Medical Center at Bowling Green, The

National Labor Relations Board - Board Decisions

May 12, 1982

261 N.L.R.B. 827 (N.L.R.B. 1982)

THE MEDICAL CENTER AT BOWLING GREEN
The Medical Center at Bowling Green and Kentucky
Nurses' Association. Case 9-CA-17858
May 12, 1982
DECISION AND ORDER
By MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
Upon a charge filed on January 13, 1982, by
Kentucky Nurses' Association, herein called the
Union, and duly served on The Medical Center at
Bowling Green, herein called Respondent, the
General Counsel of the National Labor Relations
Board, by the Regional Director for Region 9,
issued a complaint on January 27, 1982, against Re-
spondent, 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 and 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 30,
1981, following a Board election in Case 9-RC-
13692,' the Union was duly certified as the exclu-
sive collective-bargaining representative of Re-
spondent's employees in the unit found appropriate;
and that, commencing on or about October 20,
1981, and at all times thereafter, Respondent has
refused, and continues to date to refuse, to bargain
collectively with the Union as the exclusive bar-
gaining representative, although the Union has re-
quested and is requesting it to do so. On February
8, 1982, Respondent filed its answer to the com-
plaint admitting in part, and denying in part, the al-
legations in the complaint.
On February 19, 1982, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on March 2,
1982, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for Sum-
mary Judgment should not be granted. Respondent
thereafter filed a response to the Notice To Show
Cause and Cross-Motion for Summary Judgment.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
I Official notice is taken of the record in the representation proceed-
ing, Case 9-RC-13692, 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 151 (1967), enfd. 415
F.2d 26 (5th Cir. 1969); Intertype Co v. Pernello, 269 F.Supp. 573
(D.C.Va. 1967); Follert Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91
(7th Cir. 1968); Sec. 9(d) of the NLRA, as amended.
261 NLRB No. 120
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 to the complaint and response to
the Notice To Show Cause and its Cross-Motion
for Summary Judgment, Respondent admits its re-
fusal to bargain, but denies the material 8(a)(1) and
(5) allegations of the complaint, asserting as its af-
firmative defenses: (1) that the Regional Director
improperly failed to rule in Case 9-RC-13692 on
the supervisory status of unit directors; (2) that the
Regional Director improperly refused to accept the
parties' stipulation to exclude certain employees
from the bargaining unit as professionals; (3) that
the Board improperly denied Respondent's request
for review of the Regional Director's Decision and
Direction of Election; (4) that the Regional Direc-
tor improperly failed to sustain Respondent's objec-
tions; and (5) that the Board improperly denied Re-
spondent's request for review of the Regional Di-
rector's Supplemental Decision and Certification of
Representative. Counsel for the General Counsel
argues that there are no matters warranting a hear-
ing because the issues concerning the Union's certi-
fication were litigated and determined in the under-
lying representation case. We agree with the Gen-
eral Counsel.
A review of the record herein, including that of
the representation proceeding in Case 9-RC-13692,
shows that on April 16, 1982, the Regional Direc-
tor issued a Decision and Direction of Election in a
unit of registered nurses. The Regional Director
also, inter alia, excluded licensed practical nurses
from the unit, permitted unit directors to vote sub-
ject to challenge, and, contrary to the parties' stip-
ulation, permitted the director of inservice educa-
tion, utilization review nurse, certified registered
nurse anesthetists, employee health nurse, and in-
fection control nurse to vote subject to challenge.
Thereafter, Respondent filed a timely request for
review of the Regional Director's Decision and Di-
rection of Election. On May 14, 1981, the Board
by telegraphic order, with Member Jenkins dissent-
ing in part as to the Regional Director's refusal to
honor the parties' stipulation, denied Respondent's
request as it raised no substantial issues warranting
review. The Union won the election conducted on
May 14, 1981, by a 94-22 margin, with 27 chal-
lenged ballots. Thereafter, Respondent filed timely
objections to the election alleging that (1) the Re-
gional Director's failure in his Decision and Direc-
tion of Election to rule with regard to the supervi-
sory status of unit directors prevented Respondent
827
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from effectively communicating its position con-
cerning the union campaign to its employees, and
(2) the unit directors were extensively involved in
the campaign on behalf of the Union, thereby cre-
ating the likelihood that employees were coerced
into voting for the Petitioner. On June 30, 1981,
after investigation of Respondent's objections, the
Regional Director issued a Supplemental Decision
and Certification of Representative in which he
overruled Respondent's exceptions in their entirety
and certified the Union. Respondent timely filed a
request for review of the Supplemental Decision.
By telegraphic order dated September 10, 1981, the
Board denied the request as it raised no substantial
issues warranting review.
On or about October 12, 1981, the Union, by
letter, requested that Respondent bargain with it
collectively as the exclusive collective-bargaining
representative of the unit employees. Respondent
has admitted its denial of the Union's October 12
request and its refusal since October 20, 1981, to
recognize or bargain with the Union. 2
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or spe-
cial circumstances a respondent in a proceeding al-
leging 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. 3
All issues raised by Respondent in this proceed-
ing were or could have been litigated in the prior
representation any newly discovered or proceed-
ing,4 and Respondent does not offer to adduce at a
hearing previously unavailable evidence, 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 Respondent has not raised any
issue which is properly litigable in this unfair labor
practice proceeding. Accordingly, we grant the
General Counsel's Motion for Summary Judgment
2 We grant the General Counsel's motion of March 16, 1982, to substi-
lute G.C. Exh. G, the Union's letter of October 12, 1981, demanding rec-
ognition from Respondent, for G.C. Exh. E, the Union's February 18,
1981, letter requesting recognition. Both the complaint and the Motion
for Summary Judgment refer to the Union's October 12. 1981, letter re-
questing that Respondent bargain collectively with it. Having granted the
General Counsel's motion, we find no merit to Respondent's assertion
that the pleadings failed to state a claim on which relief can be granted
because the February 1981 request for recognition was prior to any ma-
jority showing by the Union.
I See Pittsburgh Plate Glass Co. v. NL.R.B., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c)
4 We find no merit to Respondent's affirmative defense that it is not
obligated to bargain with the Union on the basis that the Regional Direc-
tor failed to determine the unit placement of certain employees. The
Board has long held that, when a union has demonstrated its majority
status, an unresolved question of the unit placement of certain employees
does not affect either the basic appropriateness of the certified unit or the
parties' obligation to bargain with respect to that unit. National Press,
Inc, 241 NLRB 1000 (1979); and The May Department Stores Company,
186 NLRB 86, fn. 5 (1970).
and deny Respondent's Cross-Motion for Summary
Judgment.
On the basis of the entire record, the Board
makes the following:
FINDINGS 01 FACT
I. THE BUSINESS OF RESPONDENT
Respondent, a Kentucky corporation, is engaged
as a health care institution in the operation of a
nonprofit hospital at Bowling Green, Kentucky.
During the past 12 months, a representative period,
Respondent in the course and conduct of its busi-
ness operations received gross revenues in excess of
$250,000. During the same period of time, Re-
spondent purchased and received goods and mate-
rials, valued in excess of $50,000, at its Bowling
Green, Kentucky, facility directly from points out-
side the State of Kentucky.
We find, on the basis of the foregoing, that Re-
spondent 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 l.ABOR ORGANIZATION INVOLVED
Kentucky Nurses' Association is a labor organi-
zation within the meaning of Section 2(5) of the
Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
The following employees of Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All registered nurses employed by the Re-
spondent at its Bowling Green, Kentucky,
Hospital, excluding all other employees, all
office clerical employees, and all guards and
supervisors as defined in the Act.
2. The certification
On May 14, 1981, 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 9, designated the Union as
their representative for the purpose of collective
bargaining with Respondent.
The Union was certified as the collective-bar-
gaining representative of the employees in said unit
on June 30, 1981, and the Union continues to be
such exclusive representative within the meaning of
Section 9(a) of the Act.
828
THE MEDICAL CENTER AT BOWLING GREEN
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about October 12, 1981, and
at all times thereafter, the Union has requested Re-
spondent to bargain collectively with it as the ex-
clusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about October 20, 1981, and con-
tinuing at all times thereafter to date, Respondent
has refused, and continues to refuse, to recognize
and bargain with the Union as the exclusive repre-
sentative for collective bargaining of all employees
in said unit.
Accordingly, we find that Respondent has, since
October 20, 1981, and at all times thereafter, re-
fused to bargain collectively with the Union as the
exclusive representative of the employees in the ap-
propriate unit, and that, by such refusal, Respond-
ent 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 oper-
ations described in section I, above, have a close,
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing 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 ap-
propriate unit will be accorded the services of their
selected bargaining agent for the period provided
by law, we shall construe the initial period of certi-
fication as beginning on the date Respondent com-
mences to bargain in good faith with the Union as
the recognized bargaining representative in the ap-
propriate 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 Construction 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:
CONCI USIONS OF LAW
I. The Medical Center at Bowling Green is an
employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. Kentucky Nurses' Association is a labor orga-
nization within the meaning of Section 2(5) of the
Act.
3. All registered nurses employed by Respondent
at its Bowling Green, Kentucky, Hospital, exclud-
ing all other employees, all office clerical employ-
ees, and all guards and supervisors as defined in the
Act, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Sec-
tion 9(b) of the Act.
4. Since June 30, 1981, 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 purpose of collec-
tive bargaining within the meaning of Section 9(a)
of the Act.
5. By refusing on or about October 20, 1981, and
at all times thereafter, to bargain collectively with
the above-named labor organization as the exclu-
sive bargaining representative of all the employees
of Respondent in the appropriate unit, Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) of the
Act.
6. By the aforesaid refusal to bargain, Respond-
ent has interfered with, restrained, and coerced,
and is interfering with, restraining, and coercing,
employees in the exercise of the rights guaranteed
them in Section 7 of the Act, and thereby has en-
gaged 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
meaning 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 Re-
lations Board hereby orders that the Respondent,
The Medical Center at Bowling Green, Bowling
Green, Kentucky, 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 Kentucky Nurses'
Association as the exclusive bargaining representa-
tive of its employees in the following appropriate
unit:
829
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All registered nurses employed by the Re-
spondent at its Bowling Green, Kentucky,
Hospital, excluding all other employees, all
office clerical employees, and all guards and
supervisors as defined in the Act.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise 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 understanding is reached, embody such under-
standing in a signed agreement.
(b) Post at its Bowling Green, Kentucky, hospi-
tal copies of the attached notice marked "Appen-
dix." 5 Copies of said notice, on forms provided by
the Regional Director for Region 9, 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 conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Re-
spondent to ensure that said notices are not altered,
defaced, or covered by any other material.
I 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
(c) Notify the Regional Director for Region 9, 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 Kentucky Nurses' Association as the ex-
clusive 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 employ-
ees 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 repre-
sentative of all employees in the bargaining
unit described below, with respect to rates of
pay, wages, hours, and other terms and condi-
tions of employment and, if an understanding
is reached, embody such understanding in a
signed agreement. The bargaining unit is:
All registered nurses employed by us at our
Bowling Green, Kentucky, Hospital, exclud-
ing all other employees, all office clerical
employees, and all guards and supervisors as
defined in the Act.
THE MEDICAL CENTER AT BOWLING
GREEN
830