Memorial Hospital

National Labor Relations Board - Board Decisions

Feb 8, 1978

234 N.L.R.B. 787 (N.L.R.B. 1978)

The Memorial Hospital and Service Employees Inter-
national Union, AFL-CIO. Case 5-CA-8725
February 8, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
Upon a charge filed on June 29, 1977, and an
amended charge filed on July 13, 1977, by Service
Employees International Union, AFL-CIO, herein
called the Union, and duly served on The Memorial
Hospital, herein called the Respondent, the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 5, issued a com-
plaint on July 29, 1977, 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 (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
proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on April 8, 1977,
following a Board election in Case 5-RC-9889, the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate; I and that, commenc-
ing on or about June 22, 1977, and at all times
thereafter, Respondent has refused, and continues 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 August 8, 1977, Respondent filed its answer to
the complaint admitting in part, and denying in part,
the allegations in the complaint.
On November 14, 1977, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on November 21,
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 Sum-
mary Judgment should not be granted. Respondent
thereafter filed a response to Notice To Show Cause,
a motion for reconsideration, and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
I Official notice is taken of the record in the representation proceeding,
Case 5-RC-9889, as the term "record" is defined in Secs. 102.68 and
102.69(g) of the Board's Rules and Regulations, Serines 8, as amended. See
LTV Electroystsems, Inc., 166 NLRB 938 (1967). enfd. 388 F.2d 683 (C.A. 4,
1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26
234 NLRB No. 123
MEMORIAL HOSPITAL
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
In its answer to the complaint and response to the
Notice To Show Cause, Respondent attacks the
validity of the Union's certification because of the
alleged erroneous resolution of its objections in Case
5-RC-9889 and because of newly discovered evi-
dence which allegedly constitutes special circum-
stances warranting relitigation of the representation
case issues.
Review of the record reflects that two elections
were conducted simultaneously at Respondent's fa-
cility on February 17, 1977, pursuant to a Decision
and Direction of Election issued by the Acting
Regional Director for Region 5. The election in Case
5-RC-9889 involved a unit of licensed practical
nurses and technical employees; the other election
(Case 5-RC-9888) involved a unit of registered
nurses and professionals. The tally of ballots in the
technical unit showed that of approximately 232
eligible voters 118 cast valid votes for, and 98 cast
valid ballots against, the Union, and there were 14
challenged ballots, an insufficient number to affect
the results of the election. In the professional unit,
the tally showed that of approximately 156 eligible
voters, 48 cast valid ballots for, and 98 cast valid
ballots against, the Union. Respondent filed timely
objections to conduct affecting the results of the
election in Case 5-RC-9889 alleging in substance
that the Board agents created an atmosphere of
confusion which cast doubt upon the accuracy of the
election.2 After investigation, the Regional Director
issued a Supplemental Decision and Certification of
Representative in which he found that Respondent's
objections did not raise substantial or material issues
with respect to conduct of the election. Accordingly,
he recommended that the objections be overruled in
their entirety and the Union be certified.
Thereafter, Respondent timely filed a request for
review with the Board. The Board denied the request
by telegram on June 1, 1977, because it raised no
substantial issues warranting review.
It is well settled that in the absence of newly
discovered or previously unavailable evidence or
special circumstances a respondent in a proceeding
alleging a violation of Section 8(a)(5) is not entitled
(C.A. 5, 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va.. 1967);
Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec.
9(d) of the NLRA, as amended.
2 No objections were filed in Case 5-RC-9888. A Certification of Results
of Election issued on March 3, 1977.
787
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to relitigate issues which were or could have been
litigated in a prior representation proceeding.3
In its response to the Notice To Show Cause,
Respondent contends that it is not obligated to
bargain with the Union because the certification is
invalid. Specifically, Respondent alleges that there
are substantial and material issues which have never
been resolved and that certain of the Regional
Director's factual findings were based on ex parte
statements from witnesses whom Respondent was
unable to cross-examine. In short, Respondent is
again arguing that the Regional Director improperly
overruled its objections to the conduct of the
election, and that the Board improperly denied its
request for review.
Respondent, however, does not assert that it was in
any way foreclosed from presenting evidence in
support of its objections during the administrative
investigation. Moreover, it has not presented any
evidence not previously considered which would
serve as a basis to overturn the Regional Director's
and Board's disposition of the objections. 4
We therefore find that Respondent has not raised
any issue which properly is litigable in this unfair
labor practice proceeding. We shall, accordingly,
grant the General Counsel's Motion for Summary
Judgment and deny Respondent's motion for recon-
sideration.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent, a Virginia corporation with its princi-
pal place of business in Danville, Virginia, operates a
hospital in the State of Virginia where it is engaged in
providing health care facilities. During the preceding
12 months, a representative period, Respondent had
gross revenues in excess of $250,000. During the
same period, Respondent purchased and received, in
interstate commerce, goods and supplies valued in
excess of $50,000 from points located outside the
State of Virginia.
We find, on the basis of the foregoing, that
Respondent 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.
3 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).
4 Although Respondent claims that the affidavits attached to its brief
contain newly discovered evidence, in reality there is virtually nothing of
II1. THE LABOR ORGANIZATION INVOLVED
Service Employees International Union, 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
i. The unit
The following employees of the Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All regular part-time and all full-time technical
employees, including licensed practical nurses,
LPN in-service instructor, LPN physical thera-
pist, medical laboratory technicians, staff radio-
logic technologists, special procedure technolo-
gist, nuclear medicine technician, certified techni-
cian (respiratory), staff technician (respiratory),
technician trainee (respiratory), EEG technician,
bio-medical electronic technician, therapy tech-
nologist, X-ray service engineer, education coor-
dinator, and pulmonary function technician em-
ployed by the Employer at its Danville, Virginia
location, but excluding operating room techni-
cians, certified laboratory assistants, autopsy
technician, part-time laboratory employees, out-
patient technicians, registered nurses, professional
employees, office clerical employees, service and
maintenance employees, guards and supervisors
as defined in the Act.
2. The certification
On February 17, 1977, 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 5, designated the Union as their
representative for the purpose of collective bargain-
ing with the Respondent. The Union was certified as
the collective-bargaining representative of the em-
ployees in said unit on April 8, 1977, 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 June 14, 1977, and at all
times thereafter, the Union has requested the Re-
significance which was not before the Regional Director when he made his
findings. Moreover, Respondent has given no reason why the alleged
evidence was not discovered earlier, as it came from the Employer's own
observers.
788
MEMORIAL HOSPITAL
spondent to bargain collectively with it as the
exclusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about June 22, 1977, and continuing
at all times thereafter to date, the Respondent has
refused, and continues to refuse, to recognize and
bargain with the Union as the exclusive representa-
tive for collective bargaining of all employees in said
unit.
Accordingly, we find that the Respondent has,
since June 22, 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, traf-
fic, and commerce 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
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.
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 ap-
propriate 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. The Memorial Hospital is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Service Employees International Union, AFL-
CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. All regular part-time and all full-time technical
employees, including licensed practical nurses, LPN
in-service instructor, LPN physical therapist, medical
laboratory technicians, staff radiologic technologists,
special procedure technologist, nuclear medicine
technician, certified technician (respiratory), staff
technician (respiratory), technician trainee (respira-
tory), EEG technician, bio-medical electronic techni-
cian, therapy technologist, X-ray service engineer,
education coordinator, and pulmonary function
technician employed by the Employer at its Danville,
Virginia location, but excluding operating room
technicians, certified laboratory assistants, autopsy
technician, part-time laboratory employees, out-pa-
tient technicians, registered nurses, professional em-
ployees, office clerical employees, service and main-
tenance employees, guards and supervisors as de-
fined 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 April 8, 1977, 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 June 22, 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 to 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)(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 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
789
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Memorial Hospital, Danville, Virginia, its offi-
cers, 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
conditions of employment with Service Employees
International Union, AFL-CIO, as the exclusive
bargaining representative of its employees in the
above-described appropriate unit.
(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 under-
standing is reached, embody such understanding in a
signed agreement.
(b) Post at its Danville, Virginia, facility copies of
the attached notice marked "Appendix." 5 Copies of
said notice, on forms provided by the Regional
Director for Region 5, 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 thereaf-
ter, in conspicuous places, including all places where
notices to employees are customarily posted. Reason-
able 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 5, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
5 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 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
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 regular part-time and all full-time techni-
cal employees, including licensed practical
nurses, LPN in-service instructor, LPN
physical therapist, medical laboratory tech-
nicians, staff radiologic technologists, special
procedure technologist, nuclear medicine
technician, certified technician (respiratory),
staff technician (respiratory), technician
trainee (respiratory), EEG technician, bio-
medical electronic technician, therapy tech-
nologist, X-ray service engineer, education
coordinator, and pulmonary function techni-
cian employed by the Employer at its Dan-
ville, Virginia location, but excluding operat-
ing room technicians, certified laboratory
assistants, autopsy technician, part-time lab-
oratory employees, out-patient technicians,
registered nurses, professional employees,
office clerical employees, service and main-
tenance employees, guards and supervisors
as defined in the Act.
THE MEMORIAL
HOSPITAL
790