Princeton Health Care Center

National Labor Relations Board - Board Decisions

May 31, 1989

294 N.L.R.B. 640 (N.L.R.B. 1989)

640 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Princeton Memorial Hospital d/b/a Princeton
Health Care Center and District 1199,
WV/KY/OH National Union of Hospital and
Health Care Employees , AFL-CIO and Lor-
raine R. Agee . Cases 9-CA-21252-1, -2, -4, 9-
CA-21516-1, -2, 9-CA-21495 , and 9-RC-
14396
May 31, 1989
SUPPLEMENTAL DECISION AND
ORDER ON REMAND
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On September 23, 1987, the Board issued a Deci-
sion and Order' finding that the Respondent violat-
ed Section 8(a)(1) and (3) of the Act. Thereafter,
the Board filed a petition for enforcement with the
United States Court of Appeals for the Fourth Cir-
cuit.
On July 11, 1988, the Respondent filed with the
Board a motion to reconsider order. The Board's
Deputy Executive Secretary dismissed the motion,
stating that the Board lacked jurisdiction over the
case because it was then pending before the court.
On July 19, 1988, the Respondent filed a motion
to remand with the court in which it requested the
court to remand the case to the Board with direc-
tions "that it reconsider its Order and determine
whether or not it does, in fact, have jurisdiction
over Respondent in light of the modification in Re-
spondent's business effective July 1, 1988."
On July 22, 1988, the General Counsel filed with
the court the Board's response to the Respondent's
motion in which it said "the Board does not object
to this Court's remanding the record to the Board
so that the Board is not precluded from having an
opportunity to consider a motion for reconsider-
ation filed by the Respondent."
On August 10, 1988, the court issued an order
remanding the case to the Board for further pro-
ceedings.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
We have accepted the court's remand and exam-
ined the Respondent's previously filed motion to
reconsider and its contention that its new manage-
ment agreement with Princeton Community Hospi-
tal, an alleged political subdivision within Section
2(2) of the Act, has deprived the Board of jurisdic-
tion over it.
We have determined not to remand this case for
further proceedings on the Respondent's claim of
changed circumstances affecting the Board's juris-
1 285 NLRB 1016
diction. Rather, for the following reasons; we will
continue to assert jurisdiction over the Respondent
in this proceeding and will reaffirm the Order that
the Board earlier entered at 285 NLRB 1016.
It is clear that the Board has statutory jurisdic-
tion over the Respondent. The claim of changed
circumstances that the Respondent raises implicates
the Board's discretionary jurisdiction.2 In certain
circumstances, where the Board's statutory juris-
diction is established, the Board has indicated that
it will assert jurisdiction without regard to whether
any of its discretionary standards for asserting ju-
risdiction have been met. Most notable in that
regard for purposes of this case is the precedent
dealing with alleged violations of Section 8(a)(4) of
the Act.3 In those cases, the Board has indicated
that
[w]here . . . the substantive allegations of the
complaint charge interference with the statuto-
ry right of an individual to resort to the
Board's processes, public policy requires that
the Board exercise its jurisdiction to the fullest
extent.4
While we do not deal here with any 8(a)(4) allega-
tions, we do have similar public policy concerns
implicated because we deal here with a duly-en-
tered Board Order. That Order indicates the
Board's determination that at the time of the unfair
labor practices the Respondent was subject to the
Board's jurisdiction. Now, the Respondent claims
that due to alleged changed circumstances, some 8
months after the Board's Order, the Board has no
jurisdiction over it for purposes of this case. We
reject that argument. It is clear that we do have
statutory jurisdiction over the Respondent and that
we had discretionary jurisdiction over the Re-
spondent at the time of the unfair labor practices
and the time of our Order; therefore, we will con-
tinue to assert jurisdiction over the Respondent for
the purposes of enforcing, and ensuring compliance
with, the Order already entered.
Our conviction that this is the proper approach
in this case is reinforced by a review of certain
facts. At the time of the unfair labor practices in
this case, the Respondent did not contest the
Board's jurisdiction over it but, in fact, had assent-
ed to it. Thus, in December 1983, the Respondent
and the Union entered into a Stipulation for Certifi-
cation Upon Consent Election. Elections were then
held in January and August 1984, the August elec-
tion being won by the Union. The Respondent
2 See Springfield Transit Management, 281 NLRB 72 fn 1 (1986)
s See, e g, Nutmeg Coal Co, 224 NLRB 1098 (1976)
4 Stage Employees IATSE Local 307 (Velto Iacobucci), 159 NLRB 1614
fn 3 (1966)
294 NLRB No. 47
PRINCETON HEALTH CARE CENTER
filed objections to the election, which a hearing of-
ficer recommended be overruled in November
1984, and the Respondent filed exceptions to the
hearing officer's report in November 1984. It was
not until January 1985, while exceptions to that
report were pending, that the Respondent contest-
ed the Board's jurisdiction. Although it then did so
based in part on events that predated the unfair
labor practices involved in this proceeding, it is
clear that when it committed those unfair labor
practices in August-October 1984, it did not contest
the Board's jurisdiction. Therefore, employees en-
gaged in union activity at that time acted under an
assumption-not challenged by the Respondent but
indeed conceded by its signing the stipulation for
election and by its participation in the election
process and endorsed by the Board's participation
in that process-that they were covered under the
Act. In a sufficiently similar situation,s the Board
asserted jurisdiction in the face of a claim that the
Board no longer had jurisdiction over the employ-
er.6 For all the above reasons, we will continue to
5 See Children's Baptist Home of Southern California, 215 NLRB 303
(1974), enfd 567 F 2d 256 (9th Cir 1978)
6 In Children's Baptist Home, the employer in a representation proceed-
ing had initially argued that it was not subject to the Board ' s discretion-
ary jurisdiction The Acting Regional Director rejected that claim and
asserted jurisdiction The employer did not file a request for review
Thereafter, the employer fired a number of employees and the Regional
Director issued a complaint alleging that the discharges were because of
the employees' union activities Then the Board issued Ming Quong Chil-
dren's Center, 210 NLRB 899 (1974), declining to assert discretionary ju-
risdiction over nonprofit charitable organizations and the employer filed
a motion to dismiss the complaint arguing that , under Ming Quong, it no
longer was subject to the Board's jurisdiction An administrative law
judge granted the motion but the Board reversed for two reasons It
noted first that the employer had failed to file a request for review of the
earlier decision asserting jurisdiction Second, it noted that the employees
had engaged in union activities on the express assurances of the union
that the Board by its decision in the representation case had asserted ju-
risdiction over the employer In these circumstances, the Board agreed
that "it would be unconscionable for the Board now to turn its back on
these employees by declining to afford them the protections of the Act
which the Board led them to believe they enjoyed " 215 NLRB at 303-
304
641
assert jurisdiction over the Respondent in this pro-
ceeding.
ORDER
The National Labor Relations Board affirms its
Decision and Order at 285 NLRB 1016 (1987), and
orders that the Respondent, Princeton Memorial
Hospital Co., d/b/a Princeton Health Care Center,
Princeton, West Virginia, its officers, agents, suc-
cessors, and assigns, shall take the action it sets
forth.
CHAIRMAN STEPHENS, dissenting.
As explained in my dissent in Res-Care, Inc., 280
NLRB 670, 675 (1986), I regard it to be a question
of statutory, not discretionary, jurisdiction whether
the control of a Section 2(2) exempt entity over an
employer's labor relations is sufficient to make the
Act inapplicable to the employment relationship.
Because matters going to the Board's subject
matter jurisdiction under the Act may be raised at
any time, I would remand for a determination of
the character of PCH and, if it is found to be an
exempt entity, a further determination concerning
the extent of its control over the working condi-
tions of the unit employees at issue here.
Children's Baptist Home and this case share the theme that when the
employees in each case were the subject of unfair labor practices, all par-
ties had indicated by their various actions that the Board had jurisdiction
over the employer involved In such circumstances, it would be inequita-
ble to foreclose the Board's jurisdiction to remedy the Respondent's
unfair labor practices because of events that occurred almost 4 years after
the unfair labor practices were committed
Member Cracraft finds it unnecessary to review the Respondent's prof-
fered evidence to determine whether it, in fact, establishes any changed
circumstances warranting a reversal of the Board's earlier assertion of ju-
risdiction
Member Johansen additionally finds that even if Princeton Community
Hospital is a political subdivision , the Board is not precluded from assert-
ing jurisdiction over the Respondent Because the Respondent retains
control of its own labor relations policies, the Board, in Member Johan-
sen's view, may properly continue to assert jurisdiction over the Re-
spondent