Sierra Vista Hospital, Inc.

National Labor Relations Board - Board Decisions

Apr 22, 1977

229 N.L.R.B. 232 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sierra Vista Hospital, Inc. and California Nurses'
Association, affiliated with the American Nurses'
Association. Case 31 -CA-5750
April 22, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
WALTHER
Upon a charge filed on November 28, 1975, by
California Nurses' Association, affiliated with the
American Nurses' Association, herein called the
Union, and duly served on Sierra Vista Hospital,
Inc., herein called Respondent, the General Counsel
of the National Labor Relations Board, by the
Acting Regional Director for Region 31, issued a
complaint and notice of hearing on October 14, 1976,
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 September 12,
1975, following a Board election in Case 31-RC-
3166 the Union was duly certified as the exclusive
collective-bargaining representative of Respondent's
employees in the unit found appropriate; I and that,
commencing on or about October 2, 1975, and at all
times thereafter, Respondent has refused, and con-
tinues to date to refuse, to bargain collectively with
the Union as the exclusive bargaining representative,
although the Union has requested and is requesting it
to do so. On October 26, 1976, Respondent filed its
answer to the complaint admitting in part, and
denying in part, the allegations in the complaint.
On February 7, 1977, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on February 25,
1977, 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. Respon-
dent thereafter filed a response to Notice To Show
Cause in opposition to the Motion for Summary
Judgment.
Official notice is taken of the record in the representation proceedings,
Case 31-RC-3166, as the term "record" is defined in Secs. 102.68 and
102.6
9
(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 (C.A. 4,
1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26
229 NLRB No. 35
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 response to the
Notice To Show Cause, Respondent argues, in
substance, that (1) the Union is not a bona fide labor
organization since it is subject to the influence,
domination, and control of supervisors and (2) a unit
limited to registered nurses, excluding all other
professional employees, is inappropriate. The Gener-
al Counsel asserts that, as the issues raised by
Respondent have been fully litigated in the underly-
ing representation case, there are no issues of fact
litigable herein. We agree with the General Counsel.
Review of the record herein, including that in Case
31-RC-3166, discloses that, at the hearing in the
representation proceeding, the parties litigated the
issues of the Union's status as a bona fide labor
organization and of the appropriateness of a unit of
registered nurses and filed posthearing supporting
briefs. In its brief, Respondent also requested the
Board to reconsider its decision and rationale in
Mercy2 and its relevance to Respondent. On August
8, 1975, the Regional Director issued a Decision and
Direction of Election in which he found, contrary to
Respondent, that (1) the Union was not subject to
the influence, domination, and control of supervisors
but was a bona fide labor organization, (2) a unit
limited to all registered nurses sought by the Union
was appropriate although a unit of all professional
employees was also appropriate, and (3) the question
of reconsideration of the Mercy decision should be
directed to the Board. Respondent filed a timely
request for review, resubmitting its posthearing brief.
In its telegram of September 9, 1975, the Board
denied the request for review on the ground that it
raised no substantial issues warranting review, but
added the caveat that, if the Union were certified and
did not delegate its authority to a local autonomous
chapter controlled by nonsupervisory employees, a
motion to revoke certification would be entertained.
The Union won the election conducted on Septem-
ber 4, 1975, and thereafter on September 12, 1975,
the Regional Director, in the absence of any
objections, certified the Union as the exclusive
(C.A. 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va., 1967);
Follerr Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec.
9(d) of the N LRA, as amended.
2 Mercy Hospitals of Sacramento, Inc., 217 NLRB 765 (1975).
232
SIERRA VISTA HOSPITAL
collective-bargaining representative of the employees
in the appropriate registered nurses' unit.
Following bargaining requests by the Union,
Respondent, on October 29, 1975, filed with the
Board a motion to revoke certification, with a
supporting brief, alleging that the Union failed to
delegate its bargaining authority to a local autono-
mous chapter controlled by nonsupervisory employ-
ees. The Union filed a brief in opposition to the
motion. On January 30, 1976, the Board, having
concluded that Respondent's motion raised substan-
tial issues which could best be resolved by a hearing,
remanded the case to the Regional Director for the
purpose of adducing further evidence with respect to
the issues raised by the motion, particularly with
respect to a definition of the bargaining process and
to the degree of participation of supervisory nurses in
the bargaining process.3 Thereafter, a hearing was
held on March 29 and 30, 1976, before a Hearing
Officer who, pursuant to the Board's direction,
transferred the entire record to the Board for final
determination. Subsequently, Respondent filed a
supplemental brief in support of its motion. On
August 31, 1976, the Board issued a Decision and
Order (225 NLRB 1086) in which it denied Respon-
dent's motion to revoke certification, finding that the
Union had "effectively delegated its collective-bar-
gaining authority, which it acquired by virtue of the
Board's certification here, to an autonomous local
unit of nonsupervisory registered nurses, and that
said local is properly exercising this authority on its
own behalf."
It thus appears that Respondent is attempting to
raise in the instant unfair labor practice proceeding
matters which were raised and resolved in the
underlying representation case.
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. 4
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. We shall, accordingly, grant the Motion
for Summary Judgment.
3 Member Jenkins, dissenting, would have denied the motion.
4 See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board. Secs. 102.67(f) and 102.69(c).
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is a California corporation with an
office and principal place of business in San Luis
Obispo, California, where it is engaged in the
operation of an acute general hospital. Respondent,
in the course of its business operations, annually
purchases and receives goods or services valued in
excess of $5,000 directly from suppliers located
outside the State of California 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 will effectuate the policies of the Act to assert
jurisdiction herein.
11. THE LABOR ORGANIZATION INVOLVED
California Nurses' Association, affiliated with the
American Nurses' Association, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
1. 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 registered nurses; excluding all other
employees, office clerical employees, guards and
supervisors as defined in the Act.
2. The certification
On September 4, 1975, 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 31, designated the Union as their
representative for the purpose of collective bargain-
ing with Respondent. The Union was certified as the
collective-bargaining representative of the employees
in said unit on September 12, 1975, and the Union
continues to be such exclusive representative within
the meaning of Section 9(a) of the Act.
233
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about October 2, 1975, and
September 7, 1976, and at all times thereafter, the
Union has requested Respondent to bargain collec-
tively with it as the exclusive collective-bargaining
representative of all the employees in the above-
described unit. Commencing on or about October 2,
1975, and continuing at all times thereafter to date,
Respondent has refused, and continues to refuse, to
recognize and bargain with the Union as the
exclusive representative for collective bargaining of
all employees in said unit.
Accordingly, we find that Respondent has, since
October 2, 1975, and at all times thereafter, refused
to bargain collectively with the Union as the
exclusive representative of the employees in the
appropriate unit, and that, by such refusal, Respon-
dent 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 opera-
tions 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 com-
merce.
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
appropriate 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 certifica-
tion as beginning on the date Respondent commenc-
es to bargain in good faith with the Union as the
recognized bargaining representative in the appropri-
ate 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
(C.A. 5, 1964), cert. denied 379 U.S. 817 (1964);
Burnett Construction Company, 149 NLRB 1419, 1421
(1964), enfd. 350 F.2d 57 (C.A. 10, 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Sierra Vista Hospital, Inc., is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. California Nurses' Association, affiliated with
the American Nurses' Association, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
3. All registered nurses; excluding all other
employees, office clerical employees, guards and
supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. Since September 12, 1975, the above-named
labor organization has been and now is the certified
and exclusive representative of all employees in the
aforesaid appropriate unit for the purpose of collec-
tive bargaining within the meaning of Section 9(a) of
the Act.
5. By refusing on or about October 2, 1975, and
at all times thereafter, to bargain collectively with the
above-named labor organization 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, Respon-
dent has interfered with, restrained, and coerced, and
is interfering with, restraining, and coercing, employ-
ees 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)(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 Respondent
Sierra Vista Hospital, Inc., San Luis Obispo, Califor-
nia, 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 California Nurses'
Association, affiliated with the American Nurses'
Association, as the exclusive bargaining representa-
tive of its employees in the following appropriate
unit:
234
SIERRA VISTA HOSPITAL
All registered nurses; excluding all other
employees, office clerical employees, guards and
supervisors as defined in the Act.
(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 San Luis Obispo, California, Acute
General Hospital, copies of the attached notice
marked "Appendix." 5 Copies of said notice, on
forms provided by the Regional Director for Region
31 after being duly signed by Respondent's represen-
tative, 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 31, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
5 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 Califor-
nia Nurses' Association, affiliated with the Amer-
ican Nurses' Association, as the exclusive repre-
sentative 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 Union, 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 registered nurses; excluding all other
employees, office clerical employees, guards
and supervisors as defined in the Act.
SIERRA VISTA HOSPITAL,
INC.
235