Olympia Fields Osteopathic Medical Center

National Labor Relations Board - Board Decisions

Jan 8, 1980

247 N.L.R.B. 155 (N.L.R.B. 1980)

OLYMPIA FIELDS OSTEOPATHIC MEDICAL CENTER
Olympia Fields Osteopathic Medical Center and
International Brotherhood of Firemen and Oilers,
Local #7, AFL-CIO, and Local 399, International
Union of Operating Engineers, AFL-CIO. Case
13-CA- 18904
January 8, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
Upon a charge filed on July 12, 1979, by Interna-
tional Brotherhood of Firemen and Oilers, Local #7,
AFL-CIO, and Local 399, International Union of
Operating Engineers, AFL-CIO, herein called the
Unions, and duly served on Olympia Fields Osteo-
pathic Medical Center, herein called Respondent, the
General Counsel of the National Labor Relations
Board, by the Regional Director for Region 13, issued
a complaint and notice of hearing on July 31, 1979,
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 June 5, 1979,
following a Board election in Case 13-RC-14991, the
Unions were duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate;' and that, commencing
on or about July 3, 1979, orally and again by letter
dated July 5, 1979, and at all times thereafter,
Respondent has refused, and continues to refuse to
bargain collectively with the Unions as the exclusive
bargaining representative, although the Unions have
requested and are requesting it to do so. On August
10, 1979, Respondent filed its answer to the complaint
admitting in part, and denying in part, the allegations
in the complaint. Respondent admits that it meets the
Board's jurisdictional standards. Respondent denies
that the employees designated by the Regional Direc-
tor in his Decision and Direction of Election consti-
tute an appropriate bargaining unit. Respondent
admits that on June 5, 1979, the Regional Director for
Region 13 certified the Unions as the exclusive
' Official notice is taken of the record in the representation proceeding, Case
13-RC-14991. 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
Elecirosystems, 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
(Sth Cir. 1969). Interlype Co. v. Penello, 269 F.Supp. 573 (D.C. Va 1967);
247 NLRB No. 24
bargaining representative of all the employees in the
unit found appropriate. Respondent admits the allega-
tion that it refused, and continues to refuse, to meet
and bargain with the Unions as the collective-bargain-
ing representative, but denies the conclusory 8(a)(5)
and (1) allegations. It alleges that the Regional
Director erred by certifying the Unions as the exclu-
sive collective-bargaining representative of Respon-
dent's Plant and Facilities department employees,
because these employees do not comprise a unit
appropriate for the purposes of collective bargaining.
Respondent further alleges that a separate unit of
maintenance employees would ignore the congression-
al admonition against undue proliferation of bargain-
ing units in the health care industry.
On September 24, 1979, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. The Unions filed a memorandum
in support thereof. Subsequently, on October 2, 1979,
the Board issued an order transferring the proceeding
to the Board and a Notice To Show Cause why the
General Counsel's Motion for Summary Judgment
should not be granted. Respondent thereafter filed a
response to the Notice To Show Cause.2
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
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 its response to
the Notice To Show Cause, Respondent attacks the
Unions' certification on the basis that the petitioned-
for unit is inappropriate as a matter of law.
Review of the record herein reveals that in Case 13-
RC-14991 the petition was filed by the Unions on
February 8, 1979. On April 3, 1979, the Regional
Director issued his Decision and Direction of Elec-
tion, in which he found, inter alia, that the petitioned-
for unit of boilerroom and certain maintenance em-
ployees was an appropriate unit for collective bargain-
ing. On or about April 13, 1979, Respondent filed a
request for review of the Regional Director's Decision
and Direction of Election, which was denied by the
Board on May 3, 1979, as it raised no substantial
issues warranting review. The election was held on
May 4, 1979. At the conclusion of the balloting, the
tally revealed that 13 votes had been cast for and 6
Follett Corp.. 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968): Sec.
9(d) of the NLRA, as amended.
Respondent's motion was styled as "Cross-Motion for Summary Judg-
ment. Opposition to the General Counsel's Motion for Summiry Judgment
and Motion to Remand to an Administrative Law Judge."
155
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
votes had been cast against the Unions. There were no
challenged ballots. On May 11, 1979, Respondent filed
timely objections to the conduct of the election. On
June 5, 1979, the Regional Director issued a Supple-
mental Decision on Objections and Certification of
Representative overruling Respondent's objections
and certifying the Unions as exclusive collective-bar-
gaining representative of the employees in the unit
found appropriate.
Following a request by the Unions on or about May
8, 1979, that Respondent engage in collective-bargain-
ing negotiations with the Unions, Respondent, by
letter dated July 5, 1979, refused to recognize and
bargain in good faith with the Unions as the exclusive
bargaining representative of its employees in the
certified unit.
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 to
relitigate issues which were or could have been
litigated in a prior representation proceeding.'
All issues raised by Respondent in this proceeding
were or could have been litigated in the prior
representation proceeding, and 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
Respondent has not raised any issue which is properly
litigable in this unfair labor practice proceeding.
Accordingly, we grant the Motion for Summary
Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is an Illinois corporation engaged in the
operation of a nonprofit health care institution located
at Olympia Fields, Illinois. In the course of its
business operations within the State of Illinois, Re-
spondent annually purchases goods and services val-
ued in excess of $5,000 directly from sources located
outside the State of Illinois and annually derives gross
revenues in excess of $250,000.
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
See Pittsburgh Plate Glass Co. v. N.LR.B.. 313 U.S. 146, 162 (1941); Rules
and Regulations of the Board, Secs. 102.67(0 and 102.69(c).
will effectuate the policies of the Act to assert
jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Firemen and Oilers,
Local #7, AFL-CIO, and Local 399, International
Union of Operating Engineers, AFL-CIO, are labor
organizations within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of Respondent constitute a
unit appropriate for collective-bargaining purposes
within the meaning of Section 9(b) of the Act:
All employees employed in the Employer's Plant
and Facilities department (including operating
engineers, boiler watch engineers, maintenance
mechanics I, II, and III) presently located at
20201 South Crawford Avenue, Olympia Fields,
Illinois, but excluding the biomedical engineer,
professional employees, technical employees, of-
fice clerical employees, guards and supervisors as
defined in the Act, and all other employees
employed by the Employer.
2. The certification
On May 4, 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 13, designated the Unions as their
representative for the purpose of collective-bargaining
with Respondent. The Unions were certified as the
collective-bargaining representative of the employees
in said unit on June 5, 1979, and the Unions continue
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 May 8, 1979, and at all
times thereafter, the Unions have requested Respon-
dent to bargain collectively with them as the exclusive
collective-bargaining representative of all the employ-
ees in the above-described unit. Commencing on or
about July 5, 1979, and continuing at all times
156
OLYMPIA FIELDS OSTEOPATHIC MEDICAL CENTER
thereafter to date, Respondent has refused, and
continues to refuse, to recognize and bargain with the
Unions as the exclusive representative for collective
bargaining of all employees in said unit.
Accordingly, we find that Respondent has, since
July 5, 1979, and at all times thereafter, refused to
bargain collectively with the Unions as the exclusive
representative of the employees in the appropriate
unit, and that, by such refusal, Respondent has
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) and (1) 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 operations
described in section I, above, have a close, intimate,
and substantial relationship to trade, traffic, 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 Unions as the
exclusive representative of all employees in the appro-
priate 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 certification
as beginning on the date Respondent commences to
bargain in good faith with the Unions as the recog-
nized bargaining representative in the appropriate
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 Con-
struction 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. Olympia Fields Osteopathic Medical Center is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. International Brotherhood of Firemen and Oilers,
Local #7, AFL-CIO, and Local 399, International
Union of Operating Engineers, AFL-CIO, are labor
organizations within the meaning of Section 2(5) of
the Act.
3. All employees employed in the Employer's Plant
and Facilities department (including operating engi-
neers, boiler watch engineers, maintenance mechanics
I, II, and III) presently located at 20201 South
Crawford Avenue, Olympia Fields, Illinois, but ex-
cluding the biomedical engineer, professional employ-
ees, technical employees, office clerical employees,
guards and supervisors as defined in the Act, and all
other employees employed by the Employer, consti-
tute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the
Act.
4. Since June 5, 1979, the above-named labor
organizations have been and are now 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 July 5, 1979, and at all
times thereafter, to bargain collectively with the
above-named labor organizations 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, Respondent
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 engaged in and is
engaging in unfair labor practices within the meaning
of Section 8(a)(l) 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,
Olympia Fields Osteopathic Medical Center, Olympia
Fields, Illinois, 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 International Brotherhood of
Firemen and Oilers, Local #7, AFL-CIO, and Local
399, International Union of Operating Engineers,
157
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
AFL-CIO, as the exclusive bargaining representative
of its employees in the following appropriate unit:
All employees employed in the Employer's Plant
and Facilities department (including operating
engineers, boiler watch engineers, maintenance
mechanics I, II, and III) presently located at
20201 South Crawford Avenue, Olympia Fields,
Illinois, but excluding the biomedical engineer,
professional employees, technical employees, of-
fice clerical employees, guards and supervisors as
defined in the Act, and all other employees
employed by the Employer.
(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 understand-
ing is reached, embody such understanding in a signed
agreement.
(b) Post at its Olympia Fields, Illinois, place of
business copies of the attached notice marked "Ap-
pendix."' Copies of said notice, on forms provided by
the Regional Director for Region 13, 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. 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 13, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
MEMBER PENELLO, dissenting:
Instead of granting the General Counsel's Motion
for Summary Judgment, I would dismiss the com-
plaint in its entirety on the ground that the petitioned-
for unit is inappropriate. See my dissent in Allegheny
General Hospital, 239 NLRB 872 (1978), enforcement
denied 608 F.2d 965 (3d Cir. 1979).
' 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 Inter-
national Brotherhood of Firemen and Oilers,
Local #7, AFL-CIO, and Local 399, Interna-
tional Union of Operating Engineers, 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 Unions, 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 employees employed in the Employer's
Plant and Facilities department (including
operating engineers, boiler watch engineers,
maintenance mechanics I, II, and III) presently
located at 20201 South Crawford Avenue,
Olympia Fields, Illinois, but excluding the
biomedical engineer, professional employees,
technical employees, office clerical employees,
guards and supervisors as defined in the Act,
and all other employees employed by the
Employer.
OLYMPIA FIELDS OSTEOPATHIC MEDICAL
CENTER
158