Mount Sinai Hospital

National Labor Relations Board - Board Decisions

Mar 31, 1999

327 N.L.R.B. 1156 (N.L.R.B. 1999)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1137
The Mount Sinai Hospital and 1199 National Health
& Human Service Employees, SEIU, AFL–CIO.
Case 2–CA–31825
March 31, 1999
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
LIEBMAN AND HURTGEN
Pursuant to a charge filed on November 12, 1998,1 the
General Counsel of the National Labor Relations Board
issued a complaint on December 11, 1998, 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 2-RC-21684.2 (Official notice is taken of the “re-
cord” 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 an answer admitting in part and deny-
ing in part the allegations in the complaint.
On February 1, 1999, the General Counsel filed a Peti-
tion for Summary Judgment and Memorandum in Sup-
port. On February 10, 1999, the Board issued an order
transferring the proceeding to the Board and a Notice to
Show Cause why the motion should not be granted. The
Respondent filed a response.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Summary Judgment
In its answer the Respondent denies that the Union re-
quested it, and that it refused to bargain3 and attacks the
validity of the certification on the basis of the Board’s
disposition of the challenged ballot in the representation
proceeding. Specifically the Respondent argues that the
Board incorrectly counted the ballot of Ana Gonzalez.
All representation issues raised by the Respondent
were or could have been litigated in the prior representa-
tion proceeding. The Respondent does not offer to ad-
duce at a hearing any newly discovered and previously
unavailable evidence, nor does it allege any special cir-
cumstances that would require the Board to reexamine
the decision made in the representation proceeding. We
therefore find that the Respondent has not raised any
representation issue that is properly litigable in this un-
fair labor practice proceeding.4 See Pittsburgh Plate
Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accord-
ingly, we deny the Respondent’s request to dismiss the
complaint and grant the Motion for Summary Judgment.5

1 Although the Respondent’s answer to the complaint denies having
knowledge or information sufficient to form a belief as to whether the
charge was filed on November 12, 1998, and served on the Respondent
on November 17, 1998, a copy of the charge and affidavit of service are
attached to the General Counsel’s motion and the Respondent has not
challenged the authenticity of those documents.
2 325 NLRB 1136 (1998), Member Hurtgen dissenting.
3 Although the Respondent in its answer to the complaint also denies
the complaint’s allegations that the Union requested it to bargain on
August 21, 1998, and that the Respondent, on August 24, 1998, refused
to do so, the General Counsel has submitted with its motion copies of
the correspondence between the parties evidencing these facts, and the
Respondent has not disputed the authenticity of that correspondence.
Indeed, the Respondent referenced this correspondence in its answer.
Accordingly, we find that the Respondent’s denials do not raise any
issues warranting a hearing.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, an acute care
health care institution with its office and place of busi-
ness at One Gustave Levy Place, New York, New York,
has been engaged in the business of providing health care
services to the public.
Annually, the Respondent, in conducting its business
operations, derives gross revenues in excess of $250,000,
and purchases and receives at its facility goods and ser-
vices valued in excess of $5000 directly from suppliers
located outside the State of New York.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of 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
At all material times, the Union has been the desig-
nated exclusive bargaining representative of a unit of
technical employees employed by the Respondent,6 and
the Respondent has recognized the Union as the exclu-
sive bargaining representative of the employees in that
unit.
Pursuant to a Stipulated Election Agreement, on May
23, 1996, an election was held among the following em-
ployees (the voting group):

Included: All full-time and regular part-time
cardiac catherization specialists, employed by the
Employer at its facility.
4 Member Hurtgen, who dissented in the representation case, agrees
that the Respondent has not raised any representation issue that is prop-
erly litigable in this unfair labor practice proceeding.
5 Chairman Truesdale notes that he was not on the panel that consid-
ered the underlying representation case. However, he agrees with his
colleagues that the Respondent has not raised any new matters warrant-
ing relitigation in the instant “technical” 8(a)(5) refusal-to-bargain
proceeding, and that summary judgment is therefore appropriate.
6 While the complaint does not allege the technical unit as the ap-
propriate bargaining unit, it clearly referred to the certification which
describes the voting group (cardiac catherization specialists) as having
indicated their “desire to be represented by the Petitioner in the existing
unit of technical employees presently represented by the Petitioner.”
To the extent that Respondent’s denial of the appropriateness of the
unit is based on this inadvertent error, it does not raise a litigable issue.
See, e.g., Edward J. DeBartolo Corp., 315 NLRB 1170 (1994).
327 NLRB No. 186
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1138
Excluded: All other employees, guards, profes-
sional employees, and supervisors as defined in the
Act.

Pursuant to the Stipulated Election Agreement, the Re-
spondent and the Union agreed that if a majority of the
valid ballots were cast in favor of the Union, this would
be deemed to indicate the voting group’s desire to be
included in the existing unit of technical employees al-
ready represented by the Union. A majority of the voting
group voted in favor of representation by the Union at
the May 23, 1996, election, and the Acting Regional Di-
rector so certified on August 7, 1998.
The employees in the recognized unit, including the
voting group, constitute a unit appropriate for purposes
of collective bargaining.
At all times since August 7, 1998, based on Section
9(a) of the Act, the Union has been, and continues to be,
the exclusive collective-bargaining representative of the
unit, including the voting group.
B. Refusal to Bargain
On or about August 21, 1998, by letter, the Union has
requested the Respondent to bargain, and, since on or
about August 24, 1998, by letter, the Respondent has
refused. We find that this refusal constitutes an unlawful
refusal to bargain in violation of Section 8(a)(5) and (1)
of the Act.
CONCLUSION OF LAW
By refusing on and after August 24, 1998, to recognize
and bargain with the Union as the exclusive collective-
bargaining representative of employees in the appropriate
unit, the Respondent has engaged in unfair labor prac-
tices affecting commerce 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 Section
8(a)(5) and (1) of the Act, we shall order it to cease and
desist, to bargain on request with the Union, and, if an
understanding is reached, to embody the understanding
in a signed agreement.
ORDER
The National Labor Relations Board orders that the
Respondent, The Mount Sinai Hospital, New York, New
York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with 1199 National Health &
Human Service Employees, SEIU, AFL-CIO, as the ex-
clusive bargaining representative of the employees in the
bargaining unit.
(b) 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 following group of employees
as part of the recognized appropriate unit of technical
employees employed by Respondent concerning terms
and conditions of employment, and if an understanding is
reached, embody the understanding in a signed agree-
ment:

Included: All-time and regular part-time cardiac
catherization specialists, employed by the Employer
at its facility.
Excluded: All other employees, guards, profes-
sional employees, and supervisors as defined in the
Act.

(b) Within 14 days after service by the Region, post at
its facility in New York, New York, copies of the at-
tached notice marked “Appendix.”7 Copies of the notice,
on forms provided by the Regional Director for Region 2
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since August 24, 1998.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
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 vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

WE WILL NOT refuse to bargain with 1199 National
Health & Human Service Employees, SEIU, AFL–CIO,
as the exclusive representative of the employees in the
bargaining unit.

7 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
MOUNT SINAI HOSPITAL 1139
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 the following group of
employees employed as part of the recognized appropri-
ate unit of technical employees:

Included: All full-time and regular part-time
cardiac catherization specialists, employed by us at
our facility.
Excluded: All other employees, guards, profes-
sional employees, and supervisors as defined in the
Act.

THE MOUNT SINAI HOSPITAL