Spectrum Health Care

National Labor Relations Board - Board Decisions

Mar 26, 1998

325 N.L.R.B. 84 (N.L.R.B. 1998)

1
325 NLRB No. 84
1 The Respondent’s Cross Motion for Summary Judgment is de-
nied as the record evidence establishes the General Counsel’s allega-
tions, and thus, summary judgment is appropriate.
2 Member Brame did not participate in the underlying representa-
tion case. He joins his colleagues in granting summary judgment on
the terms that the Respondent has not raised anything that is prop-
erly litigable before the Board in this test-of-certification case.
NOTICE: This opinion is subject to formal revision before publication
in the Board volumes of NLRB decisions. Readers are requested to
notify the Executive Secretary, National Labor Relations Board,
Washington, D.C. 20570, of any typographical or other formal er-
rors so that corrections can be included in the bound volumes.
Spectrum Healthcare Services, Inc. d/b/a Correc-
tional Medical Services and American Federa-
tion of State, County and Municipal Employees
(AFSCME), Council 31, AFL–CIO. Case 33–
CA–12535
March 26, 1998
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX AND
BRAME
Pursuant to a charge filed on January 22, 1998, the
General Counsel of the National Labor Relations
Board issued a complaint and notice of hearing on
February 9, 1998, 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 bar-
gain following the Union’s certification in Case 33–
RC–4199. (Official notice is taken of the ‘‘record’’ in
the representation proceeding as defined in the Board’s
Rules and Regulations, Secs. 102.68 and 102.69(g);
Frontier Hotel, 265 NLRB 343 (1982).) The Respond-
ent filed an answer, with affirmative defenses, admit-
ting in part and denying in part the allegations in the
complaint.
On February 25, 1998, the General Counsel filed a
Motion for Summary Judgment. On February 27, 1998,
the Board issued an order transferring the proceeding
to the Board and a Notice to Show Cause why the mo-
tion should not be granted. The Respondent filed a re-
sponse and Cross Motion for Summary Judgment.
The National Labor Relations Board has delegated
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 basis of the Board’s jurisdictional determination in
the representation proceeding. The Respondent alleges
as affirmative defenses that the Board improperly as-
serted jurisdiction over the health care unit, because
the individuals responsible for administering, super-
vising, managing, and directing the unit and its em-
ployees are ‘‘public officials employed by the Illinois
Department of Corrections, and serve at the pleasure of
public officials.’’
All representation issues raised by the Respondent
were or could have been litigated in the prior represen-
tation proceeding. The Respondent does not offer to
adduce at a hearing any newly discovered and pre-
viously unavailable evidence, nor does it allege any
special circumstances that would require the Board to
reexamine the decision made in the representation pro-
ceeding. We therefore find that the Respondent has not
raised any representation issue that is properly litigable
in this unfair labor practice proceeding.1 See Pitts-
burgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162
(1941). Accordingly, we grant the Motion for Sum-
mary Judgment.2
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a Missouri
corporation, with an office and a place of business lo-
cated, inter alia, in Sheridan, Illinois, has been engaged
in the business of providing medical and health care
services to inmates at correctional facilities.
During the past calendar year (1997), the Respond-
ent, in conducting its business operations, derived
gross revenues in excess of $250,000 and during the
same period of time, the Respondent purchased and re-
ceived at its Sheridan, Illinois facility goods valued in
excess of $50,000 directly from points outside the
State of Illinois.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6),
and (7) of the Act and has been a health care institu-
tion within the meaning of Section 2(14) 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 November 5, 1997, the
Union was certified on November 13, 1997, as the ex-
clusive collective-bargaining representative of the em-
ployees in the following appropriate unit:
All full-time and regular part-time employees em-
ployed by the Employer at the Sheridan Correc-
tional Center in Sheridan, Illinois including all
registered nurses, clinical psychologists, licensed
practical nurses, x-ray technicians, dental assist-
ants, and staff assistants; but excluding phar-
macists, confidential employees, office clerical
employees, guards and supervisors as defined in
the Act.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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
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.’’
The Union continues to be the exclusive representative
under Section 9(a) of the Act.
B. Refusal to Bargain
At all times since December 15, 1997, the Union
has requested, and is requesting, the Respondent to
meet and bargain and, since on or about December 19,
1997, the Respondent has failed and refused. We find
that this failure and refusal constitutes an unlawful re-
fusal to meet and bargain in violation of Section
8(a)(5) and (1) of the Act.
CONCLUSION OF LAW
By failing and refusing on and after December 19,
1997, to meet and bargain with the Union as the exclu-
sive collective-bargaining representative of employees
in the appropriate unit, the Respondent has engaged in
unfair labor practices affecting commerce 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 Sec-
tion 8(a)(5) and (1) of the Act, we shall order it to
cease and desist, to meet and bargain on request with
the Union, and, if an understanding is reached, to em-
body the understanding in a signed agreement.
To ensure that the employees are accorded the serv-
ices of their selected bargaining agent for the period
provided by the law, we shall construe the initial pe-
riod of the certification as beginning the date the Re-
spondent 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, Spectrum Healthcare Services, Inc., d/b/a
Correctional Medical Services, Sheridan, Illinois, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to meet and bargain with
American Federation of State, County and Municipal
Employees (AFSCME), Council 31, AFL–CIO as the
exclusive bargaining representative of the employees in
the bargaining unit.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, meet and bargain with the Union as
the exclusive representative of the employees in the
following appropriate unit on terms and conditions of
employment and, if an understanding is reached, em-
body the understanding in a signed agreement:
All full-time and regular part-time employees em-
ployed by the Employer at the Sheridan Correc-
tional Center in Sheridan, Illinois including all
registered nurses, clinical psychologists, licensed
practical nurses, x-ray technicians, dental assist-
ants, and staff assistants; but excluding phar-
macists, confidential employees, office clerical
employees, guards and supervisors as defined in
the Act.
(b) Within 14 days after service by the Region, post
at its facility in Sheridan, Illinois, copies of the at-
tached notice marked ‘‘Appendix.’’3 Copies of the no-
tice, on forms provided by the Regional Director for
Region 33, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Re-
spondent 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 no-
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of
these proceedings, the Respondent has gone out of
business or closed the facility involved in these pro-
ceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current
employees and former employees employed by the Re-
spondent at any time since January 22, 1998.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a
responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to
comply.
Dated, Washington, D.C. March 26, 1998
llllllllllllllllll
William B. Gould IV, Chairman
llllllllllllllllll
Sarah M. Fox, Member
llllllllllllllllll
J. Robert Brame III, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
3CORRECTIONAL MEDICAL SERVICES
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 or-
dered us to post and abide by this notice.
WE WILL NOT refuse to bargain with American Fed-
eration of State, County and Municipal Employees
(AFSCME), Council 31, AFL–CIO as the exclusive
representative of the employees in the bargaining unit.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL, on request, meet and 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 employees em-
ployed by us at our Sheridan Correctional Center
in Sheridan, Illinois including all registered
nurses, clinical psychologists, licensed practical
nurses, x-ray technicians, dental assistants, and
staff assistants; but excluding pharmacists, con-
fidential employees, office clerical employees,
guards and supervisors as defined in the Act.
SPECTRUM HEALTHCARE SERVICES, INC.
D/B/A CORRECTIONAL MEDICAL SERV-
ICES