing on or about November 29, 1978, and
at all times thereafter, the Union has requested Re-
spondent to bargain collectively with it as the exclu-
sive collective-bargaining representative of all the em-
ployees in the above-described unit. Commencing on
or about November 29, 1978, 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.
Accordingly, we find that respondent has, since
November 29, 1978, and at all times thereafter, re-
fused to bargain collectively with the Union as the
exclusive representative of the employees in the ap-
propriate unit and that, by such refusal, Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) and (I) of
the Act.
IV. TFl EFFE(I' ()F ITIE UNFAIR ABOR PRA('TICES
UPON ('COMMER('E
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.
I 118
MELROSE-WAKEFIELD HO()SPITAL ASSOCIATION
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 Poultry Compan., Inc., 136 NLRB
785 (1962); Commerce Company d/b/a Lamar Hotel,
140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th
Cir. 1964), cert. denied 379 U.S. 817; 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:
Co)NCiLU!SIONS ()F LAW'
1. Melrose-Wakefield Hospital Association. Inc., is
an employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. Massachusetts Hospital Workers, Local 880,
Service Employees International Union, AFL-CIO,
is a labor organization within the meaning of Section
2(5) of the Act.
3. All licensed practical nurses, patient care techni-
cians, maternity technicians, operating and emer-
gency room technicians, EEG and EKG technicians,
laboratory technicians, phlebotomists, X-ray techni-
cians, respiratory therapy technicians, and psychiatric
counselors, but excluding all registered nurses, admit-
ting officers, service and maintenance unit employees.
professional employees, business office clerical em-
ployees, confidential employees, guards, and all su-
pervisors as defined in the Act, constitute a unit ap-
propriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. Since November 17, 1978, the above-named la-
bor 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 November 29, 1978,
and at all times thereafter, to bargain collectively
with the above-named labor organization as the ex-
clusive bargaining representative of all the employees
of Respondent in the appropriate unit, Respondent
has engaged in and is engaging in unfair labor prac-
tices 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 unfaiir 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.
ORI)ER
Pursuant to Section 10(c) of' the National Labor
Relations Act, as amended, the National abor Rela-
tions Board hereby orders that Respondent. Melrose-
Wakefield Hospital Association, Inc., Melrose, Mas-
sachusetts. its officers, agents. successors, and assigns,
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 Massachusetts Hospital
Workers, Local 880. Service Employees International
Union. AFL CIO. as the exclusive bargaining repre-
sentative of' its employees in the tfllowing appropri-
ate unit:
All licensed practical nurses, patient care techni-
cians, maternity technicians. operating and
emergency room technicians. EFIG and EKG
technicians, laboratory technicians. phleboto-
mists, X-ray technicians, respirators therapy
technicians and psychiatric counselors, but ex-
cluding all registered nurses, admitting officers,
service and maintenance unit employees, profes-
sional employees, business office clerical employ-
ees, confidential employees, guards and all su-
pervisors as defined 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 affirmnati e 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 its facility in Melrose. Massachusetts,
119
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
copies of the attached notice marked "Appendix."4
Copies of said notice, on forms provided by the Re-
gional Director for Region , 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 Respondent to insure that said
notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director for Region 1, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
4 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 Mas-
sachusetts Hospital Workers, Local 880, Service
Employees International Union, 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 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 agree-
ment. The bargaining unit is:
All licensed practical nurses, patient care tech-
nicians, maternity technicians, operating and
emergency room technicians, EEG and EKG
technicians, laboratory technicians, phleboto-
mists, X-ray technicians, respiratory therapy
technicians and psychiatric counselors, but ex-
cluding all registered nurses, admitting offi-
cers, service and maintenance unit employees,
professional employees, business office clerical
employees, confidential employees, guards and
all supervisors as defined in the Act.
MELROSE-WAKEFIELD HOSPITAL ASSOCI-
ATION, INC.
120