St. Agnes Medical Center

National Labor Relations Board - Board Decisions

Feb 14, 1980

247 N.L.R.B. 1101 (N.L.R.B. 1980)

ST. AGNES MEDICAL CENTER
St. Agnes Medical Center and International Brother-
hood of Firemen and Oilers, Local 473. Case 4-
CA-10460
February 14, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
Upon a charge filed on August 30, 1979, by
International Brotherhood of Firemen and Oilers,
Local 473, herein called the Union, and duly served on
St. Agnes Medical Center, herein called Respondent,
the General Counsel of the National Labor Relations
Board, by the Regional Director for Region 4, issued a
complaint and notice of hearing on October 12, 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 and 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 August 13,
1979, following a Board election in Case 4-RC-13712
the Union was duly certified as the exclusive collec-
tive-bargaining representative of Respondent's em-
ployees in the unit found appropriate;' and that,
commencing on or about August 23, 1979, 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 23, 1979, Respondent filed its
answer to the complaint admitting in part, and
denying in part, the allegations in the complaint.
On November 13, 1979, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on November 27,
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 thereaf-
ter filed a response to Notice To Show Cause.
Pursuant to the provision 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.
' Official notice is taken of the record in the representation proceeding, Case
4-RC-13712, 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
Electrosystems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (4th Cir.
247 NLRB No. 155
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 admits the
Union's request for bargaining and its refusal to
bargain, but attacks the Union's certification based on
its contention, raised in the underlying representation
proceeding, that the certified unit is not appropriate.
Respondent contends, in essence, that an appropriate
unit should include Respondent's service employees in
addition to the maintenance and engineering employ-
ees presently included in the certified unit.
Review of the record herein, including the record in
Case 4-RC-13712, reveals that the Acting Regional
Director for Region 4 issued a Decision and Direction
of Election for a unit of Respondent's maintenance
and engineering department employees on July 5,
1979. Thereafter, Respondent filed with the Board a
request for review of the Acting Regional Director's
Decision and Direction of Election requesting that the
Board review the Acting Regional Director's determi-
nation of the appropriateness of the unit sought or
reconsider Board precedent applicable to the unit
determination in light of the opinion of the United
States Court of Appeals for the Third Circuit in St.
Vincent's Hospital v. N.L.R.B., 567 F.2d 588 (3d Cir.
1977). On July 25, 1979, the Board by telegraphic
order denied Respondent's request for review, having
duly considered both the Acting Regional Director's
Decision and Direction of Election and the request for
review and brief in support thereof. Accordingly, on
August 3, 1979, an election was conducted in the unit
found appropriate which resulted in a vote of 16 to 3
in favor of the Union, with no ballots challenged. On
August 13, 1979, the Regional Director for Region 4
certified the Union as the exclusive bargaining repre-
sentative of the employees in the unit found appropri-
ate.
As noted, in its answer to the complaint and its
opposition to the Motion for Summary Judgment,
Respondent does not deny the essential elements of its
refusal to bargain, but claims only that the unit found
appropriate in the representation proceeding is, in
fact, an inappropriate unit. It thus appears that
Respondent is attempting in this proceeding to reliti-
gate issues fully litigated and finally determined in the
representation proceeding.
It is well settled that in the absence of newly
discovered or previously unavailable evidence or
1968); Golden Age Beverage Co.. 167 NLRB 15 (1967), enfd. 415 F. 2d 26
(5th Cir. 1969); Iniertype Co. v. Pennelo. 269 F. Supp. 573 (D.C.Va 1957);
Follerr Corp.. 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968); Sec.
9(d) of the NLRA, as amended.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
special circumstances a respondent in a proceeding
alleging a violation of Section 8(a)(5) is not entitled to
relitigage issues which were or could have been
litigated in a prior representation proceeding.2
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
1. THE BUSINESS OF RESPONDENT
Respondent is engaged as a health care institution
in the operation of a hospital providing inpatient and
outpatient medical and professional care services.
During the 12-month period preceding the issuance of
the complaint, a representative period, Respondent, in
the course and conduct of its operations, received
gross revenues in excess of $250,000 and purchased
and received at its Philadelphia, Pennsylvania, facility
products, goods, and materials valued in excess of
$50,000 directly from points outside the Common-
wealth of Pennsylvania.
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.
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Firemen and Oilers,
Local 473, is a labor organization within the meaning
of Section 2(5) of the Act.
See Pittsburgh Plate Glass Cao v. N.L.R.B., 313 U.S. 146, 162 (1941); Rules
and Regulations of the Board, Secs. 102.67(0 and 102.69(c).
'To the extent that our decision herein may be in conflict with the opinion
of the United States Court of Appeals for the Third Circuit in Allegheny
I11I. 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 maintenance and engineering department
employees employed by St. Agnes Medical Center
at its Philadelphia, Pennsylvania, facility; but
excluding all other employees, office clericals,
guards and supervisors as defined in the Act.
2. The certification
On August 3, 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 4, designated the Union as their
representative for the purpose of collective bargaining
with Respondent. The Union was certified as the
collective-bargaining representative of the employees
in said unit on August 13, 1979, and the Union
continues 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 August 14, 1979, and at
all times thereafter, the Union has requested Respon-
dent to bargain collectively with it as the exclusive
collective-bargaining representative of all the employ-
ees in the above-described unit. Commencing on or
about August 23, 1979, and continuing at all times
thereafter to date, Respondent has refused, and
continues 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
August 23, 1979, 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, Respondent has
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the
Act.
General Hospital v. N.L.R.B.. 608 F.2d 965 (1979), setting aside 239 NLRB
872 (1978), we respectfully disagree with that decision and adhere to our view
until such time as the Supreme Court has passed on the matter.
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ST. AGNES MEDICAL CENTER
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the 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 Union 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 Union as the recognized
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 Construction
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. St. Agnes 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 473, is a labor organization within the meaning
of Section 2(5) of the Act.
3. All maintenance and engineering department
employees employed by St. Agnes Medical Center at
its Philadelphia, Pennsylvania, facility; but excluding
all other employees, office clericals, 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 August 13, 1979, the above-named labor
organization has been and now is 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 August 23, 1979, 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, 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,
St. Agnes Medical Center, Philadelphia, Pennsylvania,
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 473, as the exclusive
bargaining representative of its employees in the
following appropriate unit:
All maintenance and engineering department
employees employed by St. Agnes Medical Center
at its Philadelphia, Pennsylvania, facility; but
excluding all other employees, office clericals,
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 understand-
ing is reached, embody such understanding in a signed
agreement.
1103
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Post at its facility in Philadelphia, Pennsylvania,
copies of the attached notice marked "Appendix."4
Copies of said notice, on forms provided by the
Regional Director for Region 4, 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 4, 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 General Counsel's Motion for
Summary Judgement, I would dismiss the complaint
in its entirety on the ground that the petitioned-for
unit is inappropriate. See my dissent in Allegheny
General Hospital, 239 NLRB 872, 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 473, 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 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 maintenance and engineering department
employees employed by St. Agnes Medical
Center at its Philadelphia, Pennsylvania, facili-
ty; but excluding all other employees, office
clericals, guards and supervisors as defined in
the Act.
ST. AGNES MEDICAL CENTER
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