Doctors Hospital of Modesto

National Labor Relations Board - Board Decisions

May 24, 1974

210 N.L.R.B. 894 (N.L.R.B. 1974)

894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
National Medical Hospital of Modesto , Inc., d/b/a
Doctors Hospital of Modesto and Stationary
Engineers, Local Union No. 39, International
Union of Operating Engineers, AFL-CIO. Case
20-CA-8866
May 24, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
Upon a charge filed on January 3, 1974, by
Stationary Engineers, Local Union No. 39, Interna-
tional Union of Operating Engineers, AFL-CIO,
herein called the Union, and duly served on National
Medical Hospital of Modesto, Inc., d/b/a Doctors
Hospital of Modesto, herein called the Respondent,
the General Counsel of the National Labor Relations
Board, by the Regional Director for Region 20,
issued a complaint on February 11, 1974, 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 November 7,
1973, following a Board election in Case
20-CA-11306, the Union was duly certified as the
exclusive collective-bargaining representative of Res-
pondent's employees in the unit found appropriate; i
and that, commencing on or about November 28,
1973, and at all times thereafter, Respondent has
refused, and continues to date to refuse, to bargain
collectively with the Union as the exclusive bargain-
ing representative, although the Union has requested
and is requesting it to do so. On February 20, 1974,
Respondent filed its answer to the complaint
admitting in part, and denying in part, the allegations
in the complaint.
On March 7, 1974, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment. Subsequently, on March 13, 1974, 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. Respondent thereafter filed a
response to Notice To Show Cause, entitled "Res-
pondent's Answer 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:
Ruling on the Motion for Summary Judgment
In its answer to the complaint and response to the
Notice To Show Cause, the Respondent denies that
in the underlying representation Case 20-RC-11306
a majority of the unit employees designated and
selected the Union as their exclusive representative
for the purposes of collective bargaining with the
Respondent because the challenged ballot of an
allegedly ineligible employee was determinative of
the Union's majority.
Our review of the record, including the record in
Case 20-RC-11306, reflects that, in the election
conducted on June 8, 1973, pursuant to a Stipulation
for Certification Upon Consent Election, four ballots
were cast for, and four against, the Union, with one
ballot, that of Edward T. Childress, challenged by
the Board agent because Childress' name was not on
the eligibility list. Since that ballot was sufficient to
affect the results of the election, the Regional
Director conducted an investigation of the challenge.
On July 3, 1973, he issued his Report on Challenged
Ballot in which he recommended that the challenge
be overruled. He found that Childress had been
injured and hospitalized and that Doctor Baker, who
was caring for Childress, did not anticipate his return
to work in the "foreseeable future." On the other
hand, The Regional Director also found that there
was no evidence that Childress had been terminated
or was not on sick leave on the day of the election
and that there was evidence indicating that Childress
was eligible on the payroll election day. While
conceding that it was arguable that Childress may
not ever return to work, the Regional Director noted
that Dr. Baker did not so state and that Dr. Baker's
term "foreseeable future" was a very wide term.
Accordingly, he found that Childress shared and
retained a substantial interest in the terms and
conditions of employment on election day and
therefore met the eligibility requirements for voting.
The Respondent filed with the Board timely
exceptions to the report. After considering the entire
record in the case, the Board panel, with Chairman
Miller dissenting, issued on October 19, 1973, its
Official notice is taken of the record in the representation proceeding , Golden Age Beverage Co, 167 NLRB 151, enfd 415 F 2d 26 (C A 5, 1969):
Case 20-RC-11306, as the term "record" is defined in Secs 102 68 and Intertype Co v Penello, 269 F Supp 573 (D C Va, 1967), Follett Corp, 164
102.69(f) of the Board's Rules and Regulations , Series 8, as amended . See NLRB 378, enfd 397 F 2d 91 (C.A 7, 1968 ), Sec 9(d) of the NLRA.
LTV Electrosystems, Inc, 166 NLRB 938, enfd 388 F 2d 683 (C A 4, 1968),
210 NLRB No. 117
DOCTORS HOSPITAL OF MODESTO 895
Decision and Order Directing the Regional Director
to Open and Count Challenged Ballot and Certify
Results of the Election which, in footnote 3, states as
follows:
The Employer's exceptions, in our opinion,
raise no material issue of fact or law which would
warrant reversal of the Regional Director's
findings and recommendations. It is well settled
Board law that an employee who is on sick leave
and who has not been severed from the payroll or
has not quit or has not been terminated is eligible
to vote. See Wright Manufacturing Co., 106 NLRB
1234; 1236; Sandy's Stores, 163 NLRB 728, 742.
Since the employee herein had not, as of the time
of the election, been removed from the payroll
nor had any severence of employment in fact
occurred, the Employer's exceptions which mere-
ly allege the Employer's intent to sever the work
relationship are without merit.
Pursuant to the Board's direction, the Regional
Director opened and counted Childress' ballot and
on October 29, 1973, issued a revised tally of ballots
which showed that five ballots had been cast for, and
four against, the Union. Accordingly, in the absence
of objections to the revised tally, the Acting Regional
Director certified the Union on November 7, 1973.
In the instant proceeding, it thus appears that the
Respondent is seeking to relitigate matters which
were previously raised, and determined adversely to
the Respondent by the Board, in the underlying
representation proceeding.
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.2
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,3 nor
does it allege that any special circumstances exist
herein which would require the Board to reexamine
the decision made in the representation proceeding.
We therefore find that the Respondent has not raised
2 See Pittsburgh Plate Glass Co v N L.R B, 313 US 146, 162 (1941),
Rules and Regulations of the Board , Secs 102.67(1) and 102 69(c)
3 Among the attachments to Respondent 's response to the Notice To
Show Cause are two documents, one, a letter dated November 7, 1973, from
Dr Baker stating , inter alga, that he did not feel that Childress "is capable of
returning to his former occupation" at the Respondent 's hospital , and two, a
referee 's "Opinion Order" of February 8, 1974, approving compromise and
release of Childress' workmen 's compensation claim against the Respondent
ansing from his injury The Respondent asserts that these documents,
constituting new evidence not previously available , require the holding of a
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
I. THE BUSINESS OF THE RESPONDENT
Respondent, a California corporation, with a place
of business located at Modesto, California, is
engaged in the operation of a proprietary hospital.
During the past year, in the course and conduct of its
business operations, Respondent received gross
revenues in excess of $500,000, of which more than
$50,000 was derived from nationwide health organi-
zations, including Blue Cross, the United States
Department of Health, Education and Welfare, and
the State of California.
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
Stationary Engineers , Local Union No. 39 , Inter-
national Union of Operating Engineers , AFL-CIO,
is a labor organization within the meaning of Section
2(5) of the Act.
111. 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 maintenance engineers employed by the
Employer at its Modesto, California, location;
excluding all other employees, employees em-
ployed by other employers, guards, and supervi-
sors as defined in the Act.
hearing We do not agree In resolving challenges to an election we must
confine ourselves to an examination of the situation as it is at the time of the
election At that time Childress was on sick leave and therefore eligible to
vote. Respondent apparently would have us determine the challenge, at
least in part , by examining whether the employee subsequent to the election
returned to work. Stability in the collective-bargaining process requires that
election results be determined as quickly as possible To resolve challenges
of this type by waiting to see whether the employee in fact returns to work
could only unnecessarily prolong the election and result in instability in the
collective-bargaining process
896 DECISIONS OF NATIONAL
2. The certification
On June 8, 1973, a majority of the employees of
Respondent in said unit, in a secret ballot election
conducted under the supervision of the Regional
Director for Region 20 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 November 7, 1973, and the
Union continues 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 or about November 8, 1973, and
at all times thereafter, the Union has requested the
Respondent to bargain collectively with it as the
exclusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about November 28, 1973, 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 November 28, 1973, and at all times thereafter,
refused to bargain collectively with the Union as the
exclusive representative of the employees in the
appropriate unit, and that, by such refusal, Respon-
dent 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 I, 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.
LABOR RELATIONS BOARD
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
law, we shall construe the initial period of certifica-
tion as beginning on the date Resp dent commenc-
es to bargain in good faith with t e Union as the
recognized bargaining representativ in the appropri-
ate 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. National Medical Hospital of Modesto, Inc.,
d/b/a Doctors Hospital of Modesto, is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Stationary Engineers, Local Union No. 39,
International Union of Operating Engineers,
AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. All maintenance engineers employed by the
Employer at its Modesto, California, location;
excluding all other employees, employees employed
by other employers, 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 November 7, 1973, the above-named
labor organization Chas been and now is the certified
and exclusive representative of all employees in the
aforesaid appropriate unit for the purpose of collec-
tive bargaining within the meaning of Section 9(a) of
the Act.
5. By refusing on or about November 28, 1973,
and at all times thereafter, to bargain collectively
with the above-named labor organization as the
exclusive bargaining representative of all the employ-
ees of Respondent in the appropriate unit, Respon-
dent 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.
7. The aforesaid unfair labor practices are unfair
DOCTORS HOSPITAL OF MODESTO 897
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,
National Medical Hospital of Modesto, Inc., d/b/a
Doctors Hospital of Modesto, Modesto, California,
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 Stationary Engineers,
Local Union No. 39, International Union of Operat-
ing Engineers, AFL-CIO, as the exclusive bargaining
representative of its employees in the following
appropriate unit:
All maintenance engineers employed by the
Employer at its Modesto, California, location;
excluding all other employees, employees em-
ployed by other employers, guards, and supervi-
sors 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 Modesto, California, location copies
of the attached notice marked "Appendix."4 Copies
of said notice, on forms provided by the Regional
Director for Region 20 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 thereaft-
er, in conspicuous places, including all places where
notices to employees are customarily posted. Reason-
able 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 20 in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
a 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 "
CHAIRMAN MILLER , dissenting:
In the Board ' s Decision and Order in Case
20-RC-11306, I stated that I would not "adopt and
follow a mechanically applied rule that an employee
on sick leave who has not quit or been terminated is
per se eligible to vote ." There was evidence that
Childress had no reasonable expectance in the
foreseeable future of returning to active employment
and, therefore , his interest in employment conditions
was remote and intangible . Since I believe it would
have been patently unfair to permit Childress to cast
the decisive vote and thus affect the future of
employees who had a real and personal interest in
the election , I would have sustained the challenge to
his ballot and not have permitted his vote to
determine the outcome of the election . While I agree
with my colleagues that a hearing is not required on
the basis of the Respondent 's new and previously
unavailable evidence , I merely note that this evidence
supports and reinforces my dissenting position. In
these circumstances , I would not find that the
Respondent violated Section 8(a)(5) and ( 1) of the
Act by refusing to bargain with the Union, and,
accordingly , would deny the General Counsel's
Motion for Summary Judgment.
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, hours, and other terms
and conditions of employment with Stationary
Engineers, Local Union No. 39, International
Union of Operating Engineers, 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
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 unit is:
All maintenance engineers employed by
the Employer at its Modesto, California,
898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
location; excluding all other employees, This is an official notice and must not be defaced
employees employed by other employers, by anyone.
guards , and supervisors as defined in the This notice must remain posted for 60 consecutive
Act. days from the date of posting and must not be
altered, defaced, or covered by any other material.
NATIONAL MEDICAL Any questions concerning this notice or compli-
HOSPITAL OF MODESTO, ance with its provisions may be directed to the
INC., D/B/A DOCTORS Board 's Office, 13018 Federal Building, Box 36047,
HOSPITAL OF MODESTO 450 Golden Gate Avenue, San Francisco , California
(Employer) 94102, Telephone 415-556-3197.
Dated By
(Representative) (Title)