Princeton Health Care Center

National Labor Relations Board - Board Decisions

Jul 17, 1990

299 N.L.R.B. 107 (N.L.R.B. 1990)

PRINCETON HEALTH CARE CENTER 107
Princeton Memorial Hospital d/b/a Princeton
Health Care Center and District 1199,
WV/KY/OH National Union of Hospitals and
Health Care Employees, AFL-CIO. Case 11-
CA-13777
July 17, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On April 10, 1990, the General Counsel of the
National Labor Relations Board issued a complaint
alleging that the Respondent has violated Section
8(a)(5) and (1) of the National Labor Relations Act
by refusing the Union's request to bargain follow-
ing the Union's certification in Case 9-RC-14396
(Official notice is taken of the "record" in the rep-
resentation proceeding as defined in the Board's
Rules and Regulations, Secs 102 68 and 102 69(g),
Frontier Hotel, 265 NLRB 343 (1982) ) The Re-
spondent filed its answer admitting in part and de-
nying in part the allegations in the complaint
On May 14, 1990, the General Counsel filed a
Motion to Strike Portions of Respondent's Answer
to Complaint and Motion for Summary Judgment
On May 17, 1990, the Board issued an order trans-
ferring the proceeding to the Board and a Notice
to Show Cause why the motion should not be
granted The Respondent has filed a motion in op-
position seeking the denial of the General Counsel's
motion and requesting dismissal of the complaint,
and a response to the Notice to Show Cause seek-
ing denial of the General Counsel's motion
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
Ruling on Motion for Summary Judgment
In its answer the Respondent admits its refusal to
bargain but attacks the validity of the certification
on the ground that the Board lacks jurisdiction
over the Respondent The Respondent renews its
attack on the Board's jurisdiction in its motion in
opposition and argues that the complaint is harass-
ing inasmuch as it raises nothing that was not liti-
gated in an unspecified matter in the Fourth Cir-
cuit The Respondent is presumably referring to
the underlying representation case (9-RC-14396),
which was consolidated with an unfair labor prac-
tice complaint to resolve the jurisdictional issue'
'The Board asserted jurisdiction over the Respondent in Princeton
Health Care Center, 285 NLRB 1016 (1987), and 294 NLRB 640 (1989)
Member Devaney did not participate in the Board's pnor decisions in-
volving the Respondent
All representation issues raised by the Respond-
ent were or could have been litigated in the prior
representation proceeding The Respondent does
not offer to adduce at a hearing any newly discov-
ered and previously unavailable evidence In its
motion in opposition the Respondent affirmatively
states that this current complaint raises nothing that
was not litigated in the underlying representation
case, which had been consolidated with an unfair
labor practice complaint Nor does Respondent
allege any special circumstances 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 unfair labor
practice proceeding See Pittsburgh Plate Glass Co
v NLRB, 313 U S 146, 162 (1941) Accordingly,
we grant the Motion for Summary Judgment 2
On the entire record, the Board makes the fol-
lowing
FINDINGS OF FACT
I JURISDICTION
The Respondent, Princeton Memorial Hospital
d/b/a Princeton Health Care Center, a West Vir-
ginia corporation, is engaged in the operation of a
nursing home at its facility in Princeton, West Vir-
ginia, where it annually derives gross revenues in
excess of $100,000 and receives goods valued in
excess of $5000 directly from points outside the
State of West Virginia We find that the Respond-
ent is an employer engaged in commerce within
the meaning of Section 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
II ALLEGED UNFAIR LABOR PRACTICES
A The Certification
Following the election held August 21, 1984, the
Union was certified December 3, 1987, as the col-
lective-bargaining representative of the employees
in the following appropriate unit
All full-time and regular part-time non-super-
visory service and maintenance employees, in-
cluding nurse technicians, orderlies, house-
keeping employees, dietary employees, laundry
employees, restorative aides and activities
aides, but excluding all technical employees,
business office clerical employees, managerial
employees, registered nurses, licensed practical
2 Inasmuch as we are granting the General Counsel's Motion for Sum-
mary Judgment, we deny his motion to strike portions of the Respond-
ent's answer We also deny the Respondent's motion to dismiss the com-
plaint
299 NLRB No 16
108

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
nurses, and all other professional employees,
guards and supervisors as defined in the Act.
The Union continues to .be the exclusive represent-
ative under Section 9(a) of the Act. -
B. Refusal to Bargain
Commencing on or about August 21, 1984, and
continuing to date, the Union has requested, and
did specifically request in writing on November 15,
1989, that the Respondent bargain, and, since on or
about August 21, 1984, and at all times thereafter,
notwithstanding the Union's written request of No-
vember 15, 1989, the Respondent has refused. 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 to bargain with the Union as the ex-
clusive collective-bargaining representative of em-
ployees in the appropriate unit, the Respondent has
engaged in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(5) and
(1) and Section 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 law, we shall construe the ini-
tial period of the certification 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, Princeton Memorial Hospital
d/b/a Princeton Health Care Center, Princeton,
West Virginia, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Refusing to bargain with District 1199,
WV/KY/OH National Union of Hospitals and
Health Care Employees, AFL-CIO as the exclu-
sive bargaining representative of the employees in
the bargaining unit.
(b) In any like or related manner interfering
with, restraining, Or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) On request, bargain with the Union as the ex-
clusive representative of the employees in the fol-
lowing appropriate unit on terms and conditions of
employment and, if an understanding is reached,
embody the understanding in a signed agreement:
All full-time and regular part-time non-super-
visory service and maintenance employees, in-
cluding nurse technicians, orderlies, house-
keeping employees, dietary employees, laundry
employees, restorative aides and activities
aides, but excluding all technical employees,
business office clerical employees, managerial
employees, registered nurses, licensed practical
nurses, and all other professional employees,
guards and supervisors as defined in the Act.
(b) Post at its facility in Princeton, West Virgin-
ia, copies of the attached notice marked "Appen-
dix." 3 Copies of the notice, on forms provided by
the Regional Director for Region 11, after being
signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediate-
ly upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material.
(c) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
CHAIRMAN STEPHENS, dissenting.
I would deny the Motion for Summary Judg-
ment on the ground that issues going to the
Board's subject matter jurisdiction are unresolved.
See my dissenting opinion at 294 NLRB 640
(1989).
3 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 Nation-
al 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."
PRINCETON HEALTH CARE CENTER 109
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 the National Labor Relations Act
and has ordered us to post and abide by this notice
WE WILL NOT refuse to bargain with District
1199, WV/KY/OH National Umon of Hospitals
and Health Care Employees, AFL-CIO, as the ex-
clusive representative of the employees m the bar-
gaining unit
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act
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 bargaining unit
All full-time and regular part-time non-super-
visory service and maintenance employees, in-
cluding nurse techmcians, orderlies, restorative
aides and activities aides, but excluding all
technical employees, business office clerical
employees, managerial employees, registered
nurses, licensed practical nurses, and all other
professional employees, guards and supervisors
as defined in the Act
PRINCETON MEMORIAL HOSPITAL
D/B/A PRINCETON HEALTH CARE
CENTER