National Medical Enterprises, Inc.

National Labor Relations Board - Board Decisions

Oct 20, 1971

193 N.L.R.B. 833 (N.L.R.B. 1971)

DOCTORS' HOSPITAL OF MODESTO
Doctors ' Hospital of Modesto, Inc., a wholly owned
subsidiary of National Medical Enterprises, Inc.
and California Nurses' Association , affiliated with
American Nurses' Association . Case 20-CA-6335.
October 20, 1971
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
On May 5, 1971, Trial Examiner George Christen-
sen issued his Decision in the above-entitled proceed-
ing, finding that Respondent had engaged in certain
unfair labor practices and recommending that it cease
and desist therefrom and take certain affirmative
action, as set forth in the attached Trial Examiner's
Decision. Respondent filed timely exceptions, and a
brief in support thereof, to the Trial Examiner's
Decision. General Counsel filed a brief and limited
cross-exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, cross-exceptions
and the briefs, and the entire record in the case, and
hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders that
Respondent, Doctors' Hospital of Modesto, Inc., a
wholly owned subsidiary of National Medical Enter-
prises, Inc., Modesto, California, its officers, agents,
successors, and assigns, shall take the action set forth
in the Trial Examiner's recommended Order, as
modified herein:
Substitute the attached notice for the Trial Examin-
er's notice.
I The cross-exceptions filed by the General Counsel correctly state, and
we find, that as admitted by Respondent in its answer Respondent at all
times material to this proceeding has been engaged in operating a
proprietary hospital in Modesto, California, and that during the year
1969-70 in the course of its business operations it had received gross
revenues in excess of $250,000
APPENDIX
833
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL, upon request, meet and bargain collec-
tively with California Nurses' Association, affiliated
with American Nurses' Association, as the exclusive
representative of our employees in the bargaining unit
described below with respect to rates of pay, wages,
hours, and working conditions and, if an understand-
ing is reached, embody such understanding in a
signed agreement. Said bargaining unit is:
All registered nurses employed at our Modesto,
California, facility excluding all other employees,
the director of nurses, day supervisor, p.m.
supervisor, night supervisor, central supply super-
visor, operating room supervisor, the obstetrics
unit supervisor, the recovery room head nurse, the
intensive care/cardiac care unit head nurse, floor
head nurses, guards and other supervisors as
defined in the Act.
DOCTORS' HOSPITAL OF
MODESTO, INC., A
WHOLLY OWNED
SUBSIDIARY OF NATIONAL
MEDICAL ENTERPRISES,
INC.
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced , or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office , 13050 Federal Building, Box 36047, 450
Golden Gate Avenue , San Francisco , California
94102, Telephone 415556-3197.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GEORGE CHRISTENSEN, Trial Examiner: On January 12,
1971, the Examiner held a hearing at Stockton, California,
to try issues raised by a complaint issued on October 29,
193 NLRB No. 123
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1970 (based upon a charge filed on September 15, 1970),
alleging that since September 8, 1970, the Hospital' has
been violating Section 8(a)(5) and (1) of the National Labor
Relations Act, as amended (hereafter the Act) by refusing
to bargain in good faith with the CNA2 despite the latter's
prior certification as the exclusive collective-bargaining
representative of an appropriate unit of its employees (the
Hospital's professional nursing staff).
The Hospital admits that CNA was so certified and that
it refused to bargain with CNA at its request subsequent to
that certification, but denies that the unit is appropriate
because of certain inclusions therein, denies that an
uncoerced majority of the employees within the unit
designated CNA as their exclusive representative, denies
that it was in bad faith in refusing to bargain with CNA at
its request, asserts that the certification was improper,
unwarranted, and illegal because of certain alleged errors in
the procedural handling, decisional language, and substan-
tive disposition of the representation case which resulted in
the certification, and requests that the complaint be
dismissed, the certification set aside, and a new election in
an appropriate unit be directed.
The parties appeared by counsel and were afforded full
opportunity to introduce evidence, to examine and cross-
examine witnesses , to argue, and to file briefs. Briefs have
been received from the General Counsel (GC hereafter)
and the Hospital.
Based upon his review of the entire record,3 observation
of the witnesses, perusal of the briefs, and research, the
Examiner enters the following:
FINDINGS OF FACT
1. JURISDICTION AND LABOR ORGANIZATION
The commerce facts and the qualification of the Hospital
as an employer engaged in commerce and CNA as a labor
organization within the meaning of Section 2(2), (5), (6),
and (7) of the Act are conceded by the parties and the
Examiner so finds and concludes.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Sequence of Events
On May 8, 1968, CNA filed a petition (Case
20-RC-8148) with the Region 20 of the National Labor
Relations Board (hereafter the Region and the Board)
seeking certification as the exclusive collective-bargaining
representative of a unit consisting of all the registered
nurses (hereafter the RNs) employed by the Hospital at
Modesto, California, and excluding all other employees.
A hearing was conducted on the petition by a Hearing
Officer (hereafter HO) designated by the Regional Director
(hereafter RD) of the Region on May 24, 1968. At that
Hereafter called the Hospital
2 Hereafter called CNA
3 The following corrections are ordered ' (1) Transcript p 5 I 13-strike
"not", (2) Transcript, p 22, Il 12-24-substitute the following.
"Gentlemen , it is my understanding of the law that where a complaint case
involves a Section 8(a)(5) allegation , as here , based upon a prior
certification , the Board determinations of the representation issues, such as
unit exclusion , whether there was a majority and whether there was a
hearing it developed that the Hospital employed approxi-
mately 40 full-time RNs, 32 regularly scheduled part-time
RNs, and 8 RNs on a sporadic or emergency basis, plus
approximately 85 full and part-time licensed vocational
nurses (LVNs hereafter), 90 full- and part-time nurses aids
and 50 orderlies and other service and maintenance
employees.
The Hospital contended that all the RNs either
supervised other RNs or LVNs, nurses aids and others, or
both, and therefore were supervisors within the meaning of
the Act (and thereby barred from utilizing its Section 9
procedures).
On June 28, 1968, the RD issued a decision finding that a
unit of all RNs employed by the Hospital constituted an
appropriate professional unit for purposes of collective
bargaining, excluding all other employees, RNs classified
as director of nurses, day, PM and night supervisor, central
supply supervisor, guards and other supervisors. The
Hospital sought Board review of this Decision.
On April 14, 1969, the Board issued a Decision (175
NLRB 354) upholding the RD's decision with regard to the
appropriateness of the unit, but excluded two more
classifications of RNs from the unit-floor head nurse and
operating room supervisor. The Board stated it was unable
to determine from the record if the RNs in the classifica-
tions of obstetrics supervisor, obstetrics charge nurse, and
recovery room head nurse were supervisors or not, and
therefore directed the RNs in these classifications be
permitted to vote under challenge and their eligibility
determined in proceedings subsequent to the election. The
Board overruled the Hospital's contentions that RNs
classified as in service training supervisor and head nurse,
intensive care/cardiac care unit (hereafter IC/CCU) be
excluded from the unit.
Following the Board's April 14, 1969, decision, the
Region sent election notices for posting on the Hospital's
bulletin board. That notice stated that all RNs employed by
the Hospital during the payroll period ending April 14,
1969, were to vote in an election scheduled for May 12,
1969, further specifying that the following categories of
employees were not so eligible: all other employees,
director of nurses, day supervisor, PM supervisor, night
supervisor, central supply supervisor, floor head nurses,
operating room supervisor, guards and other supervisors as
defined in the Act.
The Hospital prepared and posted next to the above
notice on its bulletin board a document purporting to list
the names of the RNs eligible to vote in the election, and
listed the names of 38 RNs. It excluded from the list the
names of the RNs in the classifications the Board had
directed be permitted to vote subject to challenge
(obstetrics supervisor, obstetrics charge nurse, and recovery
room head nurse), plus other RN classifications (all the
RNs in the obstetrics wing or floor, all the charge nurses in
question concerning representation present , as made by the Board in the
RC case, are conclusive upon the Trial Examiner in the Section 8(a)(5)
proceeding, unless there is material evidence newly discovered or
unavailable at the time of the representation proceeding or special
circumstances . I do not think the thrust of the motion encompass either of
the exceptions just stated , so the Trial Examiner feels bound by the Board's
earlier rulings on the exclusions and inclusions . The motion is therefore
denied "
DOCTORS' HOSPITAL OF MODESTO 835
the other four wings, all nurses who acted as relief for any
of the classifications the Hospital believed to be supervi-
sors), and most of the regular part- time nurses.
CNA distributed to the RNs employed by the Hospital
prior to the election the Hospital' s list of 38 names, a
second list of 25 names, with a cover letter setting out the
language of the notice published by the Board and placed
on the Hospital's bulletin board, noting its disagreement
with the Hospital's listing as incomplete and urging not
only the 25 RNs named in its supplemental list but all other
RNs not within the excluded classifications set out in the
Board's notice to vote and let the propriety of their vote be
determined thereafter in further proceedings if challenged.
Prior to the election, the Hospital conducted a series of
meetings with the RNs. In the course of those meetings, the
Hospital informed the RNs of its position concerning what
classifications it believed were ineligible to participate in
the election because they were supervisors - specifically
including within that category the RNs classified as charge
nurse staffing the four wings. The hospital informed those
RNs that they were supervisors, that they were ineligible to
vote in the election, that they owed a duty of loyalty to the
Hospital, and ordered them to refrain from engaging in any
union activities. A similar message was conveyed to all
other RN classifications the Hospital deemed should fall
within its concept of a supervisor.4
On May 12, 1969, the Region conducted an election
among the Hospital's RNs. Sixty ballots were cast. Thirteen
ballots were cast for CNA, eighteen ballots were cast
against it and twenty-nine ballots were challenged.
The Hospital challenged the votes of four RNs, Norma
Martin, classified as IC/CCU head nurse; Janet Baker,
Norma Martin's relief ; Carole Neill, relief for a PM shift
charge nurse ; and Verna Perrier, an IC/CCU charge nurse
on the night shift, on the ground the duties of these four had
changed since the Board's decision, warranting their
exclusion from the unit as supervisors.
The Region's representative in charge of the election
challenged the votes of 25 RNs, several on the ground they
were in the classifications the Board had voted be permitted
to vote subject to challenge and determination of eligibility
in a later proceeding, and the balance on the ground they
were not on the list of 38 names prepared by the Hospital
and noted heretofore.
A hearing on the challenges was held before a HO
designated by the RD on June 17 and 18, 1969.
On August 22, 1969, the HO recommended sustaining the
challenges to the ballots cast by the RNs classified as
obstetrics unit supervisor and recovery room head nurse on
the ground the incumbents in those classifications were
supervisors; that the challenge to the ballots cast by RNs
classified as obstetrics charge nurse be overruled on the
ground the RNs so classified were not supervisors; and that
the balance of the challenges be overruled. The Hospital
sought and secured Board review of this recommendation.
On June 22, 1970, the Board issued a Supplemental
Decision (183 NLRB No. 94) adopting the HO's recom-
mendation to sustain the challenges to the ballots of the two
RN classifications just set out as added categories of
supervisors, sustained the Hospital's challenge to the ballot
of an additional RN, IC/CCU Head Nurse Norma Martin
(on the ground her duties had changed to include
supervisory functions since its first decision), overruled the
challenge to the ballots at RNs classified as obstetrics
charge nurse and the balance of the challenges, and
directed the latter be opened and counted and a revised
tally of ballots issued.
On June 30, 1970, the RD issued a revised tally showing
60 ballots cast, 3 invalid ballots (challenges sustained), 29
votes for CNA, and 28 votes against it.
On the basis of the revised tally, on July 7, 1970, the RD
certified that CNA had been duly designated as the
exclusive collective-bargaining representative of a unit of
the Hospital's professional employees consisting of all RNs,
excluding all other employees, the director of nurses, the
day supervisor, the PM supervisor, the night supervisor, the
central supply supervisor, the operating room supervisor,
the obstetrics supervisor, the recovery room head nurse, the
head nurse IC/CCU umt, the floor head nurses, guards,
and supervisors as defined in the Act.
On the same date (July 7, 1970), the Hospital filed
objections to conduct affecting the election with the
Region. On the following day, the RD returned the
objections to the Hospital as untimely filed, basing his
rejection on Section 102.59 of the Board's Rules and
Regulations, which requires that such objections be filed
within 5 days after receipt of the onginal tally of ballots
following an election, without regard to whether or not
there are challenged ballots sufficient in number to affect
the results of the election.
On July 20, 1970, the Hospital filed with the Board a
motion to revoke and withdraw certification, attaching
thereto as ground therefor the July 7, 1970, objections. The
Board denied the motion on August 20, 1970.
On August 10, 1970, CNA directed a letter to the
Hospital requesting dates and times for meeting to bargain
collectively concerning the rates of pay, wages, hours, and
working conditions of the unit employees. On August 18,
1970, the Hospital declined to bargain pending ruling on its
July 20, 1970, motion to revoke the certification. On August
24, 1970, CNA renewed its request, and repeated it on
September 4, 1970 (in writing). On September 8, 1970, the
Hospital replied by letter stating that it believed the
certification to be invalid and intended to seek judicial
invalidation thereof by continuing in its refusal to meet and
bargain with CNA pursuant to its requests.
B. Contentions of the Parties
1. The General Counsel
The General Counsel pointed out that the Hospital in its
answer to the complaint admitted that the Board certified
CNA as the duly designated representative of a majonty of
the Hospital's employees in an appropriate unit for
collective-bargaining purposes and further admitted that it
rejected CNA's request to meet and bargain concerning the
rates of pay, wages, hours, and working conditions of the
employees within that unit subsequent to the certification;
4 The findings in this paragraph are based upon the testimony of Dallas
Riddle, the parties stipulated that at all times pertinent Riddle was the
executive vice president of the Hospital and its agent and representative
acting upon its behalf.
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he contends that all the matters raised in the Hospital's
answer by way of denials and affirmative defenses already
were considered by the Board in the prior representation
proceeding, that they cannot be litigated, and therefore
findings of violation and an appropriate order should be
entered.
2. The Hospital
The Hospital contends that the unit is not appropriate for
collective-bargaining purposes, that a noncoerced majority
of employees within the designated unit did not select CNA
as their collective-bargaining representative, and that the
certification was improper, unwarranted, and illegal, citing
the following grounds in support of its contentions:
a. The HO in the original May 24, 1968, hearing in Case
20-RC-8148 unduly restricted the Hospital's presentation
of evidence and repeatedly made improper and prejudicial
rulings.
b. The Board by its original (April 14, 1969) decision in
that case to include the IC/CCU head nurse within the unit,
to permit RNs classified as obstetrics supervisor, and
recovery room head nurse and charge nurses to vote subject
to challenge, and by its erroneous statement in that
Decision that RNs classified as head floor nurse worked on
the PM and night shifts, prejudiced the Hospital in its
campaign against the CNA prior to the election and caused
eligible voters not to vote in the election.
c. The Board in its June 22, 1970, Supplemental
Decision in the representation case improperly included
within the unit RNs who worked as charge nurses in
IC/CCU and on the floors or wings during the PM and
night shifts, as well as RNs who worked as relief for the
obstetrics supervisor.
d. The RD erred in the representation case by his July
8, 1970, rejection of the Hospital's objections to the election
and the Board erred by its August 20, 1970, denial of the
Hospital's motion to revoke the certification.
3. The General Counsel's rejoinder
The General Counsel argued that the contentions set out
in a, c, and d, above, having already been reviewed and
decided by the Board, are not relitigable in this proceeding
and those set out in b are without merit.
C. The Issues
The issues are:
1. Whether the contentions set out in 2a, c, and d, above
are not reviewable by the Examiner, and
2. Whether the contentions set out in 2b above warrant
dismissal of the complaint, setting aside the certification,
and directing a new election.
D. Liligability
Near the outset of the hearing, the Examiner advised the
5 Rules and Regulations of the Board, Sections 102 67(f) and 102 69(c),
Pittsburgh Plate Glass Co v N L R B, 313 U S 146, Corral Sportswear Co,
156 NLRB 436, Lipman Motors, 187 NLRB No 36, Summer Sand & Gravel
Co, 128 NLRB 1368, 1371, enfd 293 F 2d 754 (C A 9), etc
6 The findings in this paragraph are based upon the testimony of Dallas
Hospital that inasmuch as the Board in its original (April
14, 1969) decision in the representation case considered and
ruled adversely to the Hospital upon the contention set out
in B2a above, he would not permit this contention to be
relitigated in this proceeding.
Shortly thereafter, the Hospital moved that the Examiner
reconsider all the determinations made by the RD and the
Board which are set out in B2 above, based upon a review
of the record made in the representation proceeding. The
Examiner noted that such review is obtainable only where a
party represents that he has material evidence which is
newly discovered or which was unavailable at the time of
the prior proceeding, or special circumstances exist, that
none of these factors were cited as ground for the motion,
and therefore denied it.5
The Examiner sees no reason for changing that ruling as
to those contentions set out in IIB2. which have already
been considered by and ruled upon by the Board in the
representation proceeding, i.e., IIB2a , c, and d above. The
remaining Hospital contentions will be analyzed and ruled
upon below.
E. Prejudice to Hospital's Campaign
The Hospital contends that the Board's original decision
(1) to include the IC/CCU head nurse within the unit (the
Board reversed itself in its Supplemental Decision following
the election on the basis of changed circumstances and
excluded the IC/CCU head nurse from the unit) and (2) to
leave the question of whether to include or exclude the
obstetrics supervisor, recovery room head nurse and charge
nurses for resolution at the hearing on challenges following
the election, prevented the Hospital from effectively
preventing the RNs in those classifications from campaign-
ing on behalf of CNA, and therefore such campaigning by
those RNs resulted in a coerced majority vote for
representation and inhibited the Hospital's campaign
against CNA.
The only testimony offered to support the factual aspects
of this contention was that of Dallas E. Riddle, the
executive vice president of the Hospital,6 to the effect that
he was aware that some RNs in the classifications in
question campaigned actively for CNA but refrained from
ordering them to desist therefrom for fear the Hospital
would face unfair labor practice charges as a result of such
order.?
At another point in his testimony, however, Riddle stated
that at a series of preelection meetings to which the RNs
were called by the Hospital, its representatives stated the
Hospital's position concerning which of the classifications
to be permitted to vote subject to challenge it considered to
be supervisory positions, asserted that RNs who were
supervisors owed a duty of loyalty to the Hospital, and
finally directed such RNs to refrain from any union
activity.
In many cases, and not just in the labor relations field, a
party has to take a calculated risk that a particular action
Riddle, the parties stipulated that at all times pertinent Riddle was the
executive vice president of the Hospital and its agent and representative
acting upon its behalf.
r A charge was filed against the Hospital during CNA's organizational
campaign (and later withdrawn)
DOCTORS' HOSPITAL OF MODESTO 837
may expose him to legal liability; this nevertheless is not a
valid defense in a subsequent proceeding where the issue is
tested. That same principle appears to apply here. It is
further noted that the Hospital had the same opportunity as
CNA in the representation hearing preceding the Board
decision to develop evidence sufficient to determine
whether the questioned classifications should be included
or excluded from the unit prior to the election.
The Examiner therefore finds and concludes that the
Hospital failed to meet its burden of proving that the
Board's decision to permit certain categories of the
Hospital's employees to vote subject to challenge and
determination of the eligibility of the challengees to vote
rather than remanding the case for further evidence
concerning the duties of the categories in question
prevented the Hospital from waging its antiunion campaign
and/or coerced a majority of the unit employees into voting
for CNA, and therefore further failed to provide a basis for
setting aside the certification, ordering a new election and
dismissing the complaint.
F. Eligible Voters Caused to Not Vote
The Board determined that RNs classified as head nurses
perform a sufficient amount of supervisory work to qualify
as supervisors under the Act and were therefore excluded
from the unit. Each of the four patient floors or wings, the
obstetrics floor or wing, and IC/CCU, had one head nurse
(six in all), and all six worked the day shift. The Board also
determined that the charge nurses on the PM and night
shifts, one on each shift on each of the four wings or floors,
one on each shift on the obstetrics wing or floor, and one on
each shift in IC/CCU, did not exercise a sufficient degree
of supervision to warrant their classification as
supervisors.8
Thus challenges to the votes of any of the former
classification at the election were sustained and challenges
to the latter were overruled.
Charge nurses in each category (the four general wings or
floors, the obstetrics wing or floor and IC/CCU) voted in
the election.
The Hospital argues that because the Board in its April
14, 1969, Decision stated: "The A, B, C and D wings of the
hospital are staffed three shifts per day, 7 days per week. On
duty in each wing on each shift is a registered nurse who has
the title "floor head nurse..." (emphasis supplied), the
eight Charge Nurses on duty in the four general wings or
floors were led to believe that they were ineligible to
participate in the election and thus deprived of an
opportunity to vote.
Two charge nurses testified. Both were employed in the
general wings . Both noted the official notice of the election
and further noted that their names were not listed on the
voter eligibility list posted by the Hospital on the employee
bulletin board next to the Board's official notice of the
election . One recalled that the Hospital's representative at a
preelection meetings called by the Hospital before the
election asserted that charge nurses were supervisors and
8 On the afternoon or PM shift, there were one charge nurse and one
medication nurse on duty in each general wing or floor (four in number),
one charge nurse and one staff nurse on duty in the obstetrical wing or
floor; and one charge nurse and one staff nurse in the IC/CCU On the
therefore barred from voting. The other recalled that the
issue of whether charge nurses were eligible to vote was
discussed at a CNA meeting and views were expressed pro
and con.
Riddle testified that he omitted the names of all RNs the
Hospital believed to be supervisors from the alleged
eligibility list the Hospital posted on the employee bulletin
board - omitting, inter alia, all charge nurses.
CNA distributed a document to all the RNs (including
the two wing nurses who testified) before the election
expressing its disagreement with the list posted by the
Hospital and urging all nurses who were not specifically
excluded on the Board's official notice to vote and let their
eligibility be determined, if challenged, in a proceeding
following the election.
The Hospital itself contributed to both the erroneous
description and any prevention of the charge nurses from
voting.
In the initial hearing before the HO, it was the Hospital's
witnesses who lumped the head nurses with charge nurses
on all shifts as an allegedly supervisory position; it was the
Hospital's counsel who so contended both orally and by
brief; it was a representative of the Hospital who told the
charge nurses in preelection meetings that they were
supervisors, that they owed a duty of loyalty to the
Hospital, that they were ineligible to vote in the election,
and ordered them to refrain or desist from giving any
support to CNA; it was the Hospital who omitted the
names of all charge nurses from the alleged eligibility list
posted on the employee bulletin board.
The official notice of election posted on that same
bulletin board did not list charge nurses as an excluded
category; as noted above, the RNs themselves disagreed on
the question and therefore the CNA, in a preelection
distribution, advised all RNs to vote unless they were in a
category explicitly excluded on the official Board notice.
In view of the fact a number of the charge nurses did
vote, including those on the general wings or floors, the fact
that the error was harmless (it did not appear on the official
notice, and the category of charge nurse was not listed as an
exclusion), and the fact that the Hospital itself materially
contributed to and compounded the decision by inducing
any charge nurse not to vote, the Examiner finds and
concludes that the Hospital failed to meet its burden of
proving that the minor descriptive error in the Board's
April 14, 1969, decision set out above caused the charge
nurses who did not vote to refrain from casting a ballot and
therefore further failed to provide a basis for setting aside
the certification, ordering a new election and dismissing the
complaint.
G. Summary and Conclusions
On the basis of the foregoing, the Examiner finds and
concludes that:
1. A unit consisting of all the RNs employed by the
Hospital at its Modesto, California location, excluding all
other employees, the director of nurses , the day supervisor,
night shift , there was one charge nurse (no other RNs) on duty in ear
general wing or floor , one charge nurse on duty in the obstetrical wing
floor, and one charge nurse, plus one staff nurse , on duty in IC/CCU.
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the PM supervisor , the night supervisor , the central supply
supervisor , the operating room supervisor , the obstetrics
supervisor , the recovery room head nurse, the IC/CCU
head nurse , the floor head nurses , guards, and other
supervisors as defined in the Act , is an appropriate
professional unit for collective-bargaining purposes under
Section 9 of the Act.
2. Since July 7, 1970, CNA has been the exclusive
representative of the Hospital 's employees within that unit
for the purpose of bargaining collectively with the Hospital
concerning their rates of pay, wages, hours, and working
conditions.
3. Since September 8, 1970, the Hospital has failed and
refused to meet and bargain with CNA pursuant to its
request concerning the rates of pay, wages, hours, and
working conditions of the Hospital 's employees within the
unit above specified.
4. By such refusal the Hospital has violated, and
continues to violate , Section 8 (a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
1. A unit consisting of all the RNs employed by the
Hospital at its Modesto, California location, excluding all
other employees, the director of nurses, the day supervisor,
the PM supervisor, the night supervisor, the central supply
supervisor, the operating room supervisor, the obstetrics
supervisor, the recovery room head nurse, the IC/CCU
head nurse, the floor head nurses, guards, and other
supervisors as defined in the Act, is an appropriate
professional unit for collective bargaining purposes under
Section 9 of the Act.
2. Since July 7, 1970, CNA has been the exclusive
representative of the Hospital's employees within that unit
for the purpose of bargaining collectively with the Hospital
concerning their rates of pay, wages, hours, and working
conditions.
3. Since September 8, 1970, the Hospital has failed and
refused to meet and bargain with CNA pursuant to its
request concerning the rates of pay, wages, hours, and
working conditions of the Hospital's employees within the
unit above specified.
4. By such refusal the Hospital has violated, and
continues to violate, Section 8(a)(5) and (1) of the Act.
5. The commerce facts and the qualification of the
Hospital as an employer engaged in commerce and CNA as
a labor organization within the meaning of Section 2(2), (5),
9 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings , conclusions , and Recommended Order herein shall, as provided
in Section 102 48 of the Rules and Regulations , be adopted by the Board
and become its findings , conclusions, and Order , and all objections thereto
shall be deemed waived for all purposes
10 In the event that the Board's Order is enforced by a judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
(6), and (7) of the Act are conceded by the parties and the
Examiner so finds and concludes.
6. The unfair labor practices herein specified affect
commerce as defined in the Act.
THE REMEDY
Having found that the Hospital engaged in unfair labor
practices in violation of Section 8(a)(5) and (1) of the Act,
the Examiner shall recommend that it cease and desist
therefrom and take affirmative action designed to effectu-
ate the purposes of the Act.
Upon the basis of the foregoing findings of fact,
conclusions of law, and the entire record, and pursuant to
Section 10(c) of the Act, the Examiner issues the following
recommended: 9
ORDER
Doctor's Hospital of Modesto, California, a subsidiary of
National Medical Enterprises, Inc., its officers, agents,
successors, and assigns, shall:
1. Meet and bargain with California Nurses Associa-
tion, an affiliate of American Nurses Association, at its
request, over the rates of pay, wages, hours, and working
conditions of its registered nurses within a unit consisted of
all its registered nurses employed at its Modesto, California
facility, excluding all other employees, the director of
nurses, the day supervisor, the P.M. supervisor, the night
supervisor, the central supply supervisor, the operating
room supervisor, the obstetrics supervisor, the recovery
room head nurse, the IC/CCU head nurse, the floor head
nurses, guards, and other supervisors as defined in the Act;
and when and if agreement is reached concerning those
terms and conditions, the Hospital will put that agreement
in writing and sign it;
2. Post on its premises at places where notices to
employees are customarily posted copies of the notice
attached hereto and marked "Appendix." 10 Copies of such
notice, on forms furnished by the Regional Director for
Region 20, shall be signed by an authorized representative
of the Hospital and posted immediately upon receipt
thereof and maintained for a period of 60 days thereafter.
Reasonable steps shall be taken to insure that the notices
are not altered, defaced, or covered by any other material.
3. Notify the Regional Director for Region 20 in
writing, within 20 days from the date of this Decision, what
steps the Hospital has taken to comply herewith.[[
Order of the National Labor Relations Board" shall be changed to read
"Posted pursuant to a judgment of the United States Court of Appeals
enforcing an Order of the National Labor Relations Board "
ii In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read-
"Notify the Regional Director for Region 20, in writing, within 20 days
from the date of this Order, what steps the Respondent has taken to
comply herewith "