Grant Hospital

National Labor Relations Board - Board Decisions

Dec 4, 1979

246 N.L.R.B. 696 (N.L.R.B. 1979)

I)[(('ISIONS ()F NA'I()NAI. IABOR RL.AI(IONS BOARI)
Grant Hospital and Retail Clerks Union, Local 1059.
United Food and Commercial Workers Interna-
tional Union, AFL-CIO. Case 9 C'A 14231
December 4, 1979
DECISION AND ORDER
BY CIIAIRMAN FANNING ANI) MlEMBERS PN I ()
ANI) TRl:ESI)AII
Upon a charge filed on August 17, 1979, by Retail
Clerks Union, Local 1059, United Food and Com-
mercial Workers International Union, AFL ('10().
herein called the Union. and duly served on Grant
Hospital, herein called Respondent. the General
Counsel of the National Labor Relations Board. by
the Regional Director for Region 9, issued a com-
plaint on September 5, 1979, against Respondent. al-
leging 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 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 proceed-
ing.
With respect to the unfair labor practices, the com-
plaint alleges in substance that on July 20, 1979. fol-
lowing a Board election in Case 9-RC-12887, the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit tbund appropriate:' and that, commencing
on or about August 10, 1979, and at all times there-
after, 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. On
September 19, 1979, Respondent filed its answer to
the complaint admitting in part, and denying in part,
the allegations in the complaint.
On September 26, 1979, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment, which included a motion to
strike portions of Respondent's answer, and Respon-
dent thereafter filed a memorandum in opposition to
the motions. Subsequently, on October 4, 1979, the
Board issued an order transferring the proceeding to
the Board and a Notice To Show Cause why the Gen-
Official notice is taken of the record in the representation proceedinlg,
Case 9 R 12887, 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 Ekctror'lemRn. Inc. 166 NLRB 938 ( 1967), enfd. 388 F.2d 683 (4th ('ir
1968); Golden Age Beverage Co., 167 NLRB 151 (1967). enfd. 415 1F 2d 26
5th ('ir. 19691: Intertvpe o v. Pncelo, 269 : Supp. 573 (DC. Va 1967):
Foll/t (Corp, 164 NLRB 378 (1967). enfd 397 1.2d 91 (7th ('lr 1968): Sec
9(d) of he NI.RA, as amended.
eral Counsel's Motion for Summary Judgment should
not be granted.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Lahor 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 tiollowing:
Ruling on the Motion To Strike Portions of
Respondent's Answer and the Motion for Summary
Judgment
Respecting the General Counsel's motion to strike
portions of Respondent's answer to the complaint, we
find that, although the answer does not present a
meritorious defense to the allegations of the com-
plaint, no portion of the answer or any of its para-
graphs should be struck. In our judgment, Respon-
dent's pleading can be viewed as an endeavor by
Respondent to preserve a position, albeit, in our view,
an erroneous one. See Rod-Ric Corporation, 171
NLRB 922 (1968). The motion to strike is therefore
denied.
In its memorandum in opposition to the General
('ounsel's Motion for Summary Judgment and an-
swer to the complaint, Respondent admits that it has
refused to bargain with the Union, but asserts that
the Union does not represent Respondent's employ-
ees in a unit appropriate for purposes of collective
bargaining. Respondent contends that application of
the Alnerican (vananllid standard 2 to determine the
appropriateness of a separate maintenance unit in
this case, involving a health care institution, was in-
appropriate and contrary to congressional intent in
enacting the health care amendments to the Act. Re-
spondent further asserts that the Board erroneously
included "parking attendants" and the "departmental
secretary" in the unit. ounsel for the General Coun-
sel argues that there are no matters warranting a
hearing because the issues concerning the Union's
certification were raised and determined in the under-
lying representation case. We agree with the General
Counsel.
Our review of the record herein, including the rec-
ord in Case 9 RC 12887, indicates that the Regional
l)irector's Decision and D)irection of Election was is-
sued on June 8, 1979. Respondent requested review of
the Decision and Direction of Election, contending
that the separate hospital maintenance unit approved
by the Regional Director was inappropriate, and that
the Board erroneously included "parking attendants"
and the "departmental secretary" in the unit. The
Board denied the request for review on July 11 I, 1979,
Aniler i (anamid ( emparn. 131 NI. RB 909 ( 19h )
246 NLRB No. 110
696
GRANT HOSPITAI.
and the election was held on July 12, 1979. The tall)
of ballots showed 29 votes were cast for, and 19
against, the Union: there were no challenged ballots.
No objections were filed to the election.
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
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 FA( r
I. 111H BUSINFSS OF RESPONI)ENI
Respondent Grant Hospital, a nonprofit Ohio cor-
poration, is engaged in the operation of a hospital at
Columbus, Ohio. During the past 12 months, a repre-
sentative period, Respondent, in the course and con-
duct of its business, received gross revenues in excess
of $250,000. During the same period of time, Respon-
dent purchased goods and materials valued in excess
of $50,000 which were shipped to its Columbus, Ohio,
facility directly from points outside the State.
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.
II. rIFE I.ABOR OR(iANIZATIO()N INVOI.VEI)
Retail Clerks Union, Local 1059, United Food and
Commercial Workers International Union, AFIL
CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
See Ptt.sburgh Plate (;lasr (o s. V L .R B. 313 U.S. 146. I62 (1941):
Rules and Regulations (ft he Board. Sees 102 67(f) and 102 6h90cl
1. 1111 t'l AIR IABOK PRAC I I( :S
A. 7he Rtpre.entlation Procedling
I. The unit
The following employees of Respondent constitute
a unit appropriate for collective-bargaining purposes
within the meaning of Section 9(h) of the Act:
All Building and Grounds Department employ-
ees employed by Respondent at its Columbus,
Ohio, hospital, including engineers. fire-
man/boiler operators. carpenters, plumbers.
electricians, painters, laborers, maintenance
men, the building superintendent, the elevator
operator. the electronics technician, the grounds-
keeper, mechanic specialists, mechanics, mainte-
nance helpers, cabinet makers, the maintenance
clerk, parking attendants and the department
secretary, but excluding all other employees, and
all professional employees, guards and supervi-
sors as defined in the Act.
2. The certification
On July 12, 1979, a majority of the emplosees of
Respondent in said unit, in a secret-ballot election
conducted under the supervision of the Regional Di-
rector for Region 9. 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 July 20, 1979, and the Union continues
to be such exclusive representative within the mean-
ing of Section 9(a) of the Act.
B. The Request To Bargainl and Re.spondenlt Re/isa
Commencing on or about July 20, 1979. and at all
times thereafter, the Union has requested Respondent
to bargain collectively with it as the exclusive collec-
tive-bargaining representative of all the employees in
the above-described unit. Commencing on or about
August 10. 1979, 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
August 10, 1979, and at all times thereafter. refused
to bargain collectively with the Union as the exclu-
sive representative of the employees in the appropri-
ate 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 (I) of the
'Act.
697
DE('ISIONS ()F NA'IIONAIl. LABOR R.,A I()NS BOAR[)
IV. lii i1 tI'1it(' )1 1 It NIAIR LABOR PRA I ('IS
TOI'()N ('()MMI:R('I
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. i RIMEI)Y
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 MarJac Poultry Compar!, Inc., 136 NLRB
785 (1962); Commerce Company d/h/a lamar Hotel,
140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th
Cir. 1964), cert. denied 379 U.S. 817: Burneit 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:
CoNc('.usioNs O () LAW
I. Grant Hospital is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of
the Act.
2. Retail Clerks Union, Local 1059. United Food
and Commercial Workers International Union.
AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of' the Act.
3. All Building and Grounds Department employ-
ees employed by Respondent at its Columbus, Ohio.
hospital. including engineers, fireman/boiler opera-
tors, carpenters, plumbers, electricians, painters, la-
borers, maintenance men, the building superinten-
dent, the elevator operator, the electronics technician,
the groundskeeper, mechanic specialists, mechanics.
maintenance helpers, cabinet makers, the mainte-
nance clerk, parking attendants and the department
secretary, but excluding all other employees, and all
professional employees, guards and supervisors as de-
fined in the Act, constitute a unit appropriate fr the
purposes of collective bargaining within the meaning
of' Section 9(b) of the Act.
4. Since July 20, 1979, the above-named labor or-
ganization has been and now is the certified and ex-
clusive representative of' all employees in the aore-
said appropriate unit for the purpose of' collective
bargaining within the meaning of' Section 9(a) of the
Act.
5. B refusing on or about August 10. 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
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 IO(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondent,
Grant Hospital, Columbus, Ohio. 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 Retail Clerks Union. Lo-
cal 1059. United Food and Commercial Workers In-
ternational Union, AFL-('IO, as the exclusive
bargaining representative of' its employees in the fol-
lowing appropriate unit:
All Building and Grounds Department employ-
ees employed by Respondent at its Columbus,
Ohio, hospital, including engineers, fire-
man/boiler operators, carpenters, plumbers,
electricians, painters, laborers, maintenance
men, the building superintendent. the elevator
operator, the electronics technician, the grounds-
keeper, mechanic specialists, mechanics, mainte-
nance helpers, cabinet makers, the maintenance
clerk, parking attendants and the department
secretary, but excluding all other employees. and
all professional employees, guards and supervi-
sors as defined in the Act.
698
G(RAN IO()SPI I
(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 otf
all employees in the aforesaid appropriate unit with
respect to rates of pa., 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 Columbus. Ohio, acility copies of
the attached notice marked "Appendix." 4 Copies of
said notice, on forms provided by the Regional Direc-
tor for Region 9, 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 fi)r Region 9. in
writing, within 20 days from the date of this Order.
what steps have been taken to comply herewith.
MEMBER P NI .I.(), dissenting:
Instead of granting General Counsel's Motion for
Summary Judgment, I would dismiss the complaint
in its entirety on the ground that the petitioned-tbr
unit is inappropriate. See my dissent in .4-ll/ghe',!i
General Hospital. 239 NLRB 872 (1978). enforcement
denied 608 F.2d 965 (3d Cir. 1979).
'In the eent that this Order is enfirced h a Judgment oa nlled Stalte
(Court of Appeals. the words In the notice reading "Posted h Order f Ithe
National .ahNr Relations Bolard" shall read "Posted Pursuant to a Judgment
of the tInited States C(ourt iof Appeals nlforcing an Order of the National
l.abor Relations Board"
699
A 1i) EN£ 1) I X
No ll 1i: Tlo N[-lPl)YIL:S
P()OSil) HIY ORI)IR ()I Ili
AII t)N\ I .AB(OR R A II()NS 13 ()\RI)
An Agency of the Ulnited States (overnmnent
WV 55111 NO)I refuse to bargain collecti el,
concerning rates of pay. wages, hours. and other
terms and conditions of emplonilent with Retail
Clerks Union. I.ocal 1059. United Food and
Commercial WVorkers International Union.
AFI. (10. s the exclusive representati e of the
emplosees in the bargaining unit described be-
low.
WA \\il.1 Noi 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.
Wt WIL.L., 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 Building and Grounds Department em-
ployees employed by us at our Columbus.
Ohio. hospital. including engineers, fireman/
boiler operators, carpenters. plumbers. electri-
cians. painters. laborers. maintenance men, the
building superintendent, the elevator operator,
the electronics technician. the groundskeeper.
mechanic specialists, mechanics. maintenance
helpers. cabinet makers. the maintenance
clerk, parking attendants and the department
secretary. hut excluding all other employees.
and all professional employees, guards and su-
pervisors ias defined in the Act.
GRA,,I HosprirI.