Anne Arundel General Hospital

National Labor Relations Board - Board Decisions

Nov 4, 1975

221 N.L.R.B. 305 (N.L.R.B. 1975)

ANNAPOLIS EMERGENCY HOSPITAL ASSOC. 305
Annapolis Emergency Hospital Association, Inc.,
d/b/a Anne Arundel General Hospital and. Mary-
land Nurses - Association, Inc., affiliated with The
American Nurses Association, Inc. Case 5-CA-
7394
November 4, 1975
DECISION AND ORDER
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 Notice To Show Cause.
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.
Upon the entire record in this proceeding, the
Board makes the following:
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND JENKINS
Upon a charge filed on July 15, 1975, by Maryland-
Nurses Association, Inc., affiliated with The Ameri-
can Nurses Association, Inc., _ herein called the
Union, and duly served on July 16, 1975, on
Annapolis Emergency .Hospital Association, Inc.,
d/b/a Anne Arundel General Hospital, herein called
the Respondent, the General Counsel of the National
Labor Relations Board, by the Regional Director for
Region 5 , issued a complaint on July 24, 1975,
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
complaint alleges in substance that on June 6, 1975,
following a Board election in Case 5-RC-9128 the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate; I and that, commenc-
ing on or about July 14, 1975, 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 of Respon-
dent's employees in such unit, although the- Union
has requested and is requesting it to do' so. On
August 1, 1975, Respondent filed its answer to' the
complaint admitting in part, and denying in part, the
allegations in the complaint.
On August 19, 1975, counsel for the General
Counsel filed directly with the' Board a Motion for
Summary Judgment, submitting that the Respondent
is seeking to relitigate issues which the parties fully
and exhaustively have litigated previously, in Case 5-
RC-9128. Subsequently, on September 8; `1975, the
Board issued an order- tralisferrmg the proceeding to
1 Official notice is taken of the, record.m the representation proceeding,
Case 5-RC-9128, 217 NLRB N. 148 (1975), 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 (C.A. 4; 1968); Golden Age Beverage Co., 167 NLRB 151
221 NLRB No. 39
Ruling on the Motion for Summary Judgment
In its answer to the complaint and,in its response to
the Notice To Show Cause, Respondent contends
that ' the Union's' certification must ' be°' rescinded
because it is controlled by supervisors and that the
election conducted on May 29, 1975, must be set
aside because the Board erroneously directed 'that
PRN nurses be permitted to vote as regular part-time'
employees without challenge. We find that Respon-
dent's contentions in these respects are identical to
those which it raised, and which were"litigated and
decided in the underlying representation proceeding,
and must accordingly be denied:,
The' record in Case 5-RC-9128 shows- that on
February 21, 1975, after a hearing in which Respon-
dent participated, the case was transferred to the
Board for -decision. The Board found that the PRN
nurses - were , regular part-time ., employees ' , (even
though their work , schedules were - not, prearranged)
and that there;was insufficient ^ evidence to, warrant
their exclusion from the unit of professional nurses
found appropriate . Further , the Board found no
merit in the contention that the Union was dominat-
ed or controlled by supervisors, finding inter alia that
the parties had stipulated"that no supervisors hired
by the Employer were included among the Union's
officers and directors. -
It is well settled 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(a)(5) is not entitled
to relitigate issues which were or could have been
litigated in a prior representation proceeding.?
All issues , raised by the Respondent .in this
proceeding were or could have been . litigated in the
prior representation proceeding, and the Respondent
does not offer to adduce. at' ,a hearing any newly
discovered or, previously unavailable evidence, nor
does it allege that -any special circumstances" exist
herein which would require theft Board -to reexamine
(1967), enfd. 415 F.2d 26 (C.A. 5, 1969); Intertype Co. v. Penello, 269
F.Supp 573 (D.C Va., 1967); Follett Corp., 164 NLRB 378 (1967), enfd. 397
F.2d 91 (CA 7,1968); Sec 9(d) of the NLRA.
2 See Pittsburgh Plate Glass"Co..v. N.L.R.B,, 313 U.S. 146, 462 (1941);
Rules and Regulations of the Board, Secs. 102.67(.g) and 102.69(c).
306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the decision made in the representation proceeding.
We therefore find that the Respondent has not raised
any issue which is properly litigable in this unfair
labor practice proceeding. We shall, accordingly,
grant the Motion for Summary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
conducted under the supervision of the Regional
Director for Region 5, designated the Union as their
representative for the purpose of collective bargain-
ing with the Respondent. The Union was certified as
the collective-bargaining representative of the em-
ployees in said unit on June 6, 1975, and the Union
continues to be such exclusive representative within
the meaning of Section 9(a) of the Act.
1. THE BUSINESS OF THE RESPONDENT
Respondent, a Maryland corporation, is a nonpro-
fit hospital engaged in community health care in
Annapolis, Maryland. During the preceding 12
months, a representative period, Respondent derived,
from its operations, gross revenue in excess of
$250,000. During the same period Respondent
purchased and received goods valued in excess of
$50,000 directly from points located outside the State
of Maryland.
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 policies of the Act to assert
jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Maryland Nurses Association, Inc., affiliated with
The American Nurses Association, Inc., is a labor
organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of the Respondent
constitute a unit appropriate for collective-bargain-
ing purposes within the meaning of Section 9(b) of
the Act:
All full-time and regular part-time registered
nurses employed by the Employer at its Franklin
and Cathedral Streets, Annapolis, Maryland,
location, but excluding all office clerical employ-
ees, all other employees, guards, patient care
supervisors, evening and night supervisors, the
I.V. therapy supervisor, coordinators, and all
other supervisors as defined in the Act.
2. The certification
On May 29, 1975, a majority of the employees of
Respondent in said unit, in a secret ballot election
B. The Request To Bargain and Respondent's
Refusal
On or about July 14, 1975, in anticipation of a
request to bargain, Respondent notified the Union
by letter that it declined to recognize and bargain
with the Union as the exclusive collective-bargaining
representative of all the employees in the above-
described unit and, commencing on or about the
aforementioned date and continuing at all times
thereafter to date, the 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 the Respondent has,
since on or about July 14, 1975, and at all times
thereafter, refused to bargain collectively with the
Union as the exclusive representative of the employ-
ees in the appropriate unit, and that, by such refusal,
Respondent has engaged 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
III, above , occurring in connection with its opera-
tions described in section 1, above, have a close,
intimate , and substantial relationship to trade,
traffic , and commerce among the several States and
tend to lead to labor disputes burdening and
obstructing 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
appropriate unit will be accorded the services of their
selected bargaining agent for the period provided by
ANNAPOLIS EMERGENCY HOSPITAL ASSOC.
law, we shall construe the initial period of certifica-
tion as beginning on the date Respondent com-
mences to bargain -in good faith with the Union as
the recognized 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 (C.A. 5, 1964), -cert. denied 379 U.`S. - 817
(1964); Burnett Construction Company, 149 NLRB
1419, 1421 (1964), enfd. 350 F.2d 57 (C.A. 10, 1965).
The Board, upon the basis of the foregoing facts
and, the entire-record, makes the following:
CONCLUSIONS OF LAW
1. Annapolis - Emergency Hospital Association,
Inc., d/b/a Anne, Arundel General Hospital, is an
employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. Maryland Nurses Association, Inc., affiliated
with The American- Nurses Association, Inc., is a
labor organization within the meaning of Section 2(5)
of the Act.
3. All full-time and- regular part-time registered
nurses employed by the Employer at its Franklin and
Cathedral Streets, Annapolis, Maryland, location,
but excluding all office clerical employees, all other
employees, guards, patient care supervisors, evening
and night supervisors, the I.V. therapy supervisor,
coordinators, and all other 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 June 6, 1975, the above-named labor
organization has been and now is 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 July 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, Respon-
dent has interfered with, restrained, and coerced, and
is interfering with, restraining, and coercing, employ-
ees 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)(1) of the Act.
3 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
307
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
Relations Board hereby orders that Respondent,
Annapolis Emergency Hospital Association, Inc.,
d/b/a Anne Arundel General Hospital, Annapolis,
Maryland, its officers, agents, successors, and - as-
signs, 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 Maryland Nurses
Association, Inc., affiliated with The American
Nurses Association, Inc, as the exclusive bargaining
representative of its employees in the following
appropriate unit:
All full-time and regular part-time registered
nurses employed by the Employer at its Franklin
and Cathedral Streets, Annapolis,' Maryland,
location, but excluding all office clerical employ-
ees, and all other employees, guards, patient care
supervisors, evening and night supervisors, the
I.V. therapy supervisor, coordinators, and all
other 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 under-
standing is reached, embody such understanding in a
signed agreement.
(b) Post at its Franklin and Cathedral Streets,
Annapolis, Maryland, location copies of the attached
notice marked "Appendix." 3 Copies of said notice,
on forms provided by the Regional Director for
Region 5, 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 conspicu-
ous places, including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director for Region 5, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
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 Mary-
land Nurses Association, Inc., affiliated with The
American Nurses Association, Inc. as the exclu-
sive representative of the employees in the
bargaining umt 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
described 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 agree-
ment. The bargaining umt is:
All full-time and regular part-time regis-
tered nurses employed by the Employer at
its Franklin and Cathedral Streets, Annapo-
lis, Maryland, location, but excluding all
office clerical employees, all other employ-
ees, guards, patient care supervisors, evening
and night supervisors, the I.V. therapy
supervisor, coordinators, and all other super-
visors as defined in the Act.
ANNAPOLIS EMERGENCY
HOSPITAL ASSOCIATION,
INC., D/B/A ANNE
ARUNDEL GENERAL
HOSPITAL