St. John River District Hospital

National Labor Relations Board - Board Decisions

Dec 29, 2016

365 NLRB No. 12 (N.L.R.B. 2016)

365 NLRB No. 12
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
St. John River District Hospital and Local 324, Inter-
national Union of Operating Engineers (IUOE),
AFL-CIO. Case 07–CA–183327
December 29, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND MCFERRAN
This is a refusal-to-bargain case in which the Re-
spondent is contesting the Union’s certification as bar-
gaining representative in the underlying representation
proceeding. Pursuant to a charge filed on August 30,
2016,1 by Local 324, International Union of Operating
Engineers (IUOE), AFL–CIO (the Union), the General
Counsel issued the complaint on September 23, alleging
that St. John River District Hospital (the Respondent) has
violated Section 8(a)(5) and (1) of the Act by refusing
the Union’s request to recognize and bargain following
the Union’s certification in Case 07–RC–170700. (Offi-
cial notice is taken of the record in the representation
proceeding as defined in the Board’s Rules and Regula-
tions, Secs. 102.68 and 102.69(d). Frontier Hotel, 265
NLRB 343 (1982).) The Respondent filed an answer
admitting in part and denying in part the allegations in
the complaint, and asserting affirmative defenses.
On October 13, the General Counsel filed a Motion for
Summary Judgment. On October 14, 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.
Ruling on Motion for Summary Judgment
The Respondent admits its refusal to bargain, but con-
tests the validity of the certification on the basis of its
contention, raised and rejected in the underlying repre-
sentation proceeding, that the Regional Director improp-
erly found that the bargaining unit did not include guards
and found the certified bargaining unit appropriate. The
Respondent also advances two procedural arguments in
its answer to the complaint. First, the Respondent main-
tains that the Regional Director erroneously directed an
election in this case less than 14 days after the Decision
and Direction of Election, contrary to the Board’s Rules
and Regulations. As the Respondent did not raise this
argument in its Request for Review in the representation
proceeding, it is not properly litigable in this proceeding.
The Respondent also disputes the asserted date of service

1 All dates are 2016 unless otherwise indicated.
of the complaint and argues that the complaint errone-
ously states that its answer was due on October 7, when
it was due on October 17. However, this argument does
not raise an issue warranting a hearing because the Re-
spondent in any event timely filed its answer on October
6.
All representation issues raised by the Respondent
were or could have been litigated in the underlying repre-
sentation proceeding. The Respondent does not offer to
adduce at a hearing any newly discovered and previously
unavailable evidence, nor does it allege any special cir-
cumstances 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 un-
fair labor practice proceeding. See Pittsburgh Plate
Glass Co. v. NLRB, 313 U.S. 146, 162 (1941).
Accordingly, we grant the Motion for Summary Judg-
ment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent has been a non-
profit corporation with an office and facility in East Chi-
na Township, Michigan (the East China facility), and has
been engaged in the operation of an acute-care hospital.
In conducting its operations during the calendar year
ending December 31, 2015, the Respondent derived
gross revenues in excess of $250,000 and purchased and
received at its East China facility goods and supplies
valued in excess of $5000 directly from points outside
the State of Michigan.
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 a healthcare institution 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
At all material times, Joanne Tuscany held the position
of the Respondent’s Senior Director, Human Resources,
and has been a supervisor of the Respondent within the
meaning of Section 2(11) of the Act and an agent of the
Respondent within the meaning of Section 2(13) of the
Act.
Following a representation election held on April 19,
the Union was certified on April 27 as the exclusive col-
lective-bargaining representative of the employees in the
following appropriate unit (the unit):
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
All full-time and regular part-time maintenance em-
ployees, including electricians, employed by the Em-
ployer at its facility located at 4100 River Road, East
China Township, Michigan; but excluding office cleri-
cal employees, and guards and supervisors as defined
in the Act.
The Union continues to be the exclusive collective-
bargaining representative of the unit employees under
Section 9(a) of the Act.
B. Refusal to Bargain
About June 16, by letter, and about August 12, 22, and
29, by email, the Union requested the Respondent to rec-
ognize and bargain with it as the exclusive collective-
bargaining representative of the unit. Since about June
16, the Respondent has failed and refused to do so.
We find that the Respondent’s conduct constitutes an
unlawful failure and refusal to recognize and bargain
with the Union in violation of Section 8(a)(5) and (1) of
the Act.
CONCLUSION OF LAW
By failing and refusing, since June 16, to recognize
and bargain with the Union as the exclusive collective-
bargaining representative of the employees in the appro-
priate unit, the Respondent has engaged in unfair labor
practices affecting commerce within the meaning of Sec-
tion 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 initial period of the certifi-
cation as beginning the date the Respondent begins to
bargain in good faith with the Union. Mar-Jac Poultry
Co., 136 NLRB 785 (1962); accord Burnett Construction
Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57
(10th Cir. 1965); Lamar Hotel, 140 NLRB 226, 229
(1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied
379 U.S. 817 (1964).
ORDER
The National Labor Relations Board orders that the
Respondent, St. John River District Hospital, East China
Township, Michigan, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
Local 324, International Union of Operating Engineers
(IUOE), AFL–CIO, as the exclusive collective-
bargaining representative of the employees in the bar-
gaining unit.
(b) In any like or related manner interfering with, re-
straining, 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, bargain with the Union as the exclu-
sive collective-bargaining representative of the employ-
ees in the following appropriate unit on terms and condi-
tions of employment and, if an understanding is reached,
embody the understanding in a signed agreement:
All full-time and regular part-time maintenance em-
ployees, including electricians, employed by the Em-
ployer at its facility located at 4100 River Road, East
China Township, Michigan; but excluding office cleri-
cal employees, and guards and supervisors as defined
in the Act.
(b) Within 14 days after service by the Region, post at
its facility in East China Township, Michigan, copies of
the attached notice marked “Appendix.”2 Copies of the
notice, on forms provided by the Regional Director for
Region 7, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous
places, including all places where notices to employees
are customarily posted. In addition to physical posting of
paper notices, notices shall be distributed electronically,
such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent
customarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material. If the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since June 16, 2016.
(d) Within 21 days after service by the Region, file
with the Regional Director for Region 7 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.

2 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
ST. JOHN RIVER DISTRICT HOSPITAL 3
Dated, Washington, D.C. December 29, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Philip A. Miscimarra, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
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 Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT fail and refuse to recognize and bargain
with Local 324, International Union of Operating Engi-
neers (IUOE), AFL–CIO, as the exclusive collective-
bargaining representative of our employees in the bar-
gaining unit.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, on request, bargain with the Union and put
in in writing and sign any agreement reached on terms
and conditions of employment for our employees in the
following appropriate unit:
All full-time and regular part-time maintenance em-
ployees, including electricians, employed by us at our
facility located at 4100 River Road, East China Town-
ship, Michigan; but excluding office clerical employ-
ees, and guards and supervisors as defined in the Act.
ST. JOHN RIVER DISTRICT HOSPITAL
The Board’s decision can be found at
www.nlrb.gov/case/07-CA-183327 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273-1940.