St. Anthony Hospital Systems

National Labor Relations Board - Board Decisions

Jan 22, 1987

282 N.L.R.B. 790 (N.L.R.B. 1987)

790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
St. Anthony Hospital Systems and St. Anthony Fed-
eration of Nurses and Health Professionals
AFT/FNHP, CFT, AFL-CIO. Case 27-CA-
6947
22 January 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
Upon a charge filed by the Union 3 October
1980, the General Counsel of the National Labor
Relations Board issued a complaint 22 October
1980 against St. Anthony Hospital Systems, the Re-
spondent, alleging that it has violated Section
8(a)(5) and (1) of the National Labor Relations
Act.
The complaint alleges that on 21 August 1980,
following a Board election in Case 27-RC-5975,
the Union was certified as the exclusive collective-
bargaining representative of the Respondent's em-
ployees in the unit found appropriate. (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), amended
Sept. 9, 1981, 46 Fed.Reg. 45922 (1981); Frontier
Hotel, 265 NLRB 343 (1982).) The complaint fur-
ther alleges that since 2 October 1980 the Respond-
ent has refused to bargain with the Union. On 30
October 1980, the Respondent filed its answer ad-
mitting in part and denying in part the allegations
in the complaint.
On 25 January 1982 the General Counsel filed a
Motion for Summary Judgment. On 2 February
1982 the Board issued an order transferring the
proceeding to the Board and a Notice to Show
Cause why the motion should not be granted. The
Respondent and the Charging Party filed re-
sponses.
On 24 August 1984 the Board denied the Motion
for Summary Judgment and remanded this pro-
ceeding to the Regional Director for further con-
sideration consistent with the Decision and Order
in St. Francis Hospital, 271 NLRB 948 (1984). On 5
November 1985 the Regional Director issued an
order reopening the record and notice of hearing.
On 20 March 1986 the Regional Director issued a
Supplemental Decision and Order reaffirming his
previous Decision and Order.
On 16 April 1986 the Respondent filed a request
for review of the Regional Director's Supplemental
Decision and Order. On 8 May 1986 the Board
denied the Respondent's request for review.
About 18 June 1986 the Respondent refused to
bargain with the Union. On 10 July 1986 the Gen-
eral Counsel filed a Motion for Summary Judg-
282 NLRB No. 116
ment. On 16 July 1986 the Board issued an order
transferring the proceeding to the Board and a
Notice to Show Cause why the motion should not
be granted. The Respondent filed a response.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
Ruling on Motion for Summary Judgment
The Respondent's 30 October 1980 answer
admits its refusal to bargain but denies that such
conduct is an unfair labor practice. The General
Counsel argues that all material issues have been
previously decided. We agree with the General
Counsel.
The record, including the record in Case 27-
RC-5975, reveals that an election was held on 16
April 1980 pursuant to a directed election. The
tally of ballots shows that of approximately 327 eli-
gible voters, 147 cast valid ballots for and 129
against the Union; there were 12 challenged bal-
lots, an insufficient number to affect the results of
the election. After conducting a hearing on the Re-
spondent's objections, the Regional Director on 2
June 1980 issued his report recommending that the
objections be overruled and that the Union be cer-
tified. The Respondent filed exceptions. On 21
August 1980 the Board adopted the recommenda-
tion and certified the Union as the exclusive bar-
gaining representative of the employees in the
unit. I
Since about 1 September 1980 the Union has re-
quested the Respondent to bargain. Since about 2
October 1980 the Respondent refused to bargain
collectively with the Union and has failed and re-
fused to meet and bargain with the Union concern-
ing wages, hours, and other terms and conditions
of employment.
It is well settled that in the absence of newly dis-
covered and 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 that were or could have been
litigated in a prior representation proceeding. See
Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146,
162 (1941); Secs. 102.67(f) and 102.69(c) of the
Board's Rules and Regulations.
All issues raised by the Respondent were or
could have been litigated in the prior representa-
tion proceeding. The Respondent does not offer to
adduce at a hearing any newly discovered and pre-
viously unavailable evidence, nor does it allege any
1 In a Supplemental Decision and Order issued on 20 March 1986 the
Regional Director reaffirmed the 1980 certification. The Respondent filed
a request for review of this Supplemental Decision and Order which was
denied by the Board on 8 May 1986.
ST. ANTHONY HOSPITAL SYSTEMS
special circumstances that would require the-Board
to reexamine the decision made in the representa-
tion proceeding.2 We therefore find that the Re-
spondent has not raised any issue that is properly
litigable in this unfair labor practice proceeding.
Accordingly - we grant the Motion for Summary
Judgment. -
On the entire record,- the Board makes the fol-
lowing'
FINDINGS OF FACT
1. JURISDICTION
Respondent is a Colorado corporation engaged
in the operation of an 'acute care hospital system,
including two, facilities in the -Denver, Colorado
metropolitan area, where it annually purchases and
receives goods and materials valued in excess of
$50,000 directly from sources located outside the
State of Colorado, and annually derives gross reve-
nues in excess of $500,000. We find that the Re-
spondent 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 16 April 1980, the
Union was certified as the collective-bargaining
representative of the employees in the following
appropriate unit:
All full-time and regular part-time technical
employees employed by the Employer at its
St. Anthony Central and St. Anthony North
facilities, including licensed practical nurses,
critical care licensed practical nurses, schedul-
ing nurses (LPN), critical care technicians
(EMT), critical - care technicians, dental assist-
ants, medical technicians, respiratory rehabili -
tation technicians, surgical technicians, ortho-
2 The Respondent argues that the Board has issued two conflicting de-
cisions regarding the status of the radiology technologists. We disagree.
In 1980, after a hearing, the Regional Director determined in the under-
lying representation case that the radiology technologists were technical
employees and eligible to vote in the election. The Respondent 's request
for review on this and other issues was denied. Although in September
1985 the Board allowed the radiology technologists to vote subject to
challenge in the professional unit election in Case 27-RC-5914, which
the Union lost, the Board 's administrative action did not constitute a de-
termination that the radiology technologists were professional employees.
Further, as noted above, in March 1986 the Regional Director reaffirmed
the Union's 1980 certification in the underlying representation case
herein. The Respondent's request for review, which did not assert any
new evidence as to the alleged professional status of the radiology tech-
nologists, was denied Thus, the Board has never determined that the ra-
diology technologists are professionals , and the Regional Director's 1980
determination that the radiology technologists are technicals remains
valid.
791
Vedic technicians, laboratory assistants (phle-
botomist), EKG technicians, pharmacy techni-
cians, pulmonary function technicians, instru-
ment technicians, orthopedic cast technicians,
gastroenterology technicians, radiology tech-
nologists , EEG technicians, respiratory ther-
apy technician I, respiratory therapy techni-
cian II, respiratory therapy technician III, reg-
istered respiratory therapist I, registered respi-
ratory therapist II, registered respiratory ther-
apist III (clinician), graduate respiratory thera-
-pist,, ophthalmology technologist, and hstolo-
gy technologist; but excluding confidential em-
ployees, business office clerical employees,
office clerical employees, guards, managers,
supervisors as defined in the Act, and all other
employees.
The Union continues to be the exclusive represent-
ative under Section 9(a) of the Act.
B. Refusal to Bargain
Since 1 September 1980, the Union has requested
the Respondent to bargain, and since 2 October
1980, 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.
CONCLUSIONS OF LAW
By refusing on and after 2 October 1980 to bar-
gain with the Union as the exclusive collective-bar-
gaining representative of employees in the appro-
priate 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
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 NTLRB
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).
792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
The National Labor Relations Board orders that
the Respondent, St. Anthony Hospital Systems,
Denver, Colorado, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with St. Anthony Feder-
ation of Nurses and Health Professionals
AFT/FNHP, CFT, 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 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 technical
employees employed by the Employer at its
St. Anthony Central and St. Anthony North
facilities, including licensed practical nurses,
critical care licensed practical nurses, schedul-
ing nurses (LPN), critical care technicians
(EMT), critical care technicians, dental assist-
ants, medical technicians, respiratory rehabili-
tation technicians, surgical technicians, ortho-
pedic technicians, laboratory assistants (phle-
botomist), EKG technicians, pharmacy techni-
cians, pulmonary function technicians, instru-
ment technicians, orthopedic cast technicians,
gastroenterology technicians, radiology 'tech-
nologists, EEG technicians, respiratory ther-
apy techician I, respiratory therapy technician
II, respiratory therapy technician III, regis-
tered respiratory therapist I, registered respira-
tory therapist, II, registered respiratory thera-
pist III (clinician), graduate respiratory thera-
pist, ophthalmology technologist, and histolo-
gy technologist; but excluding confidential em-
ployees, business office clerical employees,
office clerical employees, guards, managers,
supervisors as defined in the Act, and all other
employees.
(b) Post at its facilities in Denver, Colorado,
copies of the attached notice marked "Appendix."3
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."
Copies of the notice, on forms provided by the Re-
gional Director for Region 27, after being signed
by the Respondent's authorized representative,
shall be posted by the Respondent immediately
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 DOTSON, dissenting.
In my view a hearing is required as to the cor-
rect unit placement of the radiology technologists.
Therefore, I would deny the General Counsel's
Motion for Summary Judgment.
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 St. Antho-
ny Federation of Nurses and Health Professionals
AFT/FNHP, CFT, 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 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 technical
employees employed by the Employer at its
St. Anthony Central and St . Anthony North
facilities, including licensed practical nurses,
critical care licensed practical nurses , schedul-
ing nurses (LPN), critical care technicians
(EMT), critical care technicians , dental assist-
ants, medical technicians, respiratory rehabili-
tation technicians, surgical technicians, ortho-
pedic technicians , laboratory assistants (phle-
botomist), EKG technicians , pharmacy techni-
cians, pulmonary function technicians, instru-
ment technicians , orthopedic cast technicians,
ST. ANTHONY HOSPITAL SYSTEMS
gastroenterology technicians , radiology, tech-
nologists, EEG technicians,' respiratory ther-
apy technician I, respiratory therapy techni-
cian II, respiratory therapy technician III, reg-
istered respiratory 'therapist I, registered respi-
ratory therapist II, registered respiratory ther-
apist III (clinician), graduate respiratory thera-
pist, ophthalmology technologist, and histolo-
793
gy technologist; but excluding confidential em=
ployees, business office clerical employees,
office clerical employees, guards, managers,
supervisors as defined in the Act, and all other
employees.
ST. ANTHONY HOSPITAL SYSTEMS