The Long Island College Hospital

National Labor Relations Board - Board Decisions

Feb 9, 1977

228 N.L.R.B. 83 (N.L.R.B. 1977)

THE LONG ISLAND COLLEGE HOSPITAL 83
The Long Island College Hospital and Local 144,
Hotel, Hospital Nursing Home and Allied Services
Union , Service Employees International Union,
AFL-CIO. Case 29-CA-4562
February 9, 1977
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND JENKINS
On June 4, 1976, Administrative Law Judge Mi-
chael O. Miller issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions 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.
The Board has considered the record and the
attached Decision in light of the exceptions and
brief i and has decided to affirm the rulings, findings,
and conclusions 2 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
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, The Long Island
College Hospital, New York, New York, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
complaint issued by the Regional Director for Region 29 of
the National Labor Relations Board on December 31, 1975.
The complaint alleged that the Long Island College
Hospital, herein Respondent, has refused to meet or
bargain with the Union in violation of Section 8(a)(5) and
(1) of the National Labor Relations Act, herein the Act.
Respondent timely filed an answer to the complaint,
admitting certain facts, denying the commission of the
alleged unfair labor practices and setting forth its affirma-
tive defenses. Briefs have been filed by General Counsel,
Respondent, and the Union.
Based upon the entire record in this case,' including the
briefs and oral arguments of counsel and my observation of
the witnesses and their demeanor, I make the following:
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS
Respondent, a New York corporation, is engaged in the
operation of a not-for-profit hospital, providing hospital,
health care, and related services in New York, New York.
The complaint alleged and Respondent admitted that
during the past year, a representative period, Respondent
derived in excess of $250,000 in gross revenues from its
operations and purchased and caused to be transported to
its New York location goods and materials valued in excess
of $50,000, in interstate commerce, directly from States of
the United States other than the State of New York. The
complaint alleged, Respondent admitted, and I find that
Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
II. THE UNION'S LABOR ORGANIZATION STATUS
The complaint alleged, Respondent admitted, and I find
that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
1 Respondent's request for oral argument is hereby denied, inasmuch as
the record , the exceptions , and the brief adequately present the issues and the
positions of the parties.
2 With all due respect for the views expressed by the Court of Appeals for
the Third Circuit in its opinion in Memorial Hospital of Roxborough v.
N.L.R.B, 545 F.2d 351 ( 1976), we respectfully adhere to the Board majority's
opinion in that case , reported at 220 NLRB 402 (1975), until such time as the
Supreme Court shall have passed on the matter
DECISION
STATEMENT OF THE CASE
MICHAEL O. MILLER , Administrative Law Judge: A
hearing in this matter was held before me in Brooklyn, New
York, on March 9 and 10, 1976, based upon a charge filed
by Local 144, Hotel, Hospital Nursing Home and Allied
Services Union , Service Employees International Union,
AFL-CIO, herein the Union , on September 8, 1975, and a
1 Respondent's unopposed motion to correct the transcript is granted.
2 The facts as set forth in this chronology are not in dispute . They are based
upon admissions , stipulations , and reported administrative agency and court
decisions of which I have taken judicial notice, pursuant to the requests of
the parties
3 The election upon which the certification was based had been conduct-
ed on July 22, 1964, upon an SLRB direction of election which had issued
228 NLRB No. 13
III. THE UNFAIR LABOR PRACTICES
A. The Issues and Chronology of Events 2
The principal issue herein is the effect to be given to a
certification of representative issued by the New York State
Labor Relations Board , herein the SLRB . That certification
issued in 1964, but because of protracted litigation , resulted
in little collective bargaining and did not bring to fruition a
contractuahzed collective-bargaining relationship . Respon-
dent's affirmative defenses questioned the effect on the
continuance of the bargaining obligation of changes in
Respondent's location, operations , and unit composition.
On December 28, 1964 , the SLRB certified the Union as
the exclusive collective-bargaining representative of Re-
spondent's employees in the following unit: 3
July 6, 1964 (27 NYSLRB 405). The ballot afforded the employees in this
unit the following choices for self-determination: separate unit status,
representation by the Union in such a separate unit , or, if no separate unit
was selected , representation by the Union in an overall service employee
unit. The employees chose union representation in the separate unit In a unit
of approximately 55 employees , 44 employees cast valid ballots The Union
(Continued)
84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All full-time and regular part-time employees in the
maintenance of plant and engineering department,
excluding chief engineers, assistant chief engineers,
clerk and maintenance supervisor, [and all supervisors
as defined in Section 2(11) of the Act.]
Respondent refused to bargain with the Union, contending,
inter alia, that the unit was inappropriate.
At this point, as it was subsequently determined, the
Union chose an inappropriate avenue of review . It invoked
section 716 of the State Labor Relations Act, which
provided for mediation , fact fording, and binding arbitra-
tion of "disputes" between nonprofitmaking hospitals and
unions . The State Industrial Commissioner appointed a fact-
finding commission and, when that commission 's recom-
mendations were rejected by Respondent, sent the contro-
versy to arbitration before the New York State Board of
Mediation. Respondent sought to enjoin both the fact
finding and the arbitration.
On November 7, 1968, the New York Court of Appeals,
in Long Island College Hospital v. Catherwood, 23 N.Y.2d
20, 294 N.Y.S.2d 697, 69 LRRM 2605 (1968) (hereinafter
referred to as College Hospital I) upheld Respondent's
contention that resort to section 716 was inappropriate,
concluding the "disputes" as defined in that section did not
include representation issues . The Union, it found, should
have followed "the traditional procedure by filing an unfair
labor practice charge under Section 704(6 ) [State Labor
Relations Act] against the hospital for its refusal to bargain
collectively with the representatives of the employees-a
procedure which . . . would have enabled the hospital
judicially to challenge the fording of an unfair labor
practice as well as the Labor Board's certification of the
union as exclusive representative for maintenance employ-
ees." The Union's appeal from this decision was dismissed.
Ottley et at v. Long Island College Hospital, 394 U.S. 716
(1969).
Respondent , on May 13 , 1969, moved before the SLRB
to vacate the certification as stale and unenforceable due to
the passage of time and changes in the composition of the
unit. The SLRB denied the motion.
In accord with the decision of the New York Court of
Appeals, the Union, on May 7, 1969, filed its unfair labor
practice charge against Respondent , alleging a refusal to
bargain under the State Labor Relations Act, section
704(6). A complaint issued . As subsequently and succinctly
related by the New York Court of Appeals (Long Island
College Hospital v. N. Y. Labor Board 32 N.Y.2d 314, 345
N.Y.S.2d 449, 85 LRRM 2580, 2581 (1973), hereinafter
referred to as College Hospital II):
At the SLRB hearings which followed, the hospital not
only attacked the board's original certification order of
1964, determining that the skilled maintenance workers
constituted an appropriate bargaining unit , but inter-
posed new matters concerning , among other things,
alleged improprieties in the conduct of the election.
After thorough consideration of these issues , the board
adhered to its earlier decision and entered an order,
dated June 30, 1971, which directed the hospital to
cease and desist from refusing to bargain with Local 144
and extended its certification for one year from the date
of its order or from the completion of any judicial
review of that order.4
On Respondent's appeal of the SLRB's order, the Appellate
Division of the New York Supreme Court (39 A.D.2d 913,
80 LRRM 3375) while upholding the SLRB 's unit determi-
nation and its use of a self-determination election proce-
dure , annulled the board's order and directed a new
election upon certain of the hospital's objections to the
conduct of the election. The court of appeals in College
Hospital II, supra, reversed, finding:
The Appellate Division was eminently correct insofar as
it affirmed the board's determination that the hospital's
skilled maintenance employees constituted an appropri-
ate bargaining unit... .
Accordingly, the board's practice, resulting in the
establishment of a separate bargaining unit of skilled
maintenance employees , seems eminently proper and,
certainly, may not be stamped as either arbitrary or
capricious.
Nor, in our view is there any valid basis for the
hospital's attack on the conduct to the election. . . . [85
LRRM 2581, 2582.]
The SLRB bargaining order was reinstated and enforced.
Respondent's petition for a writ of certiorari was denied by
the United States Supreme Court on March 4, 1974 (415
U.S. 957).
Respondent thereupon entered into negotiations with the
Union, nearly a decade after the certification first issued. It
continued to maintain its position at these negotiations that
the unit was inappropriate. Negotiations continued until
mid-August 1975, at which time Respondent refused to
bargain further , contending again that the unit was inap-
propriate. During the period of bargaining , on August 25,
1974, the hospital amendments to the National Labor
Relations Act became effective (Public Law 93-360).
B. Analysis and Conclusions
The Board has long held that it "will recognize the results
of an election conducted by a responsible state agency, and
therefore extend comity to a certification issued pursuant to
such an election, where the state agency's election proce-
dures conform to due process requirements and effectuate
the policies of the Act." Memorial Hospital of Roxborough,
220 NLRB 402 (1975); Screen Print Corporation, 151 NLRB
1266 (1965); The West Indian Co., Ltd, 129 NLRB 1203
(1961); Bluefield Produce & Provision Company, 117 NLRB
1660 (1957). Respondent asserts that the instant case does
not call for the extension of comity because: the New York
statute is at odds with this Act; the unit found appropriate
by the SLRB is inimical to the provisions of the Act in light
of the legislative history of the recent hospital amendments;
received a majonty-24. The employees in the larger service unit, voting on Trial Examiner. It had also moved to reopen the heanng and for reconsider-
the same day , rejected representation . ation of that latter motion upon its denial.
4 Respondent had excepted to the earlier adverse findings of the SLRB
THE LONG ISLAND COLLEGE HOSPITAL
and because of the lapse of time and concomitant changes
in the unit since that certification.5
1. Statutory comparison
Respondent contended that the law applied by the SLRB
in making its 1964 unit finding was so different from the
Act that the application of comity was unwarranted. It
cited, as the material variance, only the following portion of
section 705(2) of the state act:
[T ]hat in any case where the majority of employees of a
particular craft, or in the case of a non-profitmaking
hospital or residential care center where the majority of
employees of a particular profession or craft, shall so
decide the board shall designate such profession or craft
as a unit appropriate for the purpose of collective
bargaining .6
It is clear from a reading of the SLRB decision, order and
direction of election (The Long Island College Hospital, 27
NYSLRB 405) that the SLRB did not rely upon (and
indeed was able to avoid application of) the aforequoted
proviso in directing the election herein. Rather, the SLRB
weighed the various factors traditionally considered by it
(and by the NLRB) in reaching unit determinations,
including homogeneity, earnings, interchange, and history
of collective bargaining, against itspolicy of avoiding "over-
compartmentalization of hospitals into numerous small
bargaining units" and found the factors to be evenly
balanced. It thereupon, in a manner comparable to the
NLRB in The Globe Machine and Stamping Co., 3 NLRB
294, 299-300 (1937), determined to allow the balance to be
tipped by the desires of the employees involved.
Evinrude Motors Division of Outboard Marine and Manu-
facturing Company, 66 NLRB 1142 (1946), and Wilson-Hurd
Manufacturing Company, Inc., 68 NLRB 853 (1946), relied
upon by Respondent (even assuming they represent the
Board's present policy in regard to comity) are inapposite.
In those cases the key factor was the state agency's lack of
discretion in regard to the conduct of a separate craft
election. In the instant case, the SLRB's direction of a self-
determination election in the maintenance and engineering
department was entirely an exercise of its reasoned discre-
tion. That discretion was exercised only after general and
specific hearings were held by the SLRB on the unit
question. See College Hospital II, supra, 85 LRRM at 2582.
Additionally, in both Evinrude and Wilson-Hurd the state
agency had directed craft elections after petitions for same
5 No contention was made and, in view of the repeated resort to the
courts at all levels, the many hearings, and the detailed decisions issued
herein, no contention could validly have been made that Respondent was not
accorded due process.
6 The portion quoted by Respondent is the proviso to the following
statutory provision:
[70512. The board shall decide in each case whether , in order to insure
employees the full benefit of their right to self-organization , to collective
bargaining and otherwise to effectuate the policies of this article, the
unit appropriate for the purposes of collective bargaining shall be the
employer unit, multiple employer unit, craft unit, plant unit, or any
other unit; provided however ... .
7 Sec. 9(bx 1) and (2) of the National Labor Relations Act reads:
[Sec. 9](b) The Board shall decide in each case whether, in order to
assure to employees the fullest freedom in exercising the rights
85
had been dismissed by National Labor Relations Board
Regional Directors, at times when the NLRB had jurisdic-
tion, and in the face of existing and viable collective-
bargaining relationships on broader bases.
Similarly inapposite are those cases relied upon by
Respondent (Malcolm X Center for Mental Health, Inc., 222
NLRB 944 (1976); Mental Health Center of Boulder County,
Inc., 222 NLRB 901 (1976); and St. Luke's Hospital Center,
221 NLRB 1314 (1976)), wherein the Board refused to give
comity to state agency unit determinations which, on their
face, were at variance with express statutory provisions, i.e.,
they included professional and nonprofessional employees
in a single unit without the self-determination election
required to be accorded professionals under Section 9(b)(1)
of the Act. No such violation of express statutory mandate
is involved herein.
Finally, I would note in this regard that section 705(2) of
the New York statute is essentially identical to Section 9(b)
of the Federal Act and the provisos to both provisions
express similar concerns.7 Both seek to protect professional
employees and skilled craft employees from undesired
inclusion in units comprised of persons of different inter-
ests, training, education, and skills.
I therefore conclude that such differences as may exist
between the National Labor Relations Act and the New
York State Labor Relations Act do not render comity
unwarranted. The statutes generally and as applied by the
SLRB in this case are not inimical.
2. Unit proliferation
It is true, as contended by Respondent, that the legisla-
tive history of the hospital amendments admonishes the
Board to avoid undue proliferation of bargaining units in
the health care industry.8 Respondent contends that the
maintenance-engineering department unit found appropri-
ate herein constitutes such an undue proliferation. How-
ever, as the Board stated in the recent case of Jewish
Hospital of Cincinnati, 223 NLRB 614 (1976):
Congress left the matter of the determination of
appropriate units to the Board, and the desire for
nonproliferation does not, in our judgment, necessarily
preclude our granting maintenance units in the health
care area. Congress was aware that the Board has
sometimes found that a separate maintenance unit is
appropriate if the maintenance employees possess a
community of interest sufficiently separate and distinct
from the broader community of interest which they
share with other employees to warrant their inclusion in
guaranteed by this Act, the unit appropriate for the purposes of
collective bargaining shall be the employer unit, craft unit, plant unit, or
subdivision thereof: Provide4 That the Board shall not (1) decide that
any unit is appropriate for such purposes if such unit includes both
professional employees and employees who are not professional
employees unless a majority of such professional employees vote for
inclusion in such unit ; or (2) decide that any craft unit is inappropriate
for such purposes on the ground that a different unit has been
established by a prior Board determination , unless a majority of the
employees in the proposed craft unit votes against separate representa-
tion....
S. Rept. 93-766, 93d Cong., 2d sess. 5 (1974); see also H. Rept. 93-1051,
93d Cong., 2d sess. 7 (1974); Mercy Hospitals of Sacramento, 217 NLRB 765
(1975).
86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a separate unit . Yet, it did nothing to preclude our
granting such units . Congress in fact rejected Senator
Taft's suggestion that maintenance employees should
always be combined with service employees into a
single unit . [Footnotes omitted.]
It is thus clear that the fact that a unit of the maintenance
and engineering department is involved herein does not, of
itself, warrant a rejection of the principle of comity . Indeed,
it was just such a unit, maintenance department or
maintenance-plant operations, involving employees fulfill-
ing the same work responsibilities as those herein, which
was involved in Memorial Hospital of Roxborough , supra.
The Board therein extended comity entirely upon the
Pennsylvania Labor Relations Board 's determination of all
election issues , without further discussion of either unit
appropriateness or unit proliferation.
Moreover, as noted supra the SLRB soon adopted a
policy, similar to that expressed in the legislative history to
the recent amendments, "against over-compartmentaliza-
tion of hospitals into numerous small bargaining units"
(Matter of Wyckoff Heights Hospital, 27 NYSLRB 75, 82-
83), and specifically applied that policy to the direction of
election in the instant case . Long Island College Hospital, 27
NYSLRB 405, 411 . As the New York Court of Appeals
pointed out:
Without merit is the hospital 's argument that the unit
selected may improperly fragment the hospital into
numerous small units. . . . Actually, the board's prac-
tice in allowing skilled maintenance employees in
hospitals to form a separate bargaining unit if they wish
to do so, far from constituting over-compartmentaliza-
tion , has avoided more serious fragmentation into
numerous smaller units since , under the mandatory
craft unit provision of subdivision 2 of section 705, each
skilled craft, such as plumbers , painters and carpenters,
could have demanded and could have been included in
a separate unit . [College Hospital, II, supra, 85 LRRM at
2582.]
3. The lapse of time
The Board, in Memorial Hospital of Roxborough, supra,
reiterated its well-settled rule "that in the absence of newly
discovered or previously unavailable evidence or special
circumstances a respondent in a proceeding alleging a
violation of Section 8(aX5) of the Act is not entitled to
relitigate issues which were or could have been litigated in a
prior representation proceeding." Respondent does not
appear to rely upon any contention of newly discovered or
previously unavailable evidence. It does, however, contend
that the Union's responsibility for the lapse of time between
the certification and the commencement of bargaining was
a special circumstance which warranted relitigation and
reconsideration of the unit determination . As previously
noted, the Union initially chose an inappropriate avenue to
challenge Respondent's refusal to bargain. The delay
occasioned by its choice, from certification in December
1964 until the initial court of appeals decision in November
1968, caused that court to place responsibility for the delay
B Respondent emphasized Judge Fuld' s assessment of blame upon the
Union, in College Hospital I, in both oral argument and brief herein. It failed,
upon the Union . However, the court also noted in a
footnote to that comment that delay occurs whenever
parties resort to the courts for the final adjudication of their
disputes. College Hospital I, supra, 69 LRRM at 2609, fn. 5
(1968). Moreover, the same court, by the same judge, Chief
Judge Fuld , in reaching its second decision in this matter,
upholding Respondent 's obligation to bargain, added:
It is only necessary to add that there is no basis
whatever for criticism of the union for its asserted delay
in failing to file an unfair labor practice complaint....
As our court unequivocally stated in the Roosevelt
Hospital case. . . . "Delays occasioned by the union's
exercise of what it reasonably believed to be its right
under the statute [to invoke the mediation, fact-finding
and compulsory arbitration proceedings of section 716 ]
did not call for a redetermination of its status as a
representative any more than would delays resulting
from the slowness of administrative action or from the
employer's pursuit of his judicial remedies in seeking
court review of the board's certification." [College
Hospital II, supra, 85 LRRM at 2585.]9
To Chief Judge Fuld's observations I would add only that
the delay did not cease when the union chose the legally
correct procedure. More time has passed since the Union
filed its unfair labor practice charge than was spent prior
thereto in pursuing what it then deemed to be an appropri-
ate means for resolving the issues and bringing Respondent
to the bargaining table.
The contention that the mere passage of time is a
sufficient special circumstance to warrant relitigation is
similarly without merit. To entertain such a defense would
produce the anomalous result of permitting a Respondent
to benefit from a lapse of time resulting from litigation for
which it was responsible by virtue of its unlawful refusal to
bargain. Holly Farms Poultry Industries, Inc., 189 NLRB 663
(1971). See also Spitzer Akron, Inc., 195 NLRB 114 (1972),
and the dissenting opinion by Members Fanning and
Jenkins in George Braun Packing Co., 210 NLRB 1028, 1029
(1974).
Respondent also contended that "the SLRB's certifica-
tion expired on March 4, 1975-one year after the Supreme
Court denied the Hospital's request to review the New York
Court of Appeals' bargaining order (415 U.S. 957)-so that
there is nothing to give comity to ." In so arguing , Respon-
dent has misconceived the nature of a certification of
representative. Certification is not a license which , upon the
mere passage of time , expires as if it were a license to
operate a motor vehicle. Rather, certification is a key which
opens a collective-bargaining relationship. That relation-
ship remains viable until some material circumstance arises
to place the continued existence of that relationship in
question . The passage of time , alone, is, as noted , not such a
material circumstance. See, for example, Ray Brooks v.
N.L.R.B, 348 U.S. 96, 98 (1954); King Radio Corporation,
208 NLRB 578 (1974), enfd.510 F.2d 1154 (C.A. 10, 1975);
Laystrom Manufacturing Co., 151 NLRB 1482, 1483 (1965).
however, to make any references to the referred-to footnote or to Judge
Fuld's subsequent decision, reassessing that responsibility.
THE LONG ISLAND COLLEGE HOSPITAL 87
4. Changes in unit composition
Respondent has contended that change in the unit
composition is a special circumstance which warrants a
redetermination of the unit question. It appears that the
employee complement of the maintenance and engineering
department has grown from approximately 55 in 1964 to 69
in 1976. Approximately 8 of the original 55 remain
employees within this department. Others have assumed
supervisory responsibilities in the department or left. While
Respondent has not asserted, in haec verba, that this
turnover has given rise to a reasonable basis for doubting
the Union's majority, its assertions are equivalent to such
an argument and the principles applicable to a doubt of
majority based on turnover are applicable herein. In
Laystrom Manufacturing Co., 151 NLRB 1482, 1484 (1965),
it was stated:
Employee turnover standing alone does not provide a
reasonable basis for believing that the Union had lost its
majority since the prior election. The Board has long
held that new employees will be presumed to support a
union in the same ratio as those whom they have
replaced.
See also, Washington Manor Nursing Center (South), 211
NLRB 315 (1974), and Washington Manor Nursing Center
(North), 211 NLRB 324 (1974). Both cases were enforced at
N.L.R.B. v. Washington Manor, Inc., 519 F.2d 750(C.A.6,
1975). Moreover, after the certification year, a union enjoys
a rebuttable presumption of majority. No evidence, beyond
turnover, has been offered to rebut that presumption here.
N.L.R.B. v. Washington Manor, Inc., supra. Thus, to the
extent that Respondent's argument implies a doubt of the
Union's majority status, it is without merit.
5. Changes in operations
Respondent has contended that changes in its operations
warrant a redetermination of unit appropriateness. The
record reveals that over the course of years, Respondent
has built or acquired new buildings, terminated operations
of some buildings, and moved operations from older to
newer buildings. All of the buildings remain in the same
geographical area. Some equipment has been modernized
and some more sophisticated technology added. As part of
a departmental "reorganization" around 1969 (prior to
enforcement of the SLRB's order to bargain), specific job
titles for many of the maintenance and engineering depart-
ment employees were eliminated. The work, responsibili-
ties, and contact with employees of other departments, of
the maintenance-engineering employees remained un-
changed, however, and a number of the employees have
continued to this day to perform such specialized and
skilled functions as plumber, electrician, and refrigeration
mechanic. At the same time, new supervisory positions
within the department were created, assigning responsibili-
ty for particular maintenance tasks to lower level supervi-
sors. These supervisors continue to report to a director of
engineering who has overall supervision and responsibility
for the maintenance and engineering department. Such
changes do not materially affect the community of interest
of the maintenance and engineering department employees.
See The Rittling Corporation, 203 NLRB 355 (1973).
6. Conclusion
As neither the lapse of time nor the aforementioned
changes present special circumstances sufficient to warrant
relitigation of the unit issues as determined by the SLRB,
and as neither the New York statute nor the SLRB decision
and direction of election provide a basis for the denial of
comity, it is appropriate, under established Board prece-
dent, that comity be given to the SLRB determination.
Accordingly, I find that the employees in Respondent's
maintenance of plant and engineering department consti-
tute a unit appropriate for the purpose of collective
bargaining. I conclude that by breaking off negotiations
with the Union in mid-August 1975, because it believed
that unit to be inappropriate for collective-bargaining
purposes, Respondent has failed and refused to bargain in
good faith with the Union in violation of Section 8(a)(5) of
the Act.
CONCLUSIONS OF LAW
1. The Long Island College Hospital is an employer
within the meaning of Section 2(6) and (7) of the Act.
2. Local 144, Hotel , Hospital Nursing Home and Allied
Services Union, Service Employees International Union,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. All full-time and regular part-time employees in the
maintenance of plant and engineering department , exclud-
ing chief engineers , assistant chief engineers , clerk and
maintenance supervisor, and all supervisors as defined in
Section 2(11) of the Act, constitute a unit appropriate for
the purposes of collective -bargaining within the meaning of
Section 9(b) of the Act.
4. Since December 28, 1964 , the above-named labor
organization has been and is now the certified and exclusive
representative of all employees in the aforesaid appropriate
unit for the purposes of collective bargaining within the
meaning of Section 9(a) of the Act.
5. By refusing on or about August 14, 1975, 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 to 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 meaning of Section
2(6) and (7) of the Act.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, it will be recommended that it be
88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ordered to cease and desist therefrom and to take affirma-
tive action to effectuate the policies of the Act.
As Respondent 's violations go to the very heart of the
Act, the recommended Order shall require Respondent to
cease and desist from in any other manner infringing upon
the rights guaranteed to its employees by Section 7 of the
Act. N.LR. B. v. Entwistle Mfg. Co., 120 F.2d 532,536 (C.A.
4, 1941).
Upon the basis of the foregoing findings of fact, conclu-
sions of law , and the entire record in this proceeding, and
pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
ORDER'°
Respondent, The Long Island College Hospital, New
York, New York, 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 Local 144, Hotel, Hospital Nursing
Home and Allied Services Union , Service Employees
International Union , AFL-CIO, as the exclusive bargain-
ing representative of its employees in the following appro-
priate unit:
All full-time and regular part-time employees in the
maintenance of plant and engineering department,
excluding chief engineers , assistant chief engineers,
clerk and maintenance supervisor , and all supervisors as
defined in Section 2(11) of the Act.
(b) In any other 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 will
effectuate the policies of the Act:
(a) Upon request , bargain with the above-named labor
organization as the exclusive representative of all employ-
ees 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 understanding in a signed agreement.
(b) Post at The Long Island College Hospital copies of
the attached notice marked "Appendix ." 11 Copies of said
notice, on forms provided by the Regional Director for
Region 29 , 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, includ-
ing all places where notices to employees are customarily
posted. Reasonable 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 29, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
10 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 findings,
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.
11 In the event the Board's Order is enforced by a Judgment of the 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 concern-
ing rates of pay, wages, hours, and other terms and
conditions of employment with Local 144, Hotel,
Hospital Nursing Home and Allied Services Union,
Service Employees International Union , AFL-CIO, as
the exclusive representative of the employees in the
bargaining unit described below.
WE WILL NOT in any other 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 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 understand-
ing is reached, embody such understanding in a signed
agreement . The bargaining unit is:
All full-time and regular part-time employees in
the maintenance of plant and engineering depart-
ment, excluding chief engineers, assistant chief
engineers, clerk and maintenance supervisor, and
all supervisors as defined in Section 2(l1) of the
Act.
THE LONG ISLAND
COLLEGE HOSPITAL