Valley View Hospital

National Labor Relations Board - Board Decisions

Sep 30, 1980

252 N.L.R.B. 1146 (N.L.R.B. 1980)

1146
Valley View Hospital and Valley View Professional
Employees Association. Case 27-CA-6743
September 30, 1980
DECISION AND ORDER REMANDING
PROCEEDING TO REGIONAL
DIRECTOR
BY CHAIRMAN FANNING AND MEIMBERS
JENKINS AND PNELILO
Upon a charge filed on May 28, 1980, by Valley
View Professional Employees Association, herein
called the Union, and duly served on Valley View
Hospital, herein called Respondent, the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 27, issued a com-
plaint on June 26, 1980, against Respondent, alleg-
ing that Respondent had engaged in and was en-
gaging 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 Rela-
tions Act, as amended. Copies of the charge and
complaint and notice of hearing before an adminis-
trative 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 May 23,
1979, following a Board election in Case 27-RC-
5808, the Union was duly certified as the exclusive
collective-bargaining representative of Respon-
dent's employees in the unit found appropriate; and
that, commencing on or about May 11, 1980, and
at all times thereafter, Respondent has refused, and
continues to date to refuse, to bargain collectively
with the Union as the exclusive bargaining repre-
sentative, although the Union has requested and is
requesting it to do so.' On July 3, 1980, Respon-
dent filed its answer to the complaint admitting in
part, and denying in part, the allegations in the
complaint.
On July 16, 1980, counsel for the General Coun-
sel filed directly with the Board a Motion for Sum-
mary Judgment. Subsequently, on July 28, 1980,
the Board issued an order transferring the proceed-
ing to the Board and a Notice To Show Cause
why the General Counsel's Motion for Summary
Judgment should not be granted. Respondent
thereafter filed a response to the Notice To Show
Cause.
I Official notice is laken of the record in the represeltatiol pr{oceed-
ing, Case 27 RC58X(8, as the ecrm "record" is defined in Secs 1)2.68
and 102 6h9(g) f the Board's Rules and Regulations, Series 8, as amended
See LT' Elciroylem, Inc., 16 NlRH 938 (1967), enfd 388 F2d 683
(4th Cir. 1968); Golden ,4ge Beverage Co., 167 NI.RB 151 (1967), enfd 415
F.2d 26 (5th Cir 1969) Ilnierrvpe Co v Punello, 269 F.Supp 573
(DC Va 19h67); ollhll Corp, 164 Nl.RB 378 (1ih7). enfd 397 F2d 91
(71h Cir 1968); Sec 9(d) of the NL.RA, as anllded
252 NLRB No. 160
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
The General Counsel argues in support of the
Motion for Summary Judgment that the election of
April 19, 1979, was conducted pursuant to a Stipu-
lation for Certification Upon Consent Election.
The Union having won such election, the Regional
Director certified it as the exclusive bargaining
representative of the employees in said unit. The
General Counsel further alleges that Respondent
has since refused to bargain collectively with or
recognize the Union as the representative of the
unit employees; and has offered no newly discov-
ered evidence, or evidence not previously available
to it in the underlying representation case.
Respondent on the other hand argues that the
Regional Director has certified the Union as repre-
sentative for an inappropriate unit, contrary to the
mandatory provisions of Section 9(b)(l) of the Act,
after having accepted a stipulation between the
parties which does not conform to the facts of the
case; conflicts with the laws of the State of Colora-
do; and violates Section 9(b)(1) of the Act, and es-
tablished Board Policy. Respondent argues, there-
fore, that the Board should deny the Motion for
Summary Judgment.
The stipulated unit between the parties was com-
posed of the following employees:
Registered nurses, licensed practical nurses,
laboratory personnel, respiratory therapy per-
sonnel, physical therapy personnel, X-ray per-
sonnel, clinical dietician, central sterile supply
aides, operating room technicians and aides.
EXCLUDED: Housekeeping personnel, pro-
fessional employees, office clerical employees,
confidential employees, maintenance employ-
ees, laundry employees, cooks and food ser-
vice workers, guards and supervisors as de-
fined in the Act.
In his discussion of the unit composition, the Re-
gional Director noted that the unit included regis-
tered nurses, who as professional employees under
the Act normally would be entitled under Section
9(b)(l) of the Act to vote on a separate ballot as to
their wish to be included in a unit with nonprofes-
sional employees. In view of the stipulation of the
parties, however, the Regional Director found the
unit to be appropriate for the purposes of collective
bargaining.
VALIT.IN VW HOSPITALA I
VAI.I.EY VIEW HOSPITAL,
It is settled Board policy to accept stipulations
from the parties as to composition of the unit,
unless such stipulations are contrary either to statu-
tory provisions of the Act, or established Board
policy. 2
Section 9(b) of the Act states that "the Board
shall not (1) decide that any unit is appropriate . . .
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."
Moreover, the Board has traditionally found
many unit employees to be professional employees
under the Act. 3 As such, they cannot be included
in a unit with nonprofessional employees, absent
their vote in favor of such inclusion.4
2 he Tribune Company, 190 NLRB 39K (1971)
:' Mercy Hospitals of Sacranento. Inc., 217 NLRB 765 (975) See also
Colorado Professional Nursing Practice Act, CRS 1973. 12 38-201, ct
seq.
4 Sonolone Corporation, 90 NLRB 1236 (1950); Catholic Charitlls of
Buffalo, Ne.w York, Inc,. 220 N..RB (1975)
There was no testimony presented at the repre-
sentation hearing which would indicate they were
technical employees, or performed duties different
from those implied in their job classification. The
stipulation, alone, cannot override the mandate of
the statute regarding the inclusion of professional
employees in a nonprofessional unit, or that of es-
tablished Board policy.
Accordingly, we deny the Motion for Summary
Judgment.
ORDER
It is hereby ordered that the above-entitled pro-
ceeding be, and it hereby is, remanded to the Re-
gional Director for Region 27 for further appropri-
ate action.
1147