Yonkers General Hospital

National Labor Relations Board - Board Decisions

Jun 29, 1979

243 N.L.R.B. 226 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Yonkers General Hospital and International Union of
Operating Engineers, Local 30, 30A, AFL-CIO.
Case 2-CA- 16315
June 29, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENEI.ILO
Upon a charge filed on March 14, 1979, by Inter-
national Union of Operating Engineers, Local 30,
30A, AFL-CIO, herein called the Union, and duly
served on Yonkers General Hospital, herein called
Respondent, the General Counsel of the National La-
bor Relations Board, by the Regional Director for
Region 2, issued a complaint and notice of hearing on
March 23, 1979, against Respondent, alleging that
Respondent had engaged in and was engaging in un-
fair labor practices affecting commerce within the
meeting 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 February 20,
1979, following a Board election in Case 2 RC
17926, 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 March 1, 1979, and at all
times thereafter Respondent has refused and contin-
ues to date to refuse to bargain collectively with the
Union as the exclusive bargaining representative, al-
though the Union has requested and is requesting it
to do so. On April 2, 1979, Respondent filed its an-
swer to the complaint admitting in part, and denying
in part, the allegations in the complaint.
On April 19, 1979, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment. Subsequently, on April 25, 1979, the
Board issued an Order transferring the proceeding to
the Board and a Notice To Show Cause why the Gen-
eral Counsel's Motion for Summary Judgment should
not be granted. Respondent thereafter filed a re-
sponse to Notice To Show Cause.
I Official notice is taken of the record in the representation proceeding,
Case 2-RC-17926, 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 Electrosystems, Inc., 166 NLRB 938 (1967). enfd. 388 F.2d 683 (4th Cir.
1968); Golden Age Beverage Co., 167 NLRB I51 (1967). enfd. 415 F.2d 26
(5th Cir. 1969): Intertype Co. v. Penello, 269 F. Supp. 573 (D.C. Va. 1967);
Foller Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968); Sec.
9(d) of the NLRA, as amended.
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 and thereafter in its opposition to the
General Counsel's Motion for Summary Judgment,
Respondent denies the appropriateness of the unit
and contends that an appropriate unit would consist
of all service and maintenance employees. In his Mo-
tion for Summary Judgment, counsel for the General
Counsel contends that Respondent seeks to relitigate
matters previously considered by the Board and
found to be lacking in substance and that there are no
new factual issues which warrant a hearing. We agree
with the General Counsel.
Review of the record, including that of the repre-
sentation proceeding, Case 2 RC-17926, shows that
at the hearing on the Union's petition for a unit of all
employees of the engineering and skilled maintenance
department, Respondent opposed such a unit on
three grounds: (I) that the Board has held that sepa-
rate engineering and maintenance units are inappro-
priate in the health care industry; (2) that the United
States circuit courts of appeals have affirmed these
Board decisions; and (3) that such a unit would be
contrary to the congressional mandate against undue
proliferation of units in the health care industry. On
May 25, 1978, the Regional Director issued a decision
and direction of election finding that Respondent's
engineering and maintenance employees constitute a
homogeneous unit whose employees share a commu-
nity of interest sufficiently separate and apart from
the rest of Respondent's service employees to justify
separate representation. In its request for review of
the Regional Director's decision and direction, Re-
spondent reiterated its position that a decision finding
appropriate a unit composed solely of engineering
and maintenance employees is contrary to prior deci-
sions and to the congressional mandate. Respondent
also argued that the Regional Director erroneously
determined that the engineering and maintenance de-
partment employees possess a community of interest
separate and apart from other service and mainte-
nance employees. On June 27, 1978, the Board
granted Respondent's request for review, but on
January 29, 1979, the Board issued an Order affirm-
ing the Regional Director's unit determination. That
Order stated that subsequent to the grant of review
the Board issued a Supplemental Decision and Order
in Allegheny General Hospital, 239 NLRB 872 (1978),
which set forth in detail the reasons for the policy
243 NLRB No. 42
226
YONKERS GENERAL HOSPITAL
determination that hospital maintenance employees
may constitute an appropriate bargaining unit under
the health care amendments to the Act. Furthermore,
the Order reiterated that a majority of the Board in
Allegheny General Hospital found that the standard
for determining the appropriateness of such a unit is
the traditional community-of-interest test of Ameri-
can Cyanamid Company', 131 NLRB 909 (1961). Ap-
plying these standards, the Board thereby determined
that the Regional Director's unit determination was
appropriate. In the instant case Respondent again
questions the appropriateness of the unit. In so doing
Respondent raises no issue that it did not raise in the
representation proceeding.
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.2
All issues raised by Respondent in this proceeding
were or could have been litigated in the prior repre-
sentation proceeding, and Respondent does not offer
to adduce at a hearing any newly discovered or previ-
ously unavailable evidence, nor does it allege that any
special circumstances exist herein which would re-
quire the Board to reexamine the decision made in
the representation proceeding. We therefore find that
Respondent has not raised any issue which is prop-
erly litigable in this unfair labor practice proceeding.
Accordingly, we grant the Motion for Summary
Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, a health care institution within the
meaning of Section 2(14) of the Act, is a New York
corporation engaged in operating an acute care hospi-
tal at 2 Park Avenue, Yonkers, New York. In the
normal course and conduct of its business operations
during the past 12-month period, which period is rep-
resentative, Respondent had gross revenue in excess
of $1 million and purchased and received goods val-
ued in excess of $50,000 directly from suppliers lo-
cated outside the State of New York.
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
2See Pittsburgh Plate Glass Co v. N.LR.B., 313 U.S. 146, 162 (1941):
Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c)
effectuate the policies of the Act to assert jurisdiction
herein.
II. tE .ABO()R ORGANIZATION INV)I.VI )
International Union of Operating Engineers, Local
30, 30A, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
Ill. IHE 'NIFAIR I.ABOR PRA('II(ES
A. The Representation Proceeding
I. The unit
The following employees of Respondent constitute
a unit appropriate fr collective-bargaining purposes
within the meaning of Section 9(b) of the Act:
All full-time and regular part-time engineering
and maintenance department employees, includ-
ing firemen/engineers, engineering foremen, en-
gineering assistants, maintenance mechanics,
electricians, maintenance helper, carpenters,
painters, groundskeepers/gardeners employed
by Respondent at its Yonkers, New York, hospi-
tal, but excluding all other employees, profes-
sional employees, guards and supervisors as de-
fined in the Act.
2. The certification
On February 9, 1979, 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 2, 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 February 20, 1979, and the Union con-
tinues to be such exclusive representative within the
meaning of Section 9(a) of the Act.
B. The Request To Bargain and Respondent's ReJiusal
Commencing on or about February 23, 1979, and
at all times thereafter the Union has requested Re-
spondent to bargain collectively with it as the exclu-
sive collective-bargaining representative of all the em-
ployees in the above-described unit. Commencing on
or about March 1, 1979, and continuing at all times
thereafter to date, Respondent has refused and con-
tinues 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
March 1, 1979, and at all times thereafter, refused to
227
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargain collectively with the Union as the exclusive
representative of the employees in the appropriate
unit, and that by such refusal Respondent has en-
gaged in and is engaging in unfair labor practices
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
111, 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. Yonkers General Hospital is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. International Union of Operating Engineers,
Local 30, 30A, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. All full-time and regular part-time engineering
and maintenance department employees, including
firemen/engineers, engineering foremen, engineering
assistants, maintenance mechanics, electricians, main-
tenance helper, carpenters, painters, groundskeepers/
gardeners employed by Respondent at its Yonkers,
New York, hospital, but excluding all other employ-
ees, 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 February 20, 1979, 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.
5. By refusing on or about March 1, 1979, and at
all times thereafter to bargain collectively with the
above-named labor organization as the exclusive bar-
gaining representative of all the employees of Re-
spondent in the appropriate unit, Respondent has en-
gaged 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 in-
terfering with, restraining, and coercing employees in
the exercise of the rights guaranteed to 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, Yon-
kers General Hospital, Yonkers, New York, its offi-
cers, 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 30, 30A, AFL-CIO, as
the exclusive bargaining representative of its employ-
ees in the following appropriate unit:
All full-time and regular part-time engineering
and maintenance department employees, includ-
ing firemen/engineers, engineering foremen, en-
gineering assistants, maintenance mechanics,
electricians, maintenance helper, carpenters,
painters, groundskeepers/gardeners, employed
by Respondent at its Yonkers, New York, hospi-
tal, but excluding all other employees, profes-
sional employees, guards and supervisors as de-
fined in the Act.
228
YONKERS GENERAL HOSPITAL
(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 Yonkers, New York, hospital copies
of the attached notice marked "Appendix." Copies
of said notice, on forms provided by the Regional
Director for Region 2, after being duly signed by Re-
spondent's representative, shall be posted by Respon-
dent immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in
conspicuous places, including 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 2, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
MEMBER PENELLO, dissenting:
For the reasons set forth in my dissenting opinion
in Allegheny General Hospital, 239 NLRB 872, 1
would reverse the Regional Director's unit determina-
tion, dismiss the petition, and therefore deny the Gen-
eral Counsel's Motion for Summary Judgment.
'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 Pursuant to a Judgment
of the United States Court of Appeals Enforcing an order of the National
Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEF S
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WIL 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
30, 30A, AFL-CIO, as the exclusive representa-
tive of the employees in the bargaining unit de-
scribed 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 full-time and regular part-time engineer-
ing and maintenance department employees,
including firemen/engineers, engineering fore-
men, engineering assistants, maintenance me-
chanics, electricians, maintenance helper, car-
penters, painters, groundskeepers/gardeners
employed by Respondent at its Yonkers, New
York, hospital, but excluding all other em-
ployees, professional employees, guards and
supervisors as defined in the Act.
YONKERS GENERAL HOSPITAL
229