Ochsner Clinic

National Labor Relations Board - Board Decisions

Mar 31, 1972

196 N.L.R.B. 10 (N.L.R.B. 1972)

10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ochsner Clinic and Social Economic Organization of
Staff Radiologic Technologists . Case 15-CA-4316
March 31, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
JENKINS
Upon a charge filed on December 17, 1971, by the
Social Economic Organization of Staff Radiologic
Technologists, herein called the Union, and duly
served on Ochsner Clinic, herein called the Respon-
dent, the General Counsel of the National Labor Re-
lations Board, by the Regional Director for Region
15, issued a complaint on December 28, 1971, 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 a Trial Exam-
iner were duly served on the parties to this proceeding.
With respect to the unfair labor practices, the com-
plaint alleges in substance that on October 8, 1971,
following a Board election in Case 15-RC-4595 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 December 14, 1971, and at all times there-
after, Respondent has refused, and continues to date
to refuse, to bargain collectively with the Union as the
exclusive bargaining representative, although the Un-
ion has requested and is requesting it to do so. On
January 7, 1972, Respondent filed its answer to the
complaint admitting in part, and denying in part, the
allegations in the complaint.
On January 12, 1972, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on January 19,
1972, 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. In response to the
Notice To Show Cause the Respondent filed a Cross-
Motion for Summary Judgment.
Pursuant to the provisions of Section 3(b) of the
'Official notice is taken of the record in the representation proceeding,
Case 15-RC-4595, as the term "record" is defined in Secs 102.68 and 102.
69(f) of the Board's Rules and Regulations , Series 8, as amended . See LTV
Electrosystems, Inc., 166 NLRB 938, enfd. 388 F 2d 683 (C.A 4, 1968);
Golden Age Beverage Co, 167 NLRB 151, Intertype Co. v Penello, 269 F.
Supp . 573 (D.C. Va, 1967); Follett Corp., 164 NLRB 378, enfd 397 F.2d 91
(C.A. 7, 1968), Sec. 9(d) of the NLRA Both the Respondent and counsel for
the General Counsel erroneously refer to the representation proceeding as
Case 15-RC-4576, apparently through inadvertence.
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
The Respondent's Answer and Cross-Motion for
Summary Judgment contest the validity of the
Union's certification and its status as the exclusive
bargaining representative for the unit employees. This
challenge rests on two grounds. The Respondent ar-
gues first, that the Board does not have jurisdiction
over its clinic and second, that the unit found by the
Board is not appropriate for collective bargaining un-
der the Board's standards. The Respondent admits
that it does not proffer any newly discovered or previ-
ously unavailable evidence. The General Counsel
contends that the Respondent does not raise any tria-
ble issues and that summary judgment should be
granted. We agree.
On March 8, 1971, the Union filed a petition to
represent a unit of nonsupervisory radiological tech-
nologists . Since the Respondent refused to recognize
the Union as exclusive bargaining representative for
the unit, a representation hearing was conducted on
April 5, 1971. Upon reviewing the record of the hear-
ing, the Board affirmed the rulings of the Hearing
Officer. Ochsner Clinic, 192 NLRB No. 156 (1971)
(Chairman Miller dissenting). The Board found that
the Respondent was engaged in commerce within the
meaning of the Act on the basis of its stipulated vol-
ume of business and purchases of goods from outside
the State under the authority of Quin and Ramstad
Clinic, 173 NLRB 1185 (1963), and Mayo Clinic, 168
NLRB 557 (1967), in which jurisdiction was asserted
over clinics "not primarily engaged in education and
research or operating a nonprofit hospital," which
had a substantial impact on commerce. 173 NLRB at
1185.2 The Board further found that radiological tech-
nologists constituted a clearly identifiable group with
a separate community of interests such that they
might constitute a separate appropriate unit. The
Board then directed that an election be held in the
unit.
2 The record in the representation proceeding , Case 15-RC-595, and the
decision in Ochsner Clinic, 192 NLRB No 156 (1971 ), show the Respondent
stipulated that its gross revenues were valued in excess of $250,000 and it
received or purchased goods in excess of $50 ,000 through interstate com-
merce . A stipulation or purchases in interstate commerce in excess of $50,000
is sufficient for the Board 's exercise of jurisdiction The Permanente Medical
Group, 187 NLRB No. 143 (1971 ). The Respondent 's medical practice does
not have the insubstantial impact on commerce that we found in Alameda
Medical Group, Inc, 195 NLRB No. 57 (1972). We also note that the amount
of gross revenues stipulated here meets the Board 's standard for exerting
jurisdiction over proprietary hospitals Butte Medical Properties, d/b/a/ Med-
ical Center Hospital, 168 NLRB 266 (1967).
196 NLRB No. 4
OSCHNER CLINIC
Consequently, on September 30, 1971, a representa-
tion election was held in which the Union received a
majority of votes cast, and the Union was thereafter
certified as the exclusive bargaining representative for
the unit of nonsupervisory radiological technologists
employed in the Respondent's clinic.
It is well settled that in the absence of newly discov-
ered or previously unavailable evidence or special cir-
cumstances a respondent 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 the Respondent in this proceed-
ing were or could have been litigated in the prior
representation proceeding, and the Respondent does
not offer to adduce at a hearing any newly discovered
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 the Respondent has not raised any issue
which is properly litigable in this unfair labor practice
proceeding. We shall, accordingly, grant the General
Counsel's Motion for Summary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a partnership engaged in the
practice of medicine and operating in Jefferson Par-
ish, Louisiana. During the past 12 months, a repre-
sentative period in this case, the Respondent
conducted a gross volume of business in excess of
$250,000 in the course of its business conducted at its
Jefferson Parish, Louisiana, facility. During the same
period the Respondent purchased and received goods
and supplies valued in excess of $50,000 from outside
the State of Louisiana.
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 effectu-
ate the policies of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
The Social Economic Organization of Staff Radio-
logic Technologists is a labor organization within the
meaning of Section 2(5) of the Act.
3 See Pittsburgh Plate Glass Co. v. N.L.R.B, 313 U.S 146, 162 (1941 ), Rules
and Regulations of the Board, Sec. 102.67 (f) and 102.69(c).
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
11
The following employees of the Respondent con-
stitute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9 (b) of the
Act:
All nonsupervisory radiological technologists
employed at the Respondent's Jefferson Parish,
Louisiana , facility , excluding office and clerical
employees , professional employees , guards and
supervisors as defined in the Act , and all other
employees.
2. The certification
On September 30, 1971, 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 15 designated the Union as their
representative for the purpose of collective bargaining
with the Respondent. The Union was certified as the
collective-bargaining representative of the employees
in said unit on October 8, 1971, and the Union contin-
ues 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 December 14, 1971, and
at all times thereafter, the Union has requested the
Respondent to bargain collectively with it as the ex-
clusive collective-bargaining representative of all the
employees in the above-described unit. Commencing
on or about December 14, 1971, 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 representative for collec-
tive bargaining of all employees in said unit.
Accordingly, we find that the Respondent has,
since December 14 and at all times thereafter, refused
to bargin collectively with the Union as the exclusive
representative of the employees in the appropriate
unit, and that, by such refusal, Respondent has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the
Act.
12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the 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.
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 appro-
priate unit , and, if an understanding is reached, em-
body 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 select-
ed bargaining agent for the period provided by law,
we shall construe the initial period of certification as
beginning on the date Respondent commences to bar-
gain in good faith with the Union as the recognized
bargaining representative in the appropriate unit. See
Mar-Jac Poultry Company, Inc., 136 NLRB 785; Com-
merce Company d/b/a Lamar Hotel, 140 NLRB 226,
229, enfd . 328 F .2d 600 (C.A. 5), cert. denied 379 U.S.
817; Burnett Construction Company, 149 NLRB 1419,
1421, enfd . 350 F.2d 57 (C.A. 10).
The Board , upon the basis of the foregoing facts
and the entire record , makes the following:
CONCLUSIONS OF LAW
1. Ochsner Clinic is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of
the Act.
2. Social Economic Organization of Staff Radiolog-
ic Technologists is a labor organization within the
meaning of Section 2(5) of the Act.
3. All nonsupervisory radiological technologists
employed at the Respondent's Jefferson Parish, Lou-
isiana, facility, excluding office and clerical employ-
ees, professional employees, guards and supervisors
as defined in the Act, and all other employees, consti-
tute a unit appropriate for the purpose of collective
bargaining within the meaning of Section 9(b) of the
Act.
4. Since October 8, 1971, the above-named labor
organization has been and now is the certified and
exclusive 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 December 14, 1971, and
at all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive bar-
gaining representative of all the employees of Respon-
dent 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, Respondent
has interfered with, restrained, and coerced, and is
interfering with, restraining, and coercing, employees
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
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 Rela-
tions Board hereby orders that Respondent, Ochsner
Clinic, 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 condi-
tions of employment with Social Economic Organiza-
tion of Staff Radiologic Technologists as the exclusive
bargaining representative of its employees in the fol-
lowing appropriate units:
All nonsupervisory radiological technologists
employed at the Respondent's Jefferson Parish,
Louisiana, facility, excluding office and clerical
employees, professional employees, guards and
supervisors as defined in the Act, and all other
employees.
(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 Jefferson Parish, Louisiana, facility
OSCHNER CLINIC 13
copies of the attached notice marked "Appendix."4
Copies of said notice, on forms provided by the Re-
gional Director for Region 15 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 15, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
CHAIRMAN MILLER, dissenting
For the reasons stated in my dissenting opinion in
Ochsner Clinic, 192 NLRB No. 156, I would not find
the unit an appropriate one for purposes of collective
bargaining and would dismiss the complaint.
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 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."
APPENDIX
the employees in the bargaining unit described
below.
WE WILL NOT in any like or related manner in-
terfere 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 representative 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 agreement. The
bargaining unit is:
All nonsupervisory radiological technolo-
gists employed at the Respondent's Jeffer-
son Parish, Louisiana, facility, excluding
office and clerical employees, professional
employees, guards and supervisors as de-
fined in the Act, and all other employees.
Dated By
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 con-
cerning rates of pay, wages, hours, and other
terms and conditions of employment with Social
Economic Organization of Staff Radiologic
Technologists as the exclusive representative of
OCHSNER CLINIC
(Employer)
(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 compli-
ance with its provisions may be directed to the
Board's Office, T6024 Federal Building (Loyola), 701
Loyola Avenue, New Orleans, Louisiana 70113, Tele-
phone 504-527-6361.