Mercy Hospital of Buffalo

National Labor Relations Board - Board Decisions

Mar 19, 1981

255 N.L.R.B. 72 (N.L.R.B. 1981)

DEICISONS OF NATIONAL LABOR RELATIONS BOARD
Mercy Hospital of Buffalo and Buffalo & Western
New York Hospital and Nursing Home Council,
AFL-CIO. Case 3-CA-9974
March 19, 1981
DECISION AND ORDER
Upon a charge filed on September 2, 1980, by
Buffalo & Western New York Hospital and Nurs-
ing Home Council, AFL-CIO, herein called the
Union, and duly served on Mercy Hospital of Buf-
falo, herein called Respondent, the General Coun-
sel of the National Labor Relations Board, by the
Regional Director for Region 3, issued a complaint
on September 26, 1980, against Respondent, alleg-
ing that Respondent had engaged in and was en-
gaging 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 Rela-
tions Act, as amended. Copies of the charge and
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
complaint alleges in substance that on July 24,
1980, following a Board election in Case 3-RC-
7660, the Union was duly certified as the exclusive
collective-bargaining representative of Respond-
ent's employees in the unit found appropriate;' and
that, commencing on or about August 7, 1980, and
at all times thereafter, Respondent has refused, and
continues to date to refuse, to bargain collectively
with the Union as the exclusive bargaining repre-
sentative, although the Union has requested and is
requesting it to do so. On October 7, 1980, Re-
spondent filed its answer to the complaint admit-
ting in part, and denying in part, the allegations in
the complaint.
On November 14, 1980, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on November
21, 1980, 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 an opposition to the Motion for
Summary Judgment, and a motion for reconsider-
ation.
Upon the entire record in this proceeding, the
Board makes the following:
I Official notice is taken of the record in the representation proceed-
ing, Case 3-RC-7660, 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 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); Follett Corp., 164 NLRB 378 (1967). enfd. 397 F.2d 91
(7th Cir 1968); Sec. 9(d) of the NLRA, as amended.
Ruling on the Motion for Summary Judgment
In its answer to the complaint, Respondent
admits most of the operative factual allegations of
the complaint but denies that on December 27 and
28, 1979, a majority of the employees of Respond-
ent in an appropriate unit designated and selected
the Union as their representative; denies that at all
times since July 24, 1980, the Union has been and is
now the exclusive representative of its employees
in an appropriate unit for purposes of collective
bargaining; and denies that since on or about July
24, 1980, the Union has requested Respondent to
recognize it as the exclusive collective-bargaining
representative of Respondent's employees in an ap-
propriate unit. In its statement in opposition to the
Motion for Summary Judgment, Respondent incor-
porates the arguments it raised in the underlying
representation proceeding. Specifically, it asserts
that the Regional Director erred in sustaining the
challenge to the ballot of Sister Mary Blanche on
the basis that, as a member of the religious Order
which effectively controls the operation of Mercy
Hospital of Buffalo, Sister Mary Blanche is related
to Respondent and, therefore, owes her allegiance
and obedience to Respondent. Respondent also al-
leges that the Regional Director improperly relied
on the fact that Sister Mary Blanche had made
vows of poverty and obedience to the religious
Order that effectively controls Mercy Hospital of
Buffalo in concluding that she was, therefore, "re-
lated to the employer." The General Counsel con-
tends that Respondent is improperly seeking to reli-
tigate issues which were raised and decided in the
underlying representation case. We agree.
Review of the record herein, including the
record in Case 3-RC-7660, reveals that on Decem-
ber 27 and 28, 1979, an election was held in which
the tally was 33 votes for the Union and 32 votes
against the Union. There was one determinative
challenged ballot. On February , 1980, the Re-
gional Director issued a Report on Challenged
Ballot in which he recommended sustaining the
challenge to the ballot of Sister Mary Blanche.
This recommendation resulted in the Union's re-
ceiving a majority of the valid ballots cast in the
election.
Thereafter, Respondent filed exceptions to the
Regional Director's report. On July 24, 1980, the
Board adopted the Regional Director's findings
and recommendations and issued a Certification of
Representative in the unit described in the Stipula-
tion for Certification Upon Consent Election.2
2 See 250 NLRB 949 (1980). The Board also noted that, contrary to
Respondent's assertions, the Regional Director did not rely on Sister
Continued
255 NLRB No. 12
72
MERCY HOSPITAL OF BUFFALO
As noted in its statement in opposition to the
Motion for Summary Judgment and Motion for
Reconsideration, Respondent again asserts that the
Regional Director was in error in recommending
that the challenge to the ballot of Sister Mary
Blanche be sustained. It therefore appears that in
this proceeding Respondent is attempting to reliti-
gate issues fully litigated and finally determined in
the representation proceeding. It is well settled that
in the absence of newly discovered or previously
unavailable evidence or special circumstances a re-
spondent 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 proceeding.3
All issues raised by Respondent in this proceed-
ing were or could have been litigated in the prior
representation proceeding, and Respondent does
not offer to adduce at a hearing any newly discov-
ered 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 proceedings Accordingly, we grant the
Motion for Summary Judgment and deny Respond-
ent's Motion for Reconsideration. 5
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Mercy Hospital of Buffalo, a New York State
corporation with its principal place of business lo-
Mary Blanche's obedience, her vow of poverty, or the ultimate disposi-
tion of her salary in recommending her exclusion from the unit.
a See Pirttsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Secs. 102.67(0 and 102.69(c).
4 Member Zimmerman, who did not participate in the underlying rep-
resentation proceeding, concurs in the result. See Bravos Oldsmobile, Inc.,
254 NLRB No. 135 (1981).
' As noted, supra, Respondent denies that on December 27 and 28,
1979, a majority of the employees of Respondent in an appropriate unit
designated and selected the Union as their representative for purposes of
collective bargaining. To the extent that in this denial Respondent is
denying the fact of this event, the record includes the tally of ballots
signed by Respondent, and the Regional Director's Report on Challenged
Ballots served on Respondent, which lists the election dates as December
27 and 28, 1979. Respondent has not denied the authenticity and accura-
cy of these documents; accordingly, we find the relevant complaint alle-
gation to be established as true.
Respondent also denies the allegation that, since July 24, 1980, the
Union has requested it to bargain as the employees' exclusive bargaining
representative. The General Counsel has presented no evidence of such a
request but has presented a letter, dated August 7, 1980, from Respondent
to the Union which indicated that Respondent refused to bargain with
the Union because it deemed the Board's certification in error. On the
basis of this letter, we find that Respondent placed the Union on notice
that a request for bargaining by the Union would have been futile and
was therefore unnecessary. See, e.g., B. F. Goodrich Company, 250 NLRB
1139 (1980).
cated at 565 Abbott Road, Buffalo, New York, is
engaged in the business of providing in-patient and
out-patient health care and related services. During
the 12-month period preceding issuance of the
complaint it received gross revenues in excess of
$250,000 per year and received goods and materials
at its Buffalo facility, valued in excess of $5,000, di-
rectly from points located outside New York State.
We find, on the basis of the foregoing, that Re-
spondent 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 INVOLVED
Buffalo & Western New York Hospital and
Nursing Home Council, AFL-CIO, is a labor orga-
nization within the meaning of Section 2(5) of the
Act.
11I. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All full-time and regular part-time business
office clerical employees including cashiers,
file clerks, credit clerks, NCR operators, chief
insurance clerks, general insurance clerks, ad-
mission, clerks, and switchboard operators em-
ployed by the Employer at its 565 Abbott
Road, Buffalo, New York, facility, excluding
all licensed practical nurses and technical em-
ployees, service and maintenance employees,
registered nurses, professional employees, ac-
counts-payable clerks, casual employees,
guards and supervisors as defined in the Act.
2. The certification
On December 27 and 28, 1979, 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 3, designated the
Union as their representative for the purpose of
collective bargaining with Respondent.
The Union was certified as the collective-bar-
gaining representative of the employees in said unit
on July 24, 1980, and the Union continues to be
such exclusive representative within the meaning of
Section 9(a) of the Act.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Respondent's Refusal To Bargain
Commencing on or about August 7, 1980, and at
all times thereafter to date, Respondent has refused,
and continues to refuse, to recognize and bargain
with the Union as the exclusive representative of
the employees in the appropriate unit, and that, by
such refusal, Respondent has engaged in and is en-
gaging 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
II1, above, occurring in connection with its oper-
ations 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 ob-
structing 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.
In order to insure that the employees in the ap-
propriate unit will be accorded the services of their
selected bargaining agent for the period provided
by law, we shall construe the initial period of certi-
fication 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 (5th Cir. 1964), cert. denied 379 U.S. 817;
Burnett Construction 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:
CONCLUSIONS OF LAW
1. Mercy Hospital of Buffalo is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Buffalo & Western New York Hospital and
Nursing Home Council, AFL-CIO, is a labor orga-
nization within the meaning of Section 2(5) of the
Act.
3. All full-time and regular part-time business
office clerical employees including cashiers, file
clerks, credit clerks, NCR operators, chief insur-
ance clerks, general insurance clerks, admission
clerks, and switchboard operators employed by the
Employer at its 565 Abbott Road, Buffalo, New
York, facility, excluding all licensed practical
nurses and technical employees, service and main-
tenance employees, registered nurses, professional
employees, accounts-payable clerks, casual employ-
ees, 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 July 24, 1980, 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 August 7, 1980, 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 prac-
tices within the meaning of Section 8(a)(5) of the
Act.
6. By the aforesaid refusal to bargain, Respond-
ent has interfered with, restrained, and coerced,
and is interfering with, restraining, and coercing,
employees in the exercise of the rights guaranteed
them in Section 7 of the Act, and thereby has en-
gaged 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
meaning 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 Re-
lations Board hereby orders that the Respondent,
Mercy Hospital of Buffalo, Buffalo, New York, 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
conditions of employment with Buffalo & Western
New York Hospital and Nursing Home Council,
AFL-CIO, as the exclusive bargaining representa-
tive of its employees in the following appropriate
unit:
All full-time and regular part-time business
office clerical employees including cashiers,
74
MERCY HOSPITAL OF BUFFALO
file clerks, credit clerks, NCR operators, chief
insurance clerks, general insurance clerks, ad-
mission clerks, and switchboard operators em-
ployed by the Employer at its 565 Abbott
Road, Buffalo, New York, facility, excluding
all licensed practical nurses and technical em-
ployees, service and maintenance employees,
registered nurses, professional employees, ac-
counts-payable clerks, casual employees,
guards and supervisors as defined in the Act.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise 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 understanding is reached, embody such under-
standing in a signed agreement.
(b) Post at 565 Abbott Road, Buffalo, New
York, copies of the attached notice marked "Ap-
pendix." 6 Copies of said notice, on forms provided
by the Regional Director for Region 3, 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 Re-
spondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 3, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
"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 Pursu-
ant 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 Buffalo & Western New York Hospital
and Nursing Home Council, 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 employ-
ees 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 repre-
sentative of all employees in the bargaining
unit described below, with respect to rates of
pay, wages, hours, and other terms and condi-
tions 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 business
office clerical employees including cashiers,
file clerks, credit clerks, NCR operators,
chief insurance clerks, general insurance
clerks, admission clerks, and switchboard
operators employed at our 565 Abbott
Road, Buffalo, New York, facility, exclud-
ing all licensed practical nurses and techni-
cal employees, service and maintenance em-
ployees, registered nurses, professional em-
ployees, accounts-payable clerks, casual em-
ployees, guards and supervisors as defined in
the Act.
MERCY HOSPITAL OF BUFFALO
75
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