Sunrise Mountainview Hospital, Inc. d/b/a Mountainview Hospital

National Labor Relations Board - Unpublished Board Decisions

May 1, 2012

28-CA-023100 (N.L.R.B. May. 1, 2012)

NOT TO BE INCLUDED PHG
IN BOUND VOLUMES Las Vegas, NV
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
SUNRISE MOUNTAINVIEW HOSPITAL, INC.
d/b/a MOUNTAINVIEW HOSPITAL
and Case 28-CA-23100
CALIFORNIA NURSES ASSOCIATION/
NATIONAL NURSES ORGANIZING
COMMITTEE (CNA/NNOC)
ORDER DENYING MOTION FOR RECONSIDERATION
On November 30, 2011, the National Labor Relations Board issued a
Decision and Order1 affirming the judge's recommended finding that the
Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally scheduling
four on-call nurses on July 5, 2010 (the observed July 4 holiday), instead of
following its normal holiday staffing policy of scheduling two on-call nurses with
one backup. On December 22, 2011, the Respondent filed a motion for
reconsideration of the Board’s Decision and Order.
The National Labor Relations Board has delegated its authority in this
proceeding to a three-member panel.
The Respondent argues that the Board erroneously failed to consider
whether the Respondent also violated Section 8(a)(5) and (1) of the Act by
unilaterally departing from its established surgical scheduling policy by permitting

1 357 NLRB No. 122.
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physicians to schedule elective surgeries on a holiday. The Board found that
because the staffing change was unlawful, the additional finding would be
cumulative and would not affect the remedy. The Respondent asserts that the
Board failed to fulfill its obligation under Section 10(c) of the Act to resolve issues
before it. The Respondent further argues that as a result, the Board refused to
consider the Respondent’s defense that it was not required to bargain with the
Union regarding the effects of scheduling elective surgeries on a holiday--e.g.,
the scheduling of nurses to staff those surgeries--because the scheduling of
surgical cases is a core entrepreneurial function and, as such, not a mandatory
subject of bargaining.
It is common for the Board to decline to pass on issues when such a
finding would be cumulative and would not materially affect the remedy, see,
e.g., Management Consulting, Inc. (MANCON) , 349 NLRB 249, 249 fn. 2 (2007),
and this practice has been met with approval in the courts. See United
Steelworkers of America v. NLRB (Mississippi Steel Corp.), 405 F.2d 1373, 1377
(D.C. Cir. 1968), enforcing in relevant part 169 NLRB 647 (1968). Further, the
Respondent has failed to cite any relevant authority for its position that Section
10(c) requires the Board to pass on every allegation presented by the General
Counsel.
Because the Board found that the Respondent violated Section 8(a)(5)
and (1) of the Act by unilaterally departing from its established holiday staffing
policy, the Board’s ordered remedy--to cease and desist from failing and refusing
to bargain with the Union--would not be altered were the Board to additionally
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find that the Respondent violated Section 8(a)(5) and (1) by unilaterally
scheduling elective surgeries on an observed holiday. Even if the Board were to
find merit to the Respondent’s defense that surgical scheduling is not a
mandatory subject of bargaining but rather a core entrepreneurial function, the
result would not change; the Board would nonetheless find that the Respondent
violated Section 8(a)(5) and (1) of the Act by its refusal to bargain over the
effects of that decision, including the Respondent’s alteration of the nurses’
schedules. Accord King Soopers, Inc., 340 NLRB 628 (2003).
Thus, having duly considered the Respondent’s motion, we find that the
motion fails to present “extraordinary circumstances” warranting reconsideration
under Section 102.48(d)(1) of the Board's Rules and Regulations.
IT IS ORDERED, therefore, that the motion for reconsideration is denied.
Dated, Washington, D.C., May 1, 2012.
___________________________________
Mark Gaston Pearce, Chairman

___________________________________
Brian E. Hayes, Member
___________________________________
Richard F. Griffin, Jr., Member
(SEAL) NATIONAL LABOR RELATIONS BOARD