Taylor Hospital

National Labor Relations Board - Board Decisions

Apr 29, 1980

249 N.L.R.B. 137 (N.L.R.B. 1980)

TAYLOR HOSPITAL 137
Taylor Hospital and Local 1319, Laborers' Interna-
tional Union of North America, AFL-CIO-
CLC. Case 4-CA-7025
April 29, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND TRUESDALE
On December 17, 1979, Administrative Law
Judge Bruce C. Nasdor issued the attached Deci-
sion in this proceeding. Thereafter, Respondent
filed exceptions and a supporting brief, and the
General Counsel and Charging Party filed answer-
ing briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Taylor Hospi-
tal, Ridley Park, Pennsylvania, its officers, agents,
successors, and assigns, shall take the action set
forth in the said recommended Order.
DECISION
STATEMENT OF THE CASE
BRUCE C. NASDOR, Administrative Law Judge: This
proceeding under Section 10(b) of the National Labor
Relations Act, as amended, was heard pursuant to due
notice on March 19 and 20, 1979, at Philadelphia, Penn-
sylvania.
The charge in this matter was filed by Local 1319, La-
borers' International Union of North America, AFL-
CIO-CLC (hereinafter referred to as the Union), on Sep-
tember 23, 1974. The complaint and notice of hearing
issued on October 18, 1978. The single issue to be re-
solved is whether the National Labor Relations Board
should extend comity to the certification by the Pennsyl-
vania Labor Relations Board (hereinafter called PLRB)
of the Union, as representative of the employees of
Taylor Hospital (hereinafter called the Hospital or Re-
spondent) within the unit found appropriate by the
PLRB. Upon the entire record, including my observation
of the demeanor of the witnesses, and after due consider-
ation of the briefs filed by all parties, I make the follow-
ing:
249 NLRB No. 31
FINDINGS OF FACT
I. JURISDICTION
Respondent is, and has been at all times material
herein, a nonprofit corporation duly organized under,
and existing by virtue of, the laws of the Commonwealth
of Pennsylvania, and is engaged in providing medical
and hospital care to patients at its Chester Pike Division,
Ridley Park, Pennsylvania, facility. During the past year,
Respondent had gross revenues valued in excess of
$500,000, and purchased goods valued in excess of
$50,000 directly from outside the Commonwealth of
Pennsylvania.
Respondent is, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
It is admitted, and I find, that the Union is, and has
been at all times material herein, a labor organization
within the meaning of Section 2(5) of the Act.
III. THE FACTS
On October 15, 1973, the Union filed a petition for
representation with the PLRB, seeking a unit of all em-
ployees of the dietary department, maintenance depart-
ment, housekeeping department, central supply depart-
ment, orderly department, and nurses aides, excluding
office clerical employees, practical and registered nurses,
guards, professional employees, and supervisors within
the meaning of state law. A hearing was held before the
PLRB on November 29, 1973, where the parties execut-
ed a stipulation regarding the conduct of the election.
The stipulation provided that the election would be held
on January 17, 1974. Prior thereto, on November 23, Re-
spondent sent a list of employees on the payroll immedi-
ately preceding the date of the petition, and also listed
whom it considered supervisors. At the hearing on No-
vember 29, 1973, Respondent submitted the list of em-
ployees and supervisors to the PLRB and copies of same
were circulated among the parties. Philip Driver repre-
sented Respondent as its attorney in that proceeding. He
testified herein that the lists were subject to considerable
discussion at the November 29 hearing. Driver testified
that the Union did not agree that these were the only
employees, that is, the employees on the list, who would
be eligible to vote.
The election which was conducted on January 17,
1974, resulted in 48 votes being cast for the Union, 42
votes for no representative, and 17 challenged ballots be-
cause the names did not appear on the eligibility list. No
objections were filed to the election.
On February 4, 1974, the PLRB issued an order di-
recting the taking of testimony of the validity of the
challenged ballots. Pursuant thereto, the parties appeared
on March 1, 1974, and they were represented by counsel.
Respondent and the Union stipulated that seven of the
challenged ballots should be counted. Testimony was
taken on the eligibility of the remaining 10 individuals.
Respondent contended that these 10 individuals were su-
pervisors. On June 7, 1974, the PLRB issued findings of
TAYLOR HOSPITAL 7
138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fact, conclusions of law, and an order directing that chal-
lenges to nine of the voters be dismissed and that the
challenge of one voter be sustained. Therefore the PLRB
found that 16 of the 17 challenged voters were eligible to
vote and ordered that their ballots be opened. The
PLRB noted that the parties stipulated to the eligibility
of seven voters. The PLRB rejected Respondent's con-
tention, with the exception of one individual that the
challenged voters were supervisors.
On June 16, 1974, Respondent filed with the PLRB
"Exceptions of Employer To Order and Petition for
Opening of Hearing To Receive Evidence Not Previous-
ly Treated." It requested that the PLRB reopen the
hearing to take testimony on the issue of whether the
employees in issue could have been validly challenged,
in light of the stipulation and the board order and notice
of election.
On June 18, 1974, the ballots were opened, or "can-
vassed," resulting in 15 votes being cast in favor of the
Union and I vote cast for no representative. According-
ly, the results of the final tally were 63 votes for union
representation and 43 votes for no union representation.
On June 27, 1974, the PLRB issued a "Nisi Order of
Certification" certifying the Union as the exclusive rep-
resentative of the employees referred to supra.
On July 5, 1974, Respondent filed exceptions to the
PLRB's nisi order of certification, and on August 22,
1974, the PLRB issued its final order dismissing the ex-
ceptions filed by Respondent to the PLRB's nisi order
and making the nisi order of certification absolute and
final.
On August 28, 1974, the Union requested Respondent
to bargain. On September 3, 1974, Respondent refused to
bargain. 2
Although the document does not reflect the date, the
parties stipulated factually that on September 18, 1974,
Respondent filed a petition to set aside the order of the
Pennsylvania Labor Relations Board with the Court of
Common Pleas of Delaware County, Pennsylvania.
On September 23, 1974, the Union filed the charge
which gave rise to the instant case.
On January 2, 1975, then General Counsel, Peter G.
Nash, wrote to the common pleas court, stating that the
National Labor Relations Board had authorized him to
inform the court that further action on the Union's
charge would be held in abeyance until final disposition
I Respondent argued in its first exception that a hearing should have
been held for the purpose of determining whether the voters could have
been validly challenged. Respondent's second and third exceptions argue
that the election was in violation of the agreement and notice of election,
the reason being that Respondent and the "Union agreed that the list of
employees attached to the order as aforesaid was the complete list of em-
ployees eligible to vote." Respondent argued in its fourth and fifth excep-
tions that it did not campaign to voters and made no attempt to neutral-
ize their prounion activities or sentiments. Respondent argues in excep-
tion 6, its last exception, that it made the nine alleged supervisory em-
ployees privy to campaign planning sessions and delivered campaign lit-
erature to them prior to the publication of said literature, which had a
pervasive and invidious effect on the campaign efforts of Respondent.
Respondent states further that it was, thus, per se prejudiced by the pree-
lection procedures.
' On August 25, 1974, the hospital amendments to the National Labor
Relations Act were passed.
of state court proceedings. Nash also noted Board policy
with respect to granting comity to state certifications.
On January 12, 1976, after oral argument, Judge Mc-
Govern issued his opinion dismissing the Hospital's peti-
tion to set aside the final order of the PLRB ordering
that the parties comply with the provisions of that order.
On February 9, 1976, Respondent appealed this deci-
sion to the Pennsylvania Commonwealth Court.
On December 22, 1977, Judge Blatt of that court af-
firmed the order of the Delaware County Court of
Common Pleas. On January 28, 1978, Respondent filed a
petition for allowance of appeal from the Common-
wealth Court's order with the Supreme Court of Penn-
sylvania. This petition was denied on July 14, 1978.
Thus, after the final disposition of all state court pro-
ceedings, the National Labor Relations Board issued its
complaint and notice of hearing on October 18, 1978.
The PLRB Election Process and the State Court
Proceedings
The primary argument advanced by Respondent is
that it relied on the original eligibility list which was at-
tached to the PLRB's order of election, and was thus
prejudicially led to believe that these employees could
not vote. As a result Respondent made no attempt to
campaign to them although they were later found to
have been eligible voters, and their ballots were counted.
Respondent argues that, if it had not been misled, "it is
possible" that these employees may have voted against
union representation which would have resulted in con-
trary election results. It should be noted that Respondent
specifically does not, in this forum, contest the eligibility
of the employees whose votes were challenged and sub-
sequently counted. Respondent contends that, by denial
of due process resulting from the State Labor Board pro-
cedures and conduct, it was unfairly led to believe that
these employees were not eligible to vote and that cam-
paigning to them was unnecessary, although according
to Respondent the other party, i.e., the Union, apparent-
ly campaigned to them and urged them to vote.
There is no disputing the fact that Respondent relied
on a list, an eligiblity list, it had supplied to the PLRB.
Respondent adduced record testimony that it mailed
campaign literature to the employees on the eligibility
list but did not mail this literature to the 17 challenged
voters.
Leola Brown was 1 of the 17 employees in question.
At the time, her title was relief supervisor, dietary aide.
She testified that Mr. Braum and Mr. Pennington, man-
agement representatives, held a meeting in the cafeteria
which she and other relief supervisors attended. Accord-
ing to her testimony all the dietary department was invit-
ed to the meeting. At this meeting, and possibly a second
meeting where Driver was in attendance, management
expressed its opposition to the Union. Braum testified
that she actually asked a question at one of these meet-
ings.
Respondent's campaign literature reflects that it had
been distributed to all department heads for their infor-
mation, instructing them to inform their personnel of
what was taking place, even though they might not be
directly concerned.
TAYLOR HOSPITAL 139
Emily Finch, Respondent's director of community re-
lations, testified that the Hospital would send campaign
material only to the names on the list because it was the
understanding that these were the only people eligible to
receive this type of information, except for department
heads.
Evidence Presented Relating to Changes in the
Certified Bargaining Unit
Respondent entered into an oral agreement with the
Macke Vending Company in August 1978. Pursuant to
this agreement, Macke was to supply certain supervisory
personnel, a food service director, and a food production
manager. The director of patient service, who is the di-
etitian, is an employee of Respondent. Macke brings in
the food and supplies the standard recipes that are to be
followed in preparing the dishes. The agreement between
Respondent and Macke is terminable at will and, as of
the date of the instant hearing, had not been reduced to
writing.
In early September 1978, a meeting was held in class-
room D, a small cafeteria at the Hospital. Leola Brown
testified that the assistant administrator of the Hospital,
Steve Remillard, James Peterson, president of Macke,
and his assistant, Nancy Sweeney, and another woman
were in attendance. All dietary department employees
were called into the meeting and they were advised that
Macke was going to be responsible for the dietary de-
partment. Brown testified that Peterson told the dietary
employees that their jobs would not change with respect
to policy and benefits. Moreover, the employees would
continue to be paid by Taylor Hospital and they were
still working for Taylor Hospital. Brown's pay stub
dated February 9, 1979, reflects that it was issued by
Taylor Hospital.
All employees in the dietary department exclusive of
the food service director and the food production man-
ager are employed by the Hospital. The employees par-
ticipate in all of the benefit plans offered by the Hospital
for its own employees. Dietary department employees
receive wages, fringe benefits, vacations, holidays, and
other benefits of employment identical to other hospital
employees. Dietary department employees utilize the
same parking lots, lockers, cafeteria, and timeclocks as
other employees. The personnel records of all employees
are kept together in the Hospital's personnel department.
Brown testified that when she serves as a lead supervi-
sor she is responsible for the general kitchen help, in-
cluding the tray line, and she assigns them the jobs, setup
cards, call off, call foods, the dish room, and she assigns
in her words "just about everything to them." She credi-
bly testified that, when she assigns work, Macke plays no
role in the assignment. She testified further that is exact-
ly the way it was done, the same procedure, before
Macke came into the picture. She also testified that em-
ployees are scheduled in the same manner as they had
been prior to Macke's involvement, by a supervisor,
Gloria Graham.
Margaret Nolan, director of personnel for Respondent,
testified that nursing department employees and dietary
department employees are hired in the same manner. The
personnel department, after receiving the job order, ad-
vertises an opening for a position and interviews appli-
cants. Personnel has the authority to reject or accept an
applicant and, if accepted, the applicant is then sent to be
interviewed by the supervisor in the particular depart-
ment.
Dietary department employees are reviewed and eval-
uated for merit increases in the same manner as nursing
department and other employees. If a supervisor feels
that an employer warrants a merit increase the supervi-
sor fills out the appropriate evaluation form and sends it
to Nolan. Nolan and the personnel department do not
make an independent investigation of the recommenda-
tion for a merit increase. Rather, personnel relies on the
recommendation set forth on the evaluation form by the
supervisor. The evaluation form for dietary employees is
identical to the evaluation forms for employees in other
departments.
Brown testified that February 16, 1979, was her anni-
versary date, upon which she was to receive a merit in-
crease. According to her testimony she was called into
the office of Miss Sherman, the clinical dietician em-
ployed by Respondent, and Sherman reviewed her merit
increase, recommending same and signing the appropri-
ate form. Brown also signed the form, and testified that
no Macke employee was present at that meeting.
The only evidence in the record regarding reprimands
or discipline is present through the testimony of an em-
ployee, Agness George. According to her testimony she
became ill on September 13, 1978, and told her supervi-
sor, Graham, she would not appear to work on Septem-
ber 14 or 15. When she returned to work on September
20 she received an oral warning from Sweeney, director
of food services for Macke. Thereafter George ap-
proached Nolan, Respondent's director of personnel,
about the incident. Nolan advised George she would
check out the matter and asked George to make a
memorandum expressing her side. Nolan investigated and
advised George that she would not be docked for the
day.
On March 16, 1979, W. Scott Murray, Respondent's
administrator, wrote a letter to Mark Crowley, a Macke
employee whose title is director of food services:
March 16, 1979
Mr. Mark Crowley
Director of Food Services
Taylor Hospital
Ridley Park, PA 19078
Dear Mr. Crowley:
In the absence of a full written agreement, this is in-
tended to define our relationship vis-a-vis, the em-
ployees in the Department of Food Services, as I
understand it was intended when Macke was first
retained by Taylor Hospital, and which I desire to
exist at this time.
Macke has full and complete authority over and re-
sponsibility for the terms and conditions of employ-
ment of all employees in the Department of Food
Services. The only exceptions are that their wage
and benefit levels will be established by the Hospital
and included within our benefit plans.
TAYLOR HOSPITAL I3
140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As to hiring, firing, discipline, work assignments,
work scheduling, transfers, layoffs, recall, evalua-
tions, promotions and all other conditions of em-
ployment except those specifically excluded above,
Macke has complete control. The manner in which
the work is completed, the quality of the food and
food service, and the morale of the employees in
general, will be the exclusive judge of Macke's per-
formance and determinative of whether Macke's
service will be continued.
By copy of this letter to the Assistant Administrator
and Director of Personnel, I am instructing them to
refer all employee problems except those having to
do with wages and benefits and the initial applicant
screening, to you for handling.
Sincerely,
/s/ W. Scott Murray
W. Scott Murray
Administrator
This letter is dated 3 days prior to the opening of the
hearing in this proceeding. Murray testified that this
letter was intended to clarify the relationship between
the parties under his administration. Murray was not em-
ployed at the Hospital at the time the parties entered into
their oral arrangement. Curran, Macke's district man-
ager, testified that the food production manager assigns
work to the employees he supervises and the director of
patient services, who is an employee of Respondent, as-
signs work to her employees. Curran also testified that
Macke checks all scheduling.
Curran testified that he understood Macke had com-
plete control over discipline. He did acknowledge that
an employee of the dietary department could go to the
personnel department to have the discipline reviewed.
Curran testified that it was his belief that he, as a
Macke representative, had the authority to establish per-
sonnel practices, policies, or procedures which deviate
from policies, practices, or procedures that Respondent
has in effect. He qualified his answer to the extent that
he added the proviso that approval of the administration
was necessary. 3
Accretions or Changes in the Unit
The classification of cart technicians was created 3
years ago. Respondent employs from three to five of
these cart technicians. Nolan testified that their duties are
to transport supplies used on the nursing floor and to see
that the supply carts are sufficiently stocked. The person-
nel policies applicable to the cart technicians are the
same as to ail other employees. Their pay is comparable
to that of nursing aides, orderlies, "std" techs, and laun-
dry and linen employees.
Approximately 3 years ago Respondent employed an
individual classified as a messenger, who is in the materi-
al management department. His job is to pick up, deliver,
and sort mail. Respondent employs only one messenger.
Prior to the creation of this classification the duties were
performed by various employees including Nolan. The
3 I interpret this to mean the hospital administration.
messenger is also subject to the same personnel policies,
and enjoys the same benefits, as other employees. His
pay level is somewhere between the housekeeping and
nursing assistants, but less than nursing assistants. He
punches the same clock and uses the same cafeteria as
other employees.
Approximately 1-1/2 years ago Respondent created
the position of transporter. It presently employs three
transporters. It is their function to transfer patients to
and from treatment areas to respective departments.
They are employed in the department of physical medi-
cine and the department of radiology and are supervised
by supervisors in these departments. The same personnel
policies and procedures relate to them as to other em-
ployees. They enjoy the same fringe benefits including
holiday and vacations, punch the same clock, and use the
same cafeteria. Their salary is comparable to the salaries
of nursing aides, orderlies, cart technicians, "std" techni-
cians, and laundry and linen employees.
The Passage of Time and Employee Turnover
Respondent introduced documentation reflecting em-
ployee turnover by comparing the voter eligibility list of
1973 with the current payroll. Nolan testified in this
regard, reaching the conclusion that 29 percent of the
employees who were eligible to vote in 1973 are on the
current roster. Counsel for the General Counsel points
out, correctly I think, that in Nolan's calculations she did
not include, in the 1973 grouping, the employees who
did not appear on the list and were challenged. There-
fore the 29-percent figure may be an error.
Conclusions and Analysis
The PLRB Election Process and the State Court
Proceedings
Respondent contends that the memorandum of agree-
ment led it to believe that only those employees on the
eligibility list submitted by Respondent could vote in the
election. In my opinion this issue was belatedly raised in
its "Exceptions of Employer to Order and Petition for
Opening of Hearing To Receive Evidence Not Previous-
ly Treated," and its subsequent exceptions and petitions.
In effect, I heard Respondent's evidence relating to this
argument de novo, although the General Counsel object-
ed to my allowing Respondent to raise these facts. I have
considered the evidence adduced at the hearing and con-
clude that Respondent's contention is without merit. Re-
spondent argues that, had it not been misled, "it is possi-
ble" that the subject employees may have voted "no
union." I consider this conjectural and speculative and
find no merit to this argument. Moreover, Respondent
stipulated to the nonsupervisory status of seven of these
individuals prior to the commencement of the hearing at
the state level.
Relying on the testimony of Brown, Finch, and Driver
I am convinced that Respondent mistakenly believed that
the list was a "frozen" one. See Norris-Thermador Corpo-
ration, 119 NLRB 301 (1958); Cruis Along Boats Inc., 128
NLRB 1019 (1960).
In Memorial Hospital of Roxborough, 220 NLRB 402
(1975), 545 F.2d 351 (3d Cir. 1976), the Board stated "all
TAYLOR HOSPITAL 141
issues raised by the Respondent in this proceeding were
or could have been litigated in the prior representation
proceeding, and the Respondent does not offer to adduce
at a hearing any newly discovered or previously unavail-
able evidence, nor does it allege that any special circum-
stances exist herein which would require the Board to
reexamine the decision made in the representation pro-
ceeding." In the instant case Respondent has not ad-
duced for the record any newly discovered evidence as
regards the challenged ballots.
Historically, the Board has extended comity to a certi-
fication of election results by state agencies. In Allegheny
General Hospital, 230 NLRB 954, 955 (1977), the Board
delineated its criteria for granting comity by stating, inter
alia, "Our established practice has been, and continues to
be, to accord the same effect to the elections and certifi-
cations of responsible state government agencies as we
attach to our own, provided that the state proceedings
reflect the true desires of the affected employees, elec-
tion irregularities are not involved, and there has been no
substantial deviation from due process requirements. A
further requisite is that the unit established by the state
agency not be repugnant to the Act."
Subsequent to the filing of briefs in this case, the
Board issued a Decision in Doctors Osteopathic Hospital,
242 NLRB No. 65 (1979). In this case the Board adhered
to its standards for reviewing state labor board certifica-
tions. In my opinion that case supports the position of
counsel for the General Counsel and the Charging Party
(Union). Perhaps out of an overabundance of caution I
allowed Respondent to litigate that which it had already
litigated before the state courts and authorities.4 This en-
ables me to find and conclude that there are no due
process or other grounds, including the record evidence
and testimony adduced by Respondent at this hearing,
for refusing to grant comity.
Changes in the Unit
It is clear that, in the years since the PLRB made its
unit determination, there have been changes. Testimony
was taken in order to ascertain the significance of the
changes and what if any impact they have on the unit.
In my opinion most of the testimony adduced by Re-
spondent in this respect was conclusionary in nature. I
am persuaded by the preponderance of the evidence that
Respondent has demonstrated its authority to determine
policies and terms and conditions of employment for its
dietary employees and therefore is their employer.5 In
making this determination I am not overlooking Mur-
ray's letter of March 16, 1979; I am simply not giving it
any weight. Facts are more probative than a self-serving
letter.
I conclude that the arrangement between Macke and
Respondent has not diminished the community of inter-
est between the dietary employees and Respondent's
other employees. I would therefore recommend that said
dietary employees continue to be included in the unit as
certified by the PLRB.
4 Note the U.S. Court of Appeals, Third Circuit, opinion in Allegheny
General Hospital, 608 F.2d 965, where enforcement was denied
I do not find Macke to be a joint employer.
Cart Technicians, Messengers, and Transporters
Counsel for the General Counsel and counsel for the
Union argue that the changes with respect to these
added new classifications are insignificant and do not
affect community of interest or the appropriateness of
the unit.
Respondent contends that the cart technicians, messen-
gers, and transporters share a community of interest with
the other employees in the certified unit. I agree with
both views. The point of departure is Respondent's argu-
ment that the Board would be engaging in acrobatics in-
consistent with the policies and the intent of the Act if it
first clarified the unit and then extended comity. Al-
though the Board does not have before it a petition for
unit clarification, it occurs to me that in view of the fact
that I have allowed the parties to fully litigate this aspect
of the case and no one disputes, based on the record, that
these three categories of employees share a community
of interest with the other hospital employees, I believe
the Board should make such a determination. It would
not, however, in my opinion, effectuate the policies of
the Act to find the original unit inappropriate or as an
alternative find the original unit appropriate, leaving
some 9 to 11 employees hanging unrepresented with the
possibility that at some future time a party may file a pe-
tition for unit clarification.
I conclude that the appropriate unit is:
All employees of the dietary department, mainte-
nance department, housekeeping department, cen-
tral supply department, which is now known as the
materials management department, including the
cart technicians and messengers, orderly depart-
ment, nurses aides and transporters and excluding
management level employees, supervisors, first level
supervisors, confidential employees and guards as
defined in the Act. 6
Respondent's final argument goes to employee turnover
and the time lapse between the PLRB certification and
the present.
Laystrom Manufacturing Co., 151 NLRB 1482 (1965),
continues to be Board law, thus employee turnover
standing alone cannot be utilized as a basis or belief that
a union has lost its support. Continuing majority is a re-
buttable presumption and, unless there is evidence to the
contrary, it is presumed that new employees would sup-
port the union in the same ratio as those whom they
have replaced. See also Washington Manor, Inc. doing
business as Washington Manor Nursing Center (South), 211
NLRB 315 (1974). Respondent did not adduce any evi-
dence, in my opinion, to rebut the presumption.
Respondent argues that relief of its bargaining obliga-
tion is warranted in view of the long passage of time
since the certification. The delays in this case were not
occasioned by the Union or the National Labor Rela-
tions Board, but rather were the result of Respondent's
exhaustion of its remedies. In my view Respondent
6 By the clarification it is my intent to keep the original unit intact, but
to clarify the unit so as to include classifications not in existence at the
time of the original PLRB certification.
TAYLOR HOSPITAL ' ':::
142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
should not now be allowed to gain because of the length
of time it took this case to come to fruition.
I therefore conclude that Respondent, as alleged in the
complaint, has refused to bargain with the Union com-
mencing on August 28, 1974, and continuing to date, in
violation of Section 8(a)(1) and (5) of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act,
and is a health care institution within the meaning of
Section 2(14) of the Act.
2. Local 1319, Laborers' International Union of North
America, AFL-CIO-CLC, is a labor organization within
the meaning of Section 2(5) of the Act.
3. The following unit of Respondent's employees con-
stitute an appropriate unit for the purposes of collective
bargaining within the meaning of Section 9(b) of the
Act:
All employees of the dietary department, mainte-
nance department, housekeeping department, cen-
tral supply department, which is now known as the
materials management department including the cart
technicians and messengers, orderly department,
nurses aides and transporters and excluding manage-
ment level employees, supervisors, first level super-
visors, confidential employees and guards as defined
in the Act.
4. Since June 27, 1974, the above-named labor organi-
zation has been and now is the certified and exclusive
representative of all employees in the aforesaid appropri-
ate unit for the purpose of collective bargaining within
the meaning of Section 9(a) of the Act.
5. By refusing on or about August 28, 1974, 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 en-
gaging 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 interfer-
ing with, restraining, and coercing, employees in the ex-
ercise of the rights guaranteed them in Section 7 of the
Act, and has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(1) of the
Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in, and is
engaging in, unfair labor practices within the meaning of
Section 8(a)(1) and (5) of the Act, I will recommend that
it cease and desist therefrom, and, upon request, bargain
collectively with the Union as the exclusive representa-
tive of all employees in the appropriate unit, and, if al.
understanding is reached, embody such understanding in
a signed agreement.
In order to insure that the employees in the appropri-
ate unit will be accorded the services of their collective-
bargaining representative for the period provided by law,
I will recommend that the Board construe the initial
period of certification as beginning on the date Respond-
ent commences to bargain in good faith with the Union
as the recognized collective-bargaining representative in
the appropriate unit.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I issue the following recommended:
ORDER 7
The Respondent, Taylor Hospital, Ridley Park, Penn-
sylvania, its officers, agents, successors, and assigns,
shall:
I. Cease and desist from:
(a) Refusing to bargain collectively concerning rates of
pay, wages, hours, and other terms and conditions of em-
ployment with Local 1319, Laborers' International
Union of North America, AFL-CIO-CLC, as the exclu-
sive bargaining representative of its employees in the fol-
lowing appropriate unit:
All employees of the dietary department, mainte-
nance department, housekeeping department, cen-
tral supply department, which is now known as the
materials management department, including the
cart technicians and messengers, orderly depart-
ment, nurses aides and transporters and excluding
management level employees, supervisors, first level
supervisors, confidential employees and guards as
defined in the Act.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which will ef-
fectuate the policies of the Act:
(a) Upon request, bargain with the above-named labor
organization as the exclusive representative of all the em-
ployees in the aforesaid appropriate unit with respect to
rates of pay, wages, hours, and other terms and condi-
tions of employment, and, if an understanding is reached,
embody such understanding in a signed agreement.
(b) Post at Taylor Hospital copies of the attached
notice marked "Appendix." 8 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
7 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
s 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
TAYLOR HOSPITAL 143
where notices to employees are customarily posted. Rea-
sonable 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 writ-
ing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
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 con-
cerning rates of pay, wages, hours, and other terms
and conditions of employment with Local 1319, La-
borers' International Union of North America,
AFL-CIO-CLC, as the exclusive representative of
the employees in the bargaining unit described
below.
WE WILL NOT in any like or related maqner in-
terfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed them by Sec-
tion 7 of the Act.
WE WILL, upon request, bargain with the above-
named Union, as the exclusive representative 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 under-
standing in a signed agreement. The bargaining unit
is:
All employees of the dietary department, mainte-
nance department, housekeeping department, cen-
tral supply department, which is now known as
the materials management department, including
the cart technicians and messengers, orderly de-
partment, nurses aides and transporters and ex-
cluding management level employees, supervi-
sors, first level supervisors, confidential employ-
ees and guards as defined in the Act.
TAYLOR HOSPITAL
TAYLOR HOSPITAL 14_