Mount Sinai Hospital

National Labor Relations Board - Board Decisions

Feb 7, 2005

344 N.L.R.B. 14 (N.L.R.B. 2005)

344 NLRB No. 14
Mount Sinai Hospital and New York State Nurses
Association. Case 2–CA–36487–1
February 7, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
This is a refusal-to-bargain case in which the Respon-
dent is contesting the Union’s certification as bargaining
representative in the underlying representation proceed-
ing. Pursuant to a charge filed on August 30, 2004, the
General Counsel issued the complaint on October 22,
2004, alleging that the Respondent has violated Section
8(a)(5) and (1) of the Act by refusing the Union’s request
to bargain following the Union’s certification in Case 2–
RC–22844. (Official notice is taken of the “record” 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 denying in part the
allegations in the complaint, and asserting affirmative
defenses.1
On December 3, 2004, the General Counsel filed a
Motion for Summary Judgment and Memorandum in
Support. On December 7, 2004, the Board issued an
order transferring the proceeding to the Board and a No-
tice to Show Cause why the motion should not be
granted. The Respondent filed a response.
Ruling on Motion for Summary Judgment
The Respondent admits its refusal to bargain, but con-
tests the validity of the certification based on its conten-
tion, raised and rejected in the underlying representation
proceeding, that the case managers who constitute the
certified unit are managerial and supervisory employees,
and therefore the unit is inappropriate.
All representation issues raised by the Respondent
were or could have been litigated in the prior representa-
tion proceeding. The Respondent does not offer to ad-
duce at a hearing any newly discovered and previously
unavailable evidence, nor does it allege any special cir-
cumstances 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

1 The Respondent’s answer denies knowledge or information suffi-
cient to form a belief concerning the filing and service of the charge.
The answer, however, admits that the Respondent received copies of
the charge filed on August 30, 2004. In any event, copies of the charge
and the certificate of service are included in the documents supporting
the General Counsel’s motion, showing the dates as alleged, and the
Respondent does not refute the authenticity of these documents.
Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accord-
ingly, we grant the Motion for Summary Judgment.2
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, an acute health
care institution, with an office and place of business at 1
Gustave Levy Place, New York, New York, has been
engaged in the business of providing health care services
to the public. Annually, the Respondent, in conducting
its business operations described above, derives gross
revenues in excess of $250,000, and purchases and re-
ceives at its facility goods and services valued in excess
of $5000 directly from suppliers located outside the State
of New York.
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 that the Union is a labor organization
within the meaning of Section 2(5) of the Act.3
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the election held July 21, 2004, the Union
was certified on August 11, 2004, as the exclusive col-
lective-bargaining representative of the employees in the
following appropriate unit:
Included: All full-time and regular part-time case man-
agers employed by the Employer.
Excluded: All other employees and guards and super-
visors as defined in the Act.
The Union continues to be the exclusive representative un-
der Section 9(a) of the Act.

2 Neither Chairman Battista nor Member Liebman participated in the
underlying representation proceeding. However, they agree that the
Respondent has not raised any new matters or circumstances warrant-
ing a hearing in this proceeding, and that summary judgment is appro-
priate.
Member Schaumber dissented from the denial of the Respondent’s
request for review in the underlying representation case. He would
have granted review on the issue as to whether the case managers are
managerial employees. While he continues to be of the view that re-
view was warranted, he finds that the Respondent has not presented any
new matters that would warrant denial of the Motion for Summary
Judgment.
3 The Respondent’s answer denies sufficient knowledge or informa-
tion regarding the Union’s status as a labor organization. The Respon-
dent, however, did not challenge the Union’s labor organization status
in the representation proceeding. Accordingly, we find that the Re-
spondent’s answer does not raise any issue warranting a hearing with
respect to this allegation. See All American Services & Supplies, 340
NLRB No. 37 (2003).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
B. Refusal to Bargain
On about August 16, 2004, by letter, the Union re-
quested the Respondent to bargain, and, since August 25,
2004, the Respondent has refused to do so. We find that
this refusal constitutes an unlawful refusal to bargain in
violation of Section 8(a)(5) and (1) of the Act.
CONCLUSION OF LAW
By refusing since August 25, 2004, to bargain with the
Union as the exclusive collective-bargaining representa-
tive of employees in the appropriate unit, the Respondent
has engaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(5) and (1), and Sec-
tion 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, Mount Sinai Hospital, New York, New
York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with New York State Nurses
Association, 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:
Included: All full-time and regular part-time case man-
agers employed by the Employer.
Excluded: All other employees and guards and super-
visors as defined in the Act.
(b) Within 14 days after service by the Region, post at
its facility in New York, New York, copies of the at-
tached notice marked “Appendix.”4 Copies of the notice,
on forms provided by the Regional Director for Region 2
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 25, 2004.
(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.
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 violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT refuse to bargain with New York State
Nurses Association 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.

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.”
MOUNT SINAI HOSPITAL 3
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 fol-
lowing bargaining unit:
Included: All full-time and regular part-time case man-
agers employed by the Employer.
Excluded: All other employees and guards and super-
visors as defined in the Act.
MOUNT SINAI HOSPITAL