Vicksburg Hospital, Inc.

National Labor Relations Board - Board Decisions

Aug 11, 1980

251 N.L.R.B. 6 (N.L.R.B. 1980)

6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Vicksburg Hospital, Inc. and Carpenters Local
Union 1964, United Brotherhood of Carpenters
& Joiners of America, AFL-CIO. Case 15-
CA-7681
August 11, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
Upon a charge filed on May 5, 1980, by Carpen-
ters Local Union 1964, United Brotherhood of Car-
penters & Joiners of America, AFL-CIO, herein
called the Union, and duly served on Vicksburg
Hospital, Inc., herein called Respondent, the Gen-
eral Counsel of the National Labor Relations
Board, by the Regional Director for Region 15,
issued a complaint on May 23, 1980, 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 were duly served on the par-
ties to this proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on January 31,
1980, following a Board election in Case 15-RC-
6527, the Union was duly certified as the exclusive
collective-bargaining representative of Respond-
ent's employees in the unit found appropriate;' and
that, commencing on or about April 18, 1980, and
at all times thereafter, Respondent has refused, and
continues to date to refuse, to bargain collectively
with the Union as the exclusive bargaining repre-
sentative, although the Union has requested and is
requesting it to do so. The complaint also alleges
that since or or about April 18, 1980, and at all
times thereafter, Resnondent has refused, and con-
tinues to refuse, to furnish, at the Union's request,
the names, adresses, classifications and wage rates
of all unit employees. On June 2, 1980, Respondent
filed its answer to the complaint admitting in part,
and denying in part, the allegations in the com-
plaint.
On June 6, 1980, counsel for the General Coun-
sel filed directly with the Board a Motion for Sum-
mary Judgment. Subsequently, on June 10, 1980,
the Board issued an order transferring the proceed-
Oflicial notice is taken of the record in the representation proceed-
ing, Case 15-RC-6527, 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. Penello, 269 F.Supp. 573
(D.C.Va. 1967); Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91
(7th Cir. 1968); Sec. 9(d) of the NLRA, as amended.
251 NLRB No. 3
ing to the Board and a Notice To Show Cause
why the General Counsel's Motion for Summary
Judgment should not be granted. Respondent
thereafter filed an opposition to the General Coun-
sel's motion to transfer the case to the Board and
for summary judgment and a response to Notice
To Show Cause.
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, 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, Respondent, in effect,
attacks the validity of the Union's majority status
and certification by disputing the appropriateness
of the unit and by contesting the failure to hold a
hearing and set aside the election based on Re-
spondent's objections. The General Counsel argues
that these material issues have been previously de-
cided, that there are no litigable issues of fact, and
thus that the Board should grant its Motion for
Summary Judgment on these issues. We agree with
the General Counsel.
Our review of the record herein, including the
record in Case 15-RC-6527, reveals that a repre-
sentation hearing in which Respondent participated
was held on October 2, 1979. Thereafter, on No-
vember 5, 1979, the Regional Director for Region
15 issued a Decision and Direction of Election in
which he found that the apropriate unit consisted
of all full-time and regular part-time nonprofes-
sional service, maintenance and technical employ-
ees at the Respondent's Vicksburg, Mississippi, fa-
cility, including licensed practical nurses, nurses
aides, technicians, housekeepers, dietary, grounds-
men, porter-orderlies, and laundry workers at Re-
spondent's Vicksburg, Mississippi, hospital; exclud-
ing all other employees, registered nurses, and
other professional employees, business office cleri-
cal employees, confidential employees, administra-
tive secretaries, managerial employees, guards and
supervisors as defined in the Act. Thereafter, on
November 15, 1979, Respondent filed a timely re-
quest for review of the Regional Director's deci-
sion, contesting the correctness of the unit finding.
On November 27, 1979, the request for review was
denied. On December 7, 1979, an election was con-
ducted among the employees in the unit found ap-
propriate. The tally of ballots indicated that of ap-
proximately 230 eligible voters, 148 cast ballots for,
and 66 against, the Union. There were 15 chal-
VICKSURGI HOSPITAL, INC. 7
lenged ballots, an insufficient number to affect the
results of the election.
Thereafter, on December 17, 1979, Respondent
filed objections to the election, contending in sub-
stance that the Union (1) threatened employees
with economic and physical retaliation if they
failed to join, support, or select the Union as their
representative; (2) offered or promised economic
inducements and benefits to employees if they
joined, supported, or selected the Union; (3) mis-
represented to employees various conditions of em-
ployment; and (4) misrepresented the Govern-
ment's role in the election and led employees to be-
lieve that the Board supported the Union in the
election. Respondent also requested a hearing on
these objections. On January 31, 1980, the Regional
Director issued a Supplemental Decision and Certi-
fication of Representative in which he found that
(1) the evidence failed to establish that the Union
threatened employees with, and requested Re-
spondent to, discharge an employee for violation of
Respondent's no-solicitation rule; (2) the evidence
failed to show that the Union improperly offered
to waive initiation fees in return for employee sup-
port; (3) the evidence did not sustain the allegation
that the Union misrepresented to employees the
nature of unfair labor practice and economic
strikes; and (4) the evidence did not demonstrate
that the Union misrepresented the Government's
role in the election or led employees to believe the
Board supported the Union. The Regional Director
also denied Respondent's request for a hearing. Ac-
cordingly, the Regional Director overruled the ob-
jections in their entirety and certified the Union as
the exclusive bargaining representative of the em-
ployees in the unit found appropriate.
Thereafter, on February 13, 1980, Respondent
requested that the Board review the Regional Di-
rector's Supplemental Decision and Certification of
Representative. Respondent also requested that the
Board reconsider its previous ruling on the appro-
priateness of the unit. The Board on April 2, 1980,
denied the requests as raising no substantial issues
warranting review.2
As previously noted, Respondent, in its answer
and in its response to the Notice To Show Cause,
challenges the validity of the Union's certification
by contesting the appropriateness of the unit and
by seeking to have the election set aside because of
alleged objectionable conduct by the Union. These
contentions were considered and rejected by the
Board at various stages in the underlying represen-
tation proceeding.
2 In denying review on the objections involving alleged misrepresenta-
tion, Member Penello relied on the rationale as set forth in Shopping Kart
Food Market, 228 NLRB 1311 (1977). See his dissenting opinion in Gener-
al Knit of California. Inc., 239 NLRB 619 (1978).
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 proceeding, and 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
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 find that Re-
spondent has at all material times herein refused to
recognize and bargain with the Union, upon re-
quest, and that its refusal to do so is in violation of
Section 8(a)(5) and (1) of the Act.
In its answer to the complaint, Respondent
admits that the Union requested it to furnish wage
and employment information pertaining to bargain-
ing unit employees. Respondent also admits that it
declined to meet with the Union for purposes of
collective bargaining concerning wages, hours, and
working conditions because of its alleged "good
faith doubt" that the Union represented a majority
of the employees in an appropriate unit for collec-
tive-bargaining purposes. Respondent does not
deny the relevance of the information requested,
but is seeking to relitigate issues previously decided
in a representation proceeding which, for reasons
stated above, is not a meritorious defense.
Accordingly, we find no material issues of fact
exist with regard to Respondent's refustal to fur-
nish wage and employment information sought by
the Union through its letter of April 9, 1980, and
that its refusal to do so violated Section 8(a)(5) and
(1) of the Act. We therefore 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 RESPONDENT
Respondent is a Mississippi corporation, with a
facility located at 3311 Frontage Road, Vicksburg,
Mississippi, where it is engaged in the dispensing of
health care services. In the 12 months preceding is-
suance of the complaint, a representative period,
Respondent, in the course and conduct of its oper-
a See Pittsburgh Plate Glass Co. v L RB . 313 U S. 146, 162 (1941);
Rules and Regulations of the Board, Secs 102.67(f) and 102 h6
9
(c)
VICKHURG HOSPITAL. INC .7
8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ations at Vicksburg, Mississippi, purchased and re-
ceived goods and materials valued in excess of
$50,000 directly from points located outside the
State of Mississippi. During the same representative
period, Respondent had gross receipts in excess of
$250,000.
We find, on the basis of the foregoing, that Re-
spondent is, and has bcen 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 LABOR ORGANIZATION INVOLVED
Carpenters Local Union 1964, United Brother-
hood of Carpenters & Joiners of America, AFL-
CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
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 full-time and regular part-time non-profes-
sional service, maintenance and technical em-
ployees at the Employer's Vicksburg, Missis-
sippi, facility, including licensed practical
nurses, nurses aides, technicians, housekeepers,
dietary, groundsmen, porter-orderlies, and
laundry workers at the Employer's Vicksburg,
Mississippi hospital; excluding all other em-
ployees, registered nurses, and other profes-
sional employees, business office clerical em-
ployees, confidential employees, administrative
secretaries, managerial employees, guards, and
supervisors as defined in the Act.
2. The certification
On December 7, 1980, a majority of the employ-
ees of Respondent in said unit, in a secret-ballot
election conducted under the supervision of the
Regional Director for Region 15, designated the
Union as their representative for the purpose of
collective bargaining with Respondent. The Union
was certified as the collective-bargaining repre-
sentative of the employees in said unit on January
31, 1980, and the Union continues to be such exclu-
sive representative within the meaning of Section
9(a) of the Act.
B. The Unfair Labor Practices
Commencing on or about April 9, 1980, 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 April 18, 1980, and continu-
ing at all times thereafter to date, Respondent has
refused, and continues to refuse, to recognize and
bargain with the Union as the exclusive representa-
tive for collective bargaining of all employees in
said unit, and has refused the Union's request for
the names, addresses, classifications, and wages
rates of employees in the unit.
Accordingly, we find that Respondent has, since
April 18, 1980, and at all times thereafter, refused
to bargain collectively with the Union as the exclu-
sive representative of the employees in the appro-
priate unit, and that, by such refusal, Respondent
has engaged in and is engaging in unfair labor prac-
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 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. We shall also order that Respondent,
upon request, shall furnish to the Union the infor-
mation with respect to unit employees which it re-
quested by letter dated April 9, 1980.
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.,
VICKSBURG HOSPITAL, 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:
CONCLUSIONS OF LAW
I. Vicksburg Hospital, Inc., is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Carpenters Local Union 1964, United Brother-
hood of Carpenters & Joiners of America, AFL-
CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. All full-time and regular part-time nonprofes-
sional service, maintenance and technical employ-
ees at the Employer's Vicksburg, Mississippi, facili-
ty, including licensed practical nurses, nurses aides,
technicians, housekeepers, dietary, groundsmen,
porter-orderlies, and laundry workers at the Em-
ployer's Vicksburg, Mississippi, hospital; excluding
all other employees, registered nurses, and other
professional employees, business office clerical em-
ployees, confidential employees, administrative sec-
retaries, managerial employees, and guards, and su-
pervisors as defined in the Act, constitute a unit ap-
propriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. Since January 31, 1980, 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 April 18, 1980, and at
all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive
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 refusing on or about April 18, 1980, and at
all times thereafter, to furnish relevant wage and
employment information concerning said unit em-
ployees, Respondent has engaged in and is engag-
ing in unfair labor practices within the meaning of
Section 8(a)(5) of the Act.
7. 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.
8. 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,
Vicksburg Hospital, Inc., Vicksburg, Mississippi, 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 Carpenters Local
Union 1964, United Brotherhood of Carpenters &
Joiners of America, AFL-CIO, as the exclusive
bargaining representative of its employees in the
following appropriate unit:
All full-time and regular part-time non-profes-
sional service, maintenance and technical em-
ployees at the Employer's Vicksburg, Missis-
sippi, facility, including licensed practical
nurses, nurses aides, technicians, housekeepers,
dietary, groundsmen, porter-orderlies, and
laundry workers at the Employer's Vicksburg,
Mississippi hospital; excluding all other em-
ployees, registered nurses, and other profes-
sional employees, business office clerical em-
ployees, confidential employees, administrative
secretaries, managerial employees, guards, and
supervisors as defined in the Act.
(b) Refusing to bargain collectively with the
above-named labor organization by refusing to fur-
nish said labor organization with relevant wage and
employment information concerning unit employ-
ees.
(c) 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) Upon request, bargain with the above-named
labor organization by furnishing it with the follow-
ing relevant information concerning unit employ-
9
10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ees: names, addresses, classifications, and wage
rates.
(c) Post at Vicksburg, Mississippi, facility copies
of the attached notice marked "Appendix." 4
Copies of said notice, on forms provided by the
Regional Director for Region 15, 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 insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 15,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
4 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 I'ursu-
ant to a Judgment of the United Stes Court of Appeals Enforcing an
Order of the National Labor Relations Board."
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 Carpenters Local Union 1964, United
Brotherhood of Carpenters & Joiners of Amer-
ica, AFL-CIO, as the exclusive representative
of the employees in the bargaining unit de-
scribed 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 full-time and regular part-time non-pro-
fessional service, maintenance and technical
employees at the Employer's Vicksburg,
Mississippi, facility, including licensed prac-
tical nurses, nurses aides, technicians, house-
keepers, dietary, groundsmen, porter-order-
lies, and laundry workers at the Employer's
Vicksburg, Mississippi hospital; excluding all
other employees, registered nurses, and
other professional employees, business office
clerical employees, confidential employees,
administrative secretaries, managerial em-
ployees, guards, and supervisors as defined
in the Act.
WE WILL, upon request, bargain collectively
with the above-named Union by furnishing it
with the following relevant information it has
requested concerning the unit employees:
names, addresses, classifications, and wage
rates.
VICKSBURG HOSPITAL, INC.