The Altoona HospitalDownload PDFNational Labor Relations Board - Board DecisionsDec 15, 1980253 N.L.R.B. 798 (N.L.R.B. 1980) Copy Citation DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Altoona Hospital and American Federation of State, County and Municipal Employees, Dis- trict Council 83, AFL-CIO. Case 6-CA-13747 DECISION AND ORDER BY MEMBERS JENKINS, PENEL O, AND TRUESDALE Upon a charge filed on August 13, 1980, and an amended charged filed on August 19, 1980, by American Federation of State, County and Munici- pal Employees, District Council 83, AFL-CIO, herein called the Union, and duly served on The Altoona Hospital, herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 6, issued a complaint on August 27, 1980, against Re- spondent, 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 July 3, 1980, following a Board election in Case 6-RC-8599, 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 July 9, 1980, 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 representa- tive, although the Union has requested and is re- questing it to do so. On September 8, 1980, Re- spondent filed its answer to the complaint admit- ting in part, and denying in part, the allegations in the complaint. On September 15, 1980, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on September 25, 1980, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Sum- mary Judgment should not be granted. Respondent thereafter filed an opposition to the motion for Summary Judgment. I Official notice is taken of the record in the representation proceed- ing, Case 6-RC-8599, as the term "record" is defined in Secs 10268 and 102.69(g) of the Board's Rules and Regulations. Series 8, as amended. See LTV Electrosvtems, Inc., 166 NLRBH 38 (1967), enfd. 388 F.2d 683 (4th Cir 1968) Golden Age Beverage Co., 167 NL.RB 151 (1967), enfd. 415 F.2d 26 (5th Cir. 1969) Inertype Co. v. Penello, 269 F Supp. 573 (D.C.Va. 1967); Follett Corp., 164 NLRH 378 (1967), enfd 397 F2d 91 (7th Cir 1968); Sec. 9(d) of the NLRA, as amended. 253 NLRB No. 107 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. 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 its response in opposition to the Motion for Summary Judgment, Respondent admits the request to bargain but, in substance, denies that it was under any obligation to bargain with the Union. In this regard, Respond- ent attacks the Union's certification on the basis of its election objections in the underlying representa- tion proceeding. Respondent further contends that it was entitled to a hearing on the issues raised by its objections to the election. Review of the record herein, including the record in Case 6-RC8599, re- veals that an election conducted pursuant to a Stip- ulation for Certification Upon Consent Election on December 17, 1979, resulted in a vote of 393 to 272 in favor of the Union, with 25 challenged ballots, an insufficient number to affect the results. Re- spondent filed timely objections to conduct affect- ing the election, alleging, inter alia, that the Peti- tioner's campaign literature compromised the neu- trality of the Board. After investigation, the Regional Director issued a Report on Objections on March 18, 1980, and an erratum thereto dated March 21, 1980, in which he recommended that the objections be overruled in their entirety and that the Union be certified. Thereafter, Respondent filed exceptions to the Re- gional Director's report. On July 3, 1980, the Board, having considered the Regional Director's report, Respondent's exceptions thereto, and the entire record, adopted the findings, conclusions, and recommendations of the Regional Director and certified the Union as the exclusive bargaining agent of the employees in the unit stipulated to be appropriate. 2 In its opposition to the Motion for Summary Judgment, Respondent reiterates its contention that the Regionl Director was in error in recommend- ing that its objections be overruled without a hear- ing being held. It thus appears that Respondent is attempting in this proceeding to relitigate issues fully litigated and finally determined in the repre- sentation proceeding. It is well settled that in the absence of newly dis- covered or previously unavailable evidence or spe- cial circumstances a respondent in a proceeding al- leging a violation of Section 8(a)(5) is not entitled 2 Not reported in bound volumes of Board Decisions. 798 THE ALTOONA HOSPITAL. to relitigate issues which were or could have been litigated in a prior representation proceeding. 3 All issues raised by Respondent in this proceed- ing were or could have been litigated in the prior representation proceeding, and Respondent does not offer to adduce at a hearing any newly discov- ered 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. In this proceeding Respondent contends that it was denied its right to a hearing on its objections to the election. Prior to adopting the findings, con- clusions, and recommendations of the Regional Di- rector's Report on Objections, the Board consid- ered the report, Respondent's exceptions thereto, and the entire record in this case. By its adoption of the report recommending that Respondent's ob- jections be overruled, the Board necessarily found that the objections raised no substantial or material issues warranting a hearing. 4 Further, it is well es- tablished that the parties do not have an absolute right to a hearing on objections to an election. It is only when the moving party presents a prima facie showing of substantial and material issues which would warrant setting aside the election that it is entitled to an evidentiary hearing. It is clear that, absent arbitrary action, this qualified right to a hearing satisfies the constitutional requirements of due process. 5 Accordingly, we grant the Motion for Summary Judgment.6 3 See Pittsburgh Plate Glass Co. v. NL.R.B., 313 US. 146, 162 (1941); Rules and Regulations of the Board, Secs. 102.67(f) and 102.6 9 (c). ' Madisonville Concrete Co.. A Division of Corum d Edwards. Inc., 220 NLRB 668 (1975); Evansville Auto Paris, Inc., 217 NLRB 660 (1975). 6 GTE Lenkurt, Incorporated, 218 NLRB 929 (1975); Heavenly Valley Ski Area, a California Corporation, and Heavenly Valley, a Partnership, 215 NLRB 734 (1974); Amalgamated Clothing Workers of America [Winfield Manufacturing Company, Inc.] v. N.LR.B., 424 F.2d 818, 828 (DC. Cir. 1970). 6 The complaint alleges, and Respondent admits in its answer, that the Union requested bargaining by letter dated July 7, 1980. The complaint further alleges that since July 9, 1980, Respondent has refused to bargain with the Union. Respondent denies this allegation in its answer but in its opposition to the summary judgment motion admits forwarding a letter on July 9 to the Union and admits publishing a communication to em- ployees dated August 25, 1980. We note that, while the August 25 docu- ment clearly sets forth Respondent's refusal to bargain, the July 9 letter to the Union merely states that, while Respondent believed that the Union should not have been certified to represent its employees, it had not yet decided whether to seek court review of the Board's Decision by refusing to bargain. Nevertheless, the Union was duly certified on July 3, 1980, and the Union began requesting that Respondent bargain on July 7, 1980. Thus, although on July 9 Respondent stated it had not yet decided to refuse to bargain and did not formally communicate such refusal until August 25, it could not thereby lawfully postpone its statutory obligation to bargain with the duly certified representative of its employees. Ac- cordingly, we conclude that, as alleged in the complaint, commencing on July 9, 1980, Respondent refused to bargain with the Union We further On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent is a nonprofit Pennsylvania corpora- tion engaged in the operation of a hospital. During the 12-month period ending July 31, 1980, Re- spondent, in the course and conduct of its oper- ations, derived gross revenues in excess of $250,000. During the same period, Respondent in the course and conduct of its operations purchased and received at its Altoona, 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 poli- cies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED American Federation of State, County and Mu- nicipal Employees, District Council 83, AFL-CIO, is a labor organization within the meaning of Sec- tion 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of Respondent consti- tute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All service and maintenance employees, tech- nical employees, medical records clericals, fi- nance clericals, credit department clericals, billing office clericals, business office clericals, admitting office clericals, nursing service cleri- cals, emergency and outpatient services cleri- cals, family health center clericals, family plan- ning center clericals, laboratory clericals, mental health center clericals, nursing educa- tion clericals, purchasing clericals, radiology clericals, social service clericals, volunteer service clericals and medical staff secretaries employed by the Employer at its Altoona, Pennsylvania, facility; excluding the account- ing clerk, accounts payable auditor, inventory control clerk, clerk-dispatchels, secretaries to deny General Counsel's motion to strike Respondent's defenses set out in its opposition to the summary judgment motion. 799 I)I(ISI()NS ()F NATIONAIl. IABOR RELA IONS BOARD medical directors, all other employees, confi- dential employees and guards, professional em- ployces and supervisors as defined in the Act. 2. The certification On December 17, 1979, a majority of the em- ployees of Respondent in said unit, in a secret- ballot election conducted under the supervision of the Regional Director for Region 6, designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the collective-bar- gaining representative of the employees in said unit on July 3, 1980, 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 July 7, 1980, and at all times thereafter, the Union has requested Respond- ent to bargain collectively with it as the exclusive collective-bargaining representative of all the em- ployees in the above-described unit. Commencing on or about July 9, 1980, and continuing at all times thereafter to date, Respondent has refused, and continues to 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 July 9, 1980, and at all times thereafter, refused to bargain collectively with the Union as the exclu- sive representative of the employees in the appro- priate unit, and that, b'y such refusal, Respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8(a)(5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR I.ABOR PRACTICES UPON COMMERCE The activities of Respondent, set forth in section III, above, occurring in connection with its oper- ations described in section I, above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of com- merce. 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 appropriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. In order to insure that the employees in the ap- propriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certi- fication as beginning on the date Respondent com- mences to bargain in good faith with the Union as the recognized bargaining representative in the ap- propriate 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: CONCIUSIONS OF LAW 1. The Altoona Hospital is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. American Federation of State, County and Municipal Employees, District Council 83, AFL- CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All service and maintenance employees, tech- nical employees, medical records clericals, finance clericals, credit department clericals, billing office clericals, business office clericals, admitting office clericals, nursing service clericals, emergency and outpatient services clericals, family health center clericals, family planning center clericals, labora- tory clericals, mental health center clericals, nurs- ing education clericals, purchasing clericals, radiol- ogy clericals, social service clericals, volunteer service clericals and medical staff secretaries em- ployed by the Employer at its Altoona, Pennsylva- nia, facility; excluding the accounting clerk, ac- counts payable auditor, inventory control clerk, clerk-dispatchers, secretaries to medical directors, all other employees, confidential employees and guards, professional employees 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 July 3, 1980, the above-named labor or- ganization has been and now is the certified and ex- clusive 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 July 9, 1980, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive 8(X) 1HE ALT(H)NA HOSPITAL bargaining representative of all the employees of Respondent in the appropriate unit, Respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain, Respond- ent 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 en- gaged 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 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 Re- lations Board hereby orders that the Respondent, The Altoona Hospital, Altoona, 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 American Feder- ation of State, County and Municipal Employees, District Council 83, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All service and maintenance employees, tech- nical employees, medical records clericals, fi- nance clericals, credit department clericals, billing office clericals, business office clericals, admitting office clericals, nursing service cleri- cals, emergency and outpatient services cleri- cals, family health center clericals, family plan- ning center clericals, laboratory clericals, mental health center clericals, nursing educa- tion clericals, purchasing clericals, radiology clericals, social service clericals, volunteer service clericals and medical staff secretaries employed by the Employer at its Altoona, Pennsylvania, facility; excluding the account- ing clerk, accounts payable auditor, inventory control clerk, clerk-dispatchers, secretaries to medical directors, all other employees, confi- dential employees and guards, professional em- ployees and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise 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 understanding is reached, embody such under- standing in a signed agreement. (b) Post at its facility at Howard Avenue and Seventh Street in Altoona, Pennsylvania. copies of the attached notice marked "Appendix." 7 Copies of said notice, on forms provided by the Regional Director for Region 6, after being duly signed by Respondent's representative, shall be posted by Re- spondent 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. 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 6, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. I In the cvtil that this Order is enf,,rtetl h a Judgnllt of i Illled S;ates Coullrt f Appeals. the ords in the tioiice rcadlig "Polti'd I Order of The NaliCopy with citationCopy as parenthetical citation