Trinity Memorial Hospital of Cudahy, Inc.

National Labor Relations Board - Board Decisions

May 23, 1979

242 N.L.R.B. 442 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Trinity Memorial Hospital of Cudahy, Inc. and Inter-
national Union of Operating Engineers, Local
#317, AFL-CIO. Case 30-CA-4375
May 23, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
Upon a charge filed on September 30, 1977, by In-
ternational Union of Operating Engineers, Local
#317, AFL-CIO, herein the Union, and duly served
on Trinity Memorial Hospital of Cudahy, Inc., herein
called Respondent, the General Counsel of the Na-
tional Labor Relations Board, by the Regional Direc-
tor for Region 30, issued a complaint on November 8,
1977, against Respondent, 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, 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 com-
plaint alleges, in substance, that on August 22, 1977,
following a Board election in Case 30-RC-3004, the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate;' and that, commencing
on or about September 28, 1977, and at all times
thereafter, Respondent has refused and continues to
date to refuse to bargain collectively with the Union
as the exclusive bargaining representative, although
the Union has requested and is requesting it to do so.
The complaint further alleges that Respondent vio-
lated Section 8(a)(5) and (1) of the Act by unilaterally
changing the starting and quitting times for mainte-
nance employees and by unilaterally granting a pay
increase to all unit employees without negotiation
with the Union on its decision or the effect upon unit
employees. Subsequently, Respondent filed its answer
to the complaint admitting in part, and denying in
part, the allegations in the complaint.
On November 25, 1977, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment, with attachments, submitting in
effect that there are no material issues of fact to be
I Official notice is taken of the record in the representation proceeding,
Case 30-RC-3004, as the term "record" is defined in Secs. 102.68 and
102.69(g) of the Board's Rules and Regulations, Series 8, as amended. See
LTV Electrosyslems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (4th Cir.
1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26
(5th Cir. 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va. 1967);
Follett Corp., 164 NLRB 378 (1967), enfd. F.2d 91 (7th Cir. 1968): Sec. 9(d)
of the NLRA, as amended.
determined, and that summary judgment is appropri-
ate. Subsequently, on December 14, 1977, the Board
issued an Order transferring the proceeding to the
Board and a Notice To Show Cause why the General
Counsel's Motion for Summary Judgment should not
be granted. On January 9, 1978, Respondent filed an
opposition to the Motion for Summary Judgment,
with an attached affidavit, contending that questions
of fact exist as to the aforesaid allegations of unilat-
eral changes in the complaint and requesting that the
Motion for Summary Judgment be denied. Subse-
quently, Respondent filed a supplement to its opposi-
tion to the Motion for Summary Judgment, attaching
thereto a decision of the United States Court of Ap-
peals for the Seventh Circuit.
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 in its opposition
to the Motion for Summary Judgment, Respondent
denies the Union's certification, denies the Union's
request and Respondent's refusal to bargain, and de-
nies that it has refused to bargain in good faith with
the Union by unilaterally changing the starting and
quitting times for maintenance employees and by uni-
laterally granting a pay increase to all unit employees
without negotiation with the Union on its decision or
the effect upon unit employees. We grant summary
judgment with respect to the allegations of the com-
plaint that Respondent refused to bargain with the
Union as the exclusive collective-bargaining repre-
sentative of all the employees in the appropriate bar-
gaining unit. We find, however, that genuine issues of
material fact exist as to the allegations of the com-
plaint that Respondent violated the Act by unilater-
ally changing the unit employees' shift schedule and
by unilaterally granting them pay increases. We
therefore remand those issues to the Regional Direc-
tor for hearing thereon.
Respondent refuses to bargain with the Union on
the ground that the unit found by the Board in the
underlying representation proceeding is inappropriate
for collective-bargaining purposes in the health care
field. Respondent relies on the decision of the United
States Court of Appeals for the Seventh Circuit,
N.L.R.B. v. West Suburban Hospital, 570 F.2d 213
(1978).
The maintenance and engineering employees in-
volved herein were found by the Board to have suffi-
ciently distinct community of interest to constitute a
242 NLRB No. 52
442
TRINITY MEMORIAL HOSPITAL OF CUDAHY
separate bargaining unit. In making maintenance unit
determinations in the health care industry, a majority
of the Board has held that the appropriateness of
such units is to be determined on the basis of the test
set forth in American Cyanamid Company, 131 NLRB
909 (1961).2 That test is whether the maintenance
group sought constitutes a "readily identifiable . . .
group whose similarity of function and skills create a
community of interest such as would warrant sepa-
rate representation." Id. at 910. In the underlying rep-
resentation case (230 NLRB 855, 856-857 (1977)), the
Board found that the unit of maintenance and engi-
neering employees was appropriate because they:
are more highly skilled, receive higher wages
than service employees, are separately super-
vised, and do not normally interchange with
other employees. While maintenance employees
necessarily have some contact with other hospi-
tal employees during the course of their work-
day, such contact is not meaningful, sustained
contact. There is no functional integration of
their duties with those of other hospital employ-
ees except perhaps for the limited exceptions
noted.
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or special
circumstances a respondent in a proceeding alleging a
violation of Section 8(a)(5) is not entitled to relitigate
issues which were or could have been litigated in a
prior representation proceeding.'
All issues raised by Respondent in this proceeding
concerning its refusal to bargain with the Union as
the exclusive collective-bargaining representative of
all employees in the appropriate unit were or could
have been litigated in the prior representation pro-
ceeding, and Respondent does not offer to adduce at
2 This position has recently been reaffirmed by the Board in Allegheny
General Hospital, 239 NLRB 872 (1978). Among other things, Allegheny
sought to remove any ambiguity that may have arisen from the Board's
dismissal of maintenance unit requests under circumstances in which a ma-
jority of the Board panel dismissing the petition applied a different test but
constituted a Board majority solely by virtue of the fact that one Board
Member, applying the American Cyanamid test, concluded that the test had
not been [met] in that particular case. See, e.g., Allegheny's discussion of the
decision of the United States Court of Appeals for the Third Circuit in St.
Vincent's Hospital v. N.LR.B.. 567 F.2d 588, fn. 8 (1977). Allegheny also
addressed, at fn. 69, West Suburban, supra. As is evident from Allegheny. the
consistency that is desired in the area of unit determinations is a consistency
of approach, not a consistency of results. The Board's role in making unit
determinations must reflect the obvious fact that no two institutions are
precisely the same, whether health care institution or not. Indeed, that on the
basis of different facts the Board reaches different unit determinations is
persuasive evidence that the Board does not, as the West Suburban court
feared, pay lip service to the congressional admonition, as expressed in the
legislative history of the health care amendments, against unit proliferation
in the industry, just as the Board does not pay lip service to the congressional
command, as expressed in the statute itself, to determine in each case the unit
appropriate for bargaining.
Member Jenkins does not rely on Allegheny for the result reached here.
ISee Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146. 162 (1941):
Rules and Regulations of the Board, Sec. 102.67(f) and Sec. 102.69(c)
a hearing any newly discovered or previously unavail-
able evidence, nor does it allege that any special cir-
cumstances exist herein which would require the
Board to reexamine the decision made in the repre-
sentation proceeding. We therefore find that Respon-
dent has not raised any issue as to these allegations
which is properly litigable in this unfair labor practice
proceeding. Accordingly, we grant the Motion for
Summary Judgment with respect to Respondent's re-
fusal to bargain with the Union as the exclusive col-
lective-bargaining representative of all the employees
in the appropriate bargaining unit.
In its opposition to the Motion for Summary Judg-
ment and the attached affidavit, Respondent contends
that its unilateral wage increase, effective October 2,
1977, did not violate the Act because a wage study
had begun in June 1977; that on July 13, 1977, it was
first notified that a representation election would be
held; and that prior to such notification the peti-
tioned-for unit was held to be inappropriate. Respon-
dent also contends that the alleged unilateral change
in the starting and quitting times for maintenance
employees was not a change but a return to a prior
shift schedule following an unsuccessful experiment
with another schedule which had been requested by
employees.
As it appears that genuine issues of material fact
exist as to Respondent's unilateral actions herein, we
remand the instant case to the Regional Director for
the sole purpose of holding a hearing before an ad-
ministrative law judge to determine whether the al-
leged unilateral wage increase and the alleged unilat-
eral change in the starting and quitting times for
maintenance employees were unfair labor practices as
alleged in the complaint.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, a Wisconsin corporation, is engaged
in the operation of a nonprofit hospital at its Cudahy,
Wisconsin, location. During the past calendar year, a
representative period, Respondent derived gross rev-
enue in excess of $250,000 in the course and conduct
of its business. During the same period Respondent
purchased and received goods and materials valued
in excess of $50,000 directly from suppliers located
outside the State of Wisconsin.
We find, on the basis of the foregoing, that Respon-
dent 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 policies of the Act to assert jurisdiction
herein.
443
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATION INVOLVED
International Union of Operating Engineers, Local
317, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
Ill. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of Respondent constitute
a unit appropriate for collective-bargaining purposes
within the meaning of Section 9(b) of the Act:
All maintenance and engineering employees
employed by Respondent, excluding all other
employees, professional employees, guards and
supervisors as defined in the Act.
2. The certification
On August 12, 1977, a majority of the employees of
Respondent in said unit, in a secret-ballot election
conducted under the supervision of the Regional Di-
rector for Region 30, designated the Union as their
representative for the purpose of collective bargaining
with Respondent. The Union was certified as the col-
lective-bargaining representative of the employees in
said unit on August 22, 1977, and the Union contin-
ues 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 August 23, 1977, and at all times
thereafter, the Union has requested Respondent to
bargain collectively with it as the exclusive collective-
bargaining representative of all the employees in the
above-described unit. Commencing on or about Sep-
tember 28, 1977, and continuing at all times there-
after 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
September 28, 1977, and at all times thereafter, re-
fused to bargain collectively with the Union as the
exclusive representative of the employees in the ap-
propriate unit, and that, by 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 LABOR PRACTICES
UPON COMMERCE
The activities of Respondent, set forth in section
III, above, occurring in connection with its operations
described in section 1, above, have a close, intimate,
and substantial relationship to trade, traffic, and com-
merce among the several States and tend to lead to
labor disputes burdening and obstructing commerce
and the free flow of commerce.
v. THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the mean-
ing 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 ap-
propriate unit, and, if an understanding is reached,
embody such understanding in a signed agreement.
In order to insure that the employees in the appro-
priate unit will be accorded the services of their se-
lected bargaining agent for the period provided by
law, we shall construe the initial period of certifica-
tion as beginning on the date Respondent commences
to bargain in good faith with the Union as the recog-
nized bargaining representative in the appropriate
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 Con-
struction 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:
CONCLUSIONS OF LAW
1. Trinity Memorial Hospital of Cudahy, Inc., is
an employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. International Union of Operating Engineers,
Local 317, AFL-CIO, is a labor organization wthin
the meaning of Section 2(5) of the Act.
3. All maintenance and engineering employees em-
ployed by Respondent, excluding all other employees,
professional employees, guards, 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 August 22, 1977, the above-named labor
organization has been and now is the certified and
exclusive 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.
444
TRINITY MEMORIAL HOSPITAL OF CUDAHY
5. By refusing on or about September 28, 1977,
and at all times thereafter, to bargain collectively
with the above-named labor organization as the ex-
clusive 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, Respondent
has interfered with, restrained, and coerced, and is
interfering with, restraining, and coercing, employees
in the exercise of the rights guaranteed them in Sec-
tion 7 of the Act, and thereby 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 mean-
ing 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 Rela-
tions Board hereby orders that the Respondent, Trin-
ity Memorial Hospital of Cudahy, Inc., Cudahy, Wis-
consin, 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 con-
ditions of employment with International Union of
Operating Engineers, Local 317, AFL-CIO, as the
exclusive bargaining representative of its employees
in the following appropriate unit:
All maintenance and engineering employees
employed by the Respondent, excluding all other
employees, professional employees, guards and
supervisors as defined in the Act.
(b) In any like or related 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 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 understand-
ing is reached, embody such understanding in a
signed agreement.
(b) Post at its Cudahy, Wisconsin, facility copies of
the attached notice marked "Appendix." 4 Copies of
I 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 b 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."
said notice, on forms provided by the Regional Direc-
tor for Region 30, after being duly signed by Respon-
dent's representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said no-
tices are not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director for Region 30, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
IT IS FURTHER ORDERED that the instant proceeding
be, and it hereby is, remanded to the Regional Direc-
tor for Region 30 for the sole purpose of holding a
hearing before an administrative law judge to deter-
mine whether or not the alleged unilateral wage in-
crease and the alleged unilateral change in the start-
ing and quitting times for maintenance employees
were unfair labor practices as alleged in the com-
plaint.
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
concerning rates of pay, wages, hours, and other
terms and conditions of employment with Inter-
national Union of Operating Engineers, Local
#317, AFL-CIO, as the exclusive representative
of the employees in the bargaining unit described
below.
WE WILL NOT in any like or related 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 representa-
tive of all employees in the bargaining unit de-
scribed below, 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. The bargaining unit is:
All maintenance and engineering employees
employed by the Employer, excluding all
other employees, professional employees,
guards and supervisors as defined in the Act.
TRINITY MEMORIAL HOSPITAL OF CUDAHY,
INC.
445