Paramount General Hospital, Inc.

National Labor Relations Board - Board DecisionsApr 21, 1976

223 N.L.R.B. 1017 (N.L.R.B. 1976)

PARAMOUNT GENERAL HOSPITAL 1017 Paramount General Hospital , Inc. and Hospital and Service Employees Union , Local 399, Service Em- ployees International Union , AFL-CIO. Case 21- CA-14079 April 21, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND PENELLO why the General Counsel's Motion for Summary Judgment should not be granted. Respondent -there- after filed a response to Notice To Show Cause, enti- tled "Employer's Opposition to General Counsel's Motion for Summary Judgment." Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. Upon the entire record in this proceeding,2 the Board makes the following: Upon a charge filed on October 16, 1975, by Hos- pital and Service Employees Union, Local 399, Ser- vice Employees International Union, AFL-CIO, herein called the Union, and duly served on Para- mount General Hospital, Inc., herein called the Re- spondent, the Acting General Counsel, herein called the General Counsel, of the National Labor Rela- tions Board, by the Regional Director for Region 21, issued a complaint on November 12, 1975, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affect- ing commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National La- bor Relations Act, as amended. Copies of the charge, complaint, and notice of hearing before an Adminis- trative Law Judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the com- plaint alleges in substance that on July 25, 1975, fol- lowing a Board election in Case 21-RC-13855, the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate;' and that, commenc- ing on or about October 14, 1975, and at all times thereafter, 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 November 24, 1975, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On December 22, 1975, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on January 19, 1976, the Board issued an order transferring the pro- ceeding to the Board and a Notice To Show Cause 'Official notice is taken of the record in the representation proceeding, Case 21-RC-13855,. 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 (C.A. 4, 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26 (C.A. 5, 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C. Va., 1967): Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7. 1968); Sec. 9(d) of the NLRA. Ruling on the Motion for Summary Judgment In its answer to the complaint and its response to the Notice To Show Cause, Respondent attacks the propriety of the Union's certification on the basis of its objections to the election and to the appropriate- ness of the bargaining unit for which the Union is certified. Further, Respondent affirmatively, con- tends its refusal to bargain is justified in view of the distribution by the Union of an allegedly tortious and defamatory handbill, citing our decision in Her- bert Bernstein et al., a copartnership, d/b/a Laura Modes Company, 144 NLRB 1592 (1963), and Re- spondent requests a hearing on this issue. Review of the record herein, including the record in Case 21-RC-13855, reveals that a petition was filed by the Union on July 26, 1974, as amended on August 7, 1974, seeking to represent certain of Respondent's employees at its Paramount, Califor- nia, hospital. At the hearing, Respondent contended that the scope of the bargaining unit should be en- larged to include the employees referred to the hospi- tal by registries and the employees of contract em- ployers. Thereafter, the Regional Director issued his Decision and Direction of Election on November 1, 1974, in which he found the unit sought by the Union to be appropriate and directed an election therein. Respondent filed a request for review of the Regional Director's decision with the Board in Washington, D.C. By telegraphic order dated December 4, 1974, the request for review was granted with respect to the exclusion of certain registry employees and denied in all other respects, and the election was postponed pending decision on review. On March 21, 1975, the Board issued its Decision on Review 3 in which it affirmed the Regional Director's Decision and Direc- tion of Election. Pursuant to the Board's decision and remand, an election was held on April 24, 1975, which the Union won. Respondent filed timely objections to conduct 2 Respondent's request for oral argument is denied as the General Counsel's motion and Respondent's response to the Notice To Show Cause adequately present the positions of the parties. 3 217 NLRB No. 22. 223 NLRB No. 151 1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD affecting the results of the election, alleging, in sub- stance , union threats, unlawful promises of benefits, misrepresentations , waiver of initiation fees, and ma- licious and libelous falsehoods. On July 25, 1975, af- ter investigation of Respondent's objections, the Re- gional Director issued his Supplemental Decision and Certification of Representative in which he over- ruled the objections in their entirety and certified the Union. Thereafter, Respondent filed a request for re- view of the Regional Director's supplemental deci- sion . By telegraphic order dated September 16, 1975, the Board denied Respondent's request for review as it raised no substantial issues warranting review. It thus appears that, except as hereafter discussed, Respondent is attempting to relitigate issues which were raised and decided in the underlying represen- tation case. It is well settled that in the absence of newly discovered or previously unavailable evidence or special circumstances a respondent in a proceed- ing alleging a violation of Section 8(a)(5) is not enti- tled to relitigate issues which were or could have been litigated in a prior representation proceeding.4 All issues raised by the Respondent in this pro- ceeding were or could have been litigated in the prior representation proceeding, and the Respondent does not offer to adduce at a hearing any newly discov- ered or previously unavailable evidence, nor does it allege that any special circumstances exist herein which would require the Board to reexamine the de- cision made in the representation proceeding.' We therefore find that the Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding.6 In support of its contention that its refusal to bar- gain is justified by the Union's allegedly defamatory conduct, Respondent submitted a copy of a handbill dated October 21, 1975, which the Union allegedly distributed to patients, the public, and persons with business relations with the Respondent and in which it is stated that a hospital which is corporately related 4 See Pittsburgh Plate Glass Co. v. N. L R. B., 313 U.S. 146. 162 (1941); Rules and Regulations of the Board, Secs . 102.67(1) and 102 .69(c). 5 Although Chairman Murphy would have remanded the representation proceeding for a hearing on Objections 3 and 5, inasmuch as the majority did not agree to do so and the subsequent certification of representative in that case is the official determination by this Agency. she concurs in the finding herein. 6 Respondent contends that the Board 's rule prohibiting relitigation of representation case issues may not be applied in the circumstances of this case , where the Board denied Respondent 's request for review of the Re- gional Director's decision overruling Respondent's election objections with- out a hearing and certifying the Union . We find Respondent 's contention to be without merit as the Board has consistently applied its rule against reliti- gation in cases similar to the present case with judicial approval. E.G.. N.L.R.B. v. Houston Natural Gas Corp.. 478 F.2d 467 (C.A. 5. 1973). enfg. 198 NLRB 1003 (1972 ). cert . denied 414 U.S. 1067 (1973): N.L.R.B. v. Inter- national Equipment Co., Subsidiary of Damon Engineering Co., 454 F.2d 686 to Respondent was forced to close down due to irreg- ularities in its operation. Assuming, arguendo, that the handbill is in fact incorrect in this respect, we initially note that similar statements were made in handbills previously circulated during the preelection campaign, and, after investigation, the Regional Di- rector found that such handbills did not warrant set- ting aside the election. Respondent requested review of this finding, inter alia, and the Board denied the request for review as it raised no substantial issues warranting review. Further, the alleged defamatory conduct by the Union herein is clearly distinguisha- ble from the violence at issue in Laura Modes. Under these circumstances the conduct herein does not just- ify Respondent's refusal to bargain or warrant the Board's withholding an order compelling bargaining. Where, as here, Respondent's allegations do not con- stitute a justification for its refusal to bargain, or warrant withholding of a bargaining order, there are necessarily no substantial and material issues of fact to be determined, and a hearing is not required in such circumstances.' We shall, accordingly, grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent, a California corporation, is a health care institution engaged in the operation of an acute care hospital. In the course and conduct of its busi- ness operations during the past 12 months, a repre- sentative period, Respondent had gross revenues in excess of $250,000 and received in excess of $100,000 of Medicare funds from the Federal Government. We find, on the basis of the foregoing, that Re- spondent is, and has been at all times material here- in, 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 juris- diction herein. It. THE LABOR ORGANIZATION INVOLVED Hospital and Service Employees Union, Local 399, Service Employees International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. (C.A. 1, 1972), enfg. 189 NLRB 509 (1971): cf. Magnesium Casting Company v. N.L.R.B., 401 U.S. 137 (1971). t See Janler Plastic Mold Corporation, 191 NLRB 162 (1971): Crest Leath- er Manufacturing Corporation, 167 NLRB 1085 (1967). PARAMOUNT GENERAL HOSPITAL 1019 Ill. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit tices within the meaning of Section 8(a)(5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The following employees of the Respondent con- stitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All employees employed by Respondent at its hospital located at 16453 South Colorado Boule- vard, Paramount, California; excluding profes- sional employees, registered nurses, medical doctors, registry employees, employees of con- tract employers, guards, and supervisors as de- fined in the act. 2. The certification On April 24, 1975, a majority of the employees of Respondent in said unit , in a secret ballot election conducted under the supervision of the Regional Di- rector for Region 21 , 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 July 25, 1975, 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 September 17, 1975, and at all times thereafter, the Union has requested the Respondent to bargain collectively with it as the ex- clusive collective-bargaining representative of all the employees in the above-described unit. Commencing on or about October 14, 1975, 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 October 14, 1975, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of the employees in the ap- propriate unit, and that, by such refusal, Respondent has engaged in and is engaging in unfair labor prac- 8 Although the Respondent's answer to the complaint denies a refusal to bargain , attached to the General Counsel's Motion for Summary Judgment as Exh . L is a letter dated October 14, 1975, purportedly sent by Respondent 's counsel to the Union denying its request to bargain. As the letter stands uncontroverted , and as it establishes that the Respondent has refused to bargain , we so find. 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, inti- mate, 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 commerce. V. THE REMEDY 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 commenc- es to bargain in good faith with the Union as the recognized bargaining representative 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); Bur- nett 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. Paramount General Hospital, Inc., is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Hospital and Service Employees Union, Local 399, Service Employees International Union, AFL- CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All employees employed by Respondent at its hospital located at 16453 South Colorado Boulevard, Paramount, California; excluding professional em- ployees, registered nurses, medical doctors, registry employees, employees of contract employers, guards, and supervisors as defined in the Act, constitute a 1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9(b) of the Act. 4. Since July 25, 1975, the above-named labor or- ganization has been and now is the certified and ex- clusive representative of all employees in the afore- said appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about October 14, 1975, 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 to them in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the mean- ing 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. (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 Paramount, California, hospital copies of the attached notice marked "Appendix." 9 Copies of said notice, on forms provided by the Re- gional Director for Region 21, after being duly signed by Respondent's representative, shall be post- ed 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 Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 21, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 9In 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" ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that Respondent, Para- mount General Hospital , Inc., Paramount , Califor- nia, 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 Hospital and Service Employees Union, Local 399, Service Employees In- ternational Union, AFL-CIO, as the exclusive bar- gaining representative of its employees in the follow- ing appropriate unit: All employees employed by Respondent at its hospital located at 16453 South Colorado Boule- vard, Paramount, California; excluding profes- sional employees, registered nurses, medical doctors, registry employees, employees of con- tract employers, guards, and supervisors as de- fined 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: 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 Hos- pital and Service Employees Union, Local 399, Service Employees International Union, AFL- CIO, as the exclusive representative of the em- ployees 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 represen- tative of all employees in the bargaining unit de- scribed below, with respect to rates of pay, wag- es, 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: PARAMOUNT GENERAL HOSPITAL 1021 All employees employed by Respondent at its medical doctors, registry employees, employ- hospital located at 16453 South Colorado ees of contract employers, guards, and super- Boulevard , Paramount , California; excluding visors as defined in the Act. professional employees, registered nurses, PARAMOUNT GENERAL HOSPITAL, INC.