Lakeside Community Hospital

National Labor Relations Board - Board Decisions

Feb 28, 1992

306 N.L.R.B. 552 (N.L.R.B. 1992)

552
306 NLRB No. 99
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The General Counsel consolidated these cases by Orders dated
June 28, 1991, and September 26, 1991, respectively.
2 On July 12, 1991, Respondent filed a motion to dismiss the com-
plaint in Case 20–CA–23437 on the grounds that ‘‘the allegations
are not based upon a proper or timely charge.’’ In essence, Respond-
ent relies upon the fact that the events alleged in the complaint in
Case 20–CA–23437 occurred after the filing of the charge. On Janu-
ary 13, 1992, the Regional Director denied Respondent’s motion on
the ground that the matters alleged in the complaint were closely re-
lated to the charge and that there is a ‘‘factual and legal nexus be-
tween the charge allegations and the otherwise untimely allegations
. . . .’’ On January 23, 1992, Respondent filed a request for special
permission to appeal the Regional Director’s decision. Respondent
argues that the motion was not properly before the Regional Director
under Sec. 102.24 of the Rules. We agree. See 54 Fed. Reg. 38515
(Sept. 19, 1989).
Accordingly, we have granted Respondent’s request and have con-
sidered the motion de novo. The motion is denied. The allegations
of the complaint are of ‘‘the same class of violations as those set
up in the charge.’’ NLRB v. Fant Milling Co., 360 U.S. 301, 307
(1959). Moreover, the Board is not precluded from ‘‘dealing ade-
quately with unfair labor practices which are related to those alleged
in the charge and which grow out of them while the proceeding is
pending before the Board.’’ National Licorice v. NLRB, 309 U.S.
350, 369 (1940), cited in Fant Milling at 309. See also Nickles Bak-
ery, 296 NLRB 927 (1989).
Having denied the motion to dismiss, we shall remand Case 20–
CA–23437 to the Regional Director to permit Respondent to file a
timely answer to the complaint. (See R. 12, Fed.R.Civ.P.) Accord-
ingly, we deny the Motion for Summary Judgment as it applies to
this case.
3 In addition to the allegations of a general refusal to bargain, the
complaints in these two cases allege certain unilateral changes. All
of those alleged in Case 20–CA–24174, and the one alleged in par.
6(a) in Case 20–CA–23996, are admitted by the Respondent. Thus,
the Respondent admits that during the period of time after the elec-
tion, it granted bonuses and pay raises to its employees. Accord-
ingly, as to these allegations, we grant the Motion for Summary
Judgment. As to those alleged unilateral changes in Case 20–CA–
23996 that are denied by the Respondent, we shall remand those
matters to the Regional Director for further appropriate proceedings.
Although we are also remanding Case 20–CA–23437, no purpose
would be served by remanding this entire matter. Respondent is
clearly challenging the certification in Case 20–RC–16586 and that
challenge is squarely presented by the complaints and answers in
Cases 20–CA–23996 and 20–CA–24174. We find that it will effec-
tuate the purposes and policies of the Act to sever the remanded
cases from this proceeding and thus expedite the resolution of the
challenge to the certification.
Lakeside Community Hospital, Inc. and Hospital
and Health Care Workers Union, Local 250,
Service Employees International Union, AFL–
CIO. Cases 20–CA–23437, 20–CA–23996, and
20–CA–24174
February 28, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On June 28, 1991, in Cases 20–CA–23437 and 20–
CA–23996, and on September 26, 1991, in Case 20–
CA–24174, the General Counsel of the National Labor
Relations Board issued complaints alleging that the
Respondent has violated Section 8(a)(5) and (1) of the
National Labor Relations Act by refusing the Union’s
request to bargain following the Union’s certification
in Case 20–RC–16586.1 (Official notice is taken of the
‘‘record’’ in the representation proceeding as defined
in the Board’s Rules and Regulations, Secs. 102.68
and 102.69(g); Frontier Hotel, 265 NLRB 343 (1982).)
The Respondent filed answers admitting in part and
denying in part the allegations in the complaints issued
in Cases 20–CA–23996 and 20–CA–24174.
On January 21, 1992, the General Counsel filed a
Motion for Summary Judgment. On January 28, 1992,
the Board issued an order transferring the proceeding
to the Board and a Notice to Show Cause why the mo-
tion should not be granted. The Respondent filed a re-
sponse.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
Ruling on Motion for Summary Judgment2
In its answers the Respondent admits its refusal to
bargain, but attacks the validity of the certification on
the basis of its objections to the election and the
Board’s disposition of certain challenged ballots in the
representation proceeding.
All representation issues raised by the Respondent
were or could have been litigated in the prior represen-
tation proceeding. The Respondent does not offer to
adduce at a hearing any newly discovered and pre-
viously unavailable evidence, nor does it allege any
special circumstances that would require the Board to
reexamine the decision made in the representation pro-
ceeding. We therefore find that the Respondent has not
raised any representation issue that is properly litigable
in this unfair labor practice proceeding. See Pittsburgh
Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941).
Accordingly, we grant the Motion for Summary
Judgment with respect to the complaint allegations in
Cases 20–CA–23996 and 20–CA–24174 alleging that
the Respondent has refused to bargain with the Union
after its certification.3
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a health care institution with a
place of business at Lakeport, California, where it op-
erates an acute care hospital. During the calendar year
ending December 31, 1991, Respondent had gross rev-
enues in excess of $250,000 and purchased products,
goods, and materials valued over $5000 which origi-
nated from outside the State of California. We find
that the Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of
553LAKESIDE COMMUNITY HOSPITAL
4 Although we are ordering Respondent to cease and desist from
such conduct, our order is not to be construed as a requirement that
Respondent rescind such benefits as were granted.
the Act and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the election held May 2 and 3, 1990, the
Union was certified on May 17, 1991, as the collec-
tive-bargaining representative of the employees in the
following appropriate unit:
All full-time and regular part-time professional
employees employed by the Employer at its
Lakeport, California, facility, including registered
nurses, per diem registered nurses, nurse anes-
thetists, pharmacists, social services coordinators,
in-service education employees, nursing coordina-
tors, infection control employees, quality assur-
ance employees, laboratory technologists, and res-
piratory therapists; excluding all nonprofessional
employees, confidential employees, managerial
employees, licensed vocational nurses, guards and
supervisors as defined in the Act.
Since on or about May 3, 1990, the Union has been
the exclusive representative by virtue of Section 9(a)
of the Act.
B. Refusals to Bargain
(1) Since May 24, 1991, the Union has requested the
Respondent to meet and bargain and, since May 24,
1991, the Respondent has refused.
(2) On or about January 1991 Respondent granted a
wage increase to unit employees.
(3) On or about July 1991 Respondent informed its
employees that they would be given a choice of receiv-
ing a 7-percent wage increase or a 4-percent bonus and
a 4-percent increase; on or about August 2, 1991, Re-
spondent granted a bonus to unit employees; on or
about August 4, 1991, Respondent granted a wage in-
crease to unit employees.
Respondent took the actions described in two and
three above without providing the Union with notice of
or an opportunity to bargain about those matters.
We find that these actions constitute unlawful refus-
als to bargain in violation of Section 8(a)(5) and (1)
of the Act.
CONCLUSIONS OF LAW
By refusing on and after May 24, 1991, to meet and
bargain with the Union as the exclusive collective-bar-
gaining representative of employees in the appropriate
unit, by on or about July 1991 informing employees
that they would be given a choice of receiving a 7-per-
cent wage increase or a 4-percent bonus and a 4-per-
cent wage increase, by on or about August 2, 1991,
granting a bonus and by on or about August 4, 1991,
granting a wage increase to unit employees without no-
tice to or bargaining with the Union, the Respondent
has engaged in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(5) and (1)
and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has violated Sec-
tion 8(a)(5) and (1) of the Act, we shall order it to
cease and desist,4 to bargain on request with the
Union, and, if an understanding is reached, to embody
the understanding in a signed agreement.
To ensure that the employees are accorded the serv-
ices of their selected bargaining agent for the period
provided by law, we shall construe the initial period of
the certification as beginning the date the Respondent
begins to bargain in good faith with the Union. Mar-
Jac Poultry Co., 136 NLRB 785 (1962); Lamar Hotel,
140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th
Cir. 1964), cert. denied 379 U.S. 817 (1964); Burnett
Construction Co., 149 NLRB 1419, 1421 (1964), enfd.
350 F.2d 57 (10th Cir. 1965).
ORDER
The National Labor Relations Board orders that the
Respondent, Lakeside Community Hospital, Inc.,
Lakeport, California, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with Hospital and Health
Care Workers Union, Local 250, Service Employees
International Union, AFL–CIO, as the exclusive bar-
gaining representative of the employees in the bar-
gaining unit.
(b) Informing employees that they would be given
a choice of receiving a 7-percent wage increase or a
4-percent bonus and a 4-percent wage increase and
granting employees bonuses and wage increases with-
out affording the Union notice of and an opportunity
to bargain about these changes.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclu-
sive representative of the employees in the following
appropriate unit on terms and conditions of employ-
ment and, if an understanding is reached, embody the
understanding in a signed agreement:
All full-time and regular part-time professional
employees employed by the Employer at its
554 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 If 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.’’
Lakeport, California, facility, including registered
nurses, per diem registered nurses, nurse anes-
thetists, pharmacists, social services coordinators,
in-service education employees, nursing coordina-
tors, infection control employees, quality assur-
ance employees, laboratory technologists, and res-
piratory therapists; excluding all nonprofessional
employees, confidential employees, managerial
employees, licensed vocational nurses, guards and
supervisors as defined in the Act.
(b) Post at its facility in Lakeport, California, copies
of the attached notice marked ‘‘Appendix.’’5 Copies of
the notice, on forms provided by the Regional Director
for Region 20, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that Case 20–CA–23437
and the remaining portions of Case 20–CA–23996 be
severed from this proceeding and remanded to the Re-
gional Director for Region 20 for further action con-
sistent with the Decision.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to meet and bargain with Hos-
pital and Health Care Workers Union, Local 250, Serv-
ice Employees International Union, AFL–CIO, as the
exclusive representative of the employees in the bar-
gaining unit.
WE WILL NOT inform employees that they will be
given a choice between a wage increase and a bonus
or grant pay increases and bonuses without affording
the Union notice of and an opportunity to bargain
about these changes.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain with the Union and
put in writing and sign any agreement reached on
terms and conditions of employment for our employees
in the bargaining unit:
All full-time and regular part-time professional
employees employed by the Employer at its
Lakeport, California, facility, including registered
nurses, per diem registered nurses, nurse anes-
thetists, pharmacists, social services coordinators,
in-service education employees, nursing coordina-
tors, infection control employees, quality assur-
ance employees, laboratory technologists, and res-
piratory therapists; excluding all nonprofessional
employees, confidential employees, managerial
employees, licensed vocational nurses, guards and
supervisors as defined in the Act.
LAKESIDE COMMUNITY HOSPITAL, INC.