Bryan Memorial Hospital

National Labor Relations Board - Board Decisions

Nov 21, 1986

282 N.L.R.B. 235 (N.L.R.B. 1986)

BRYAN MEMORIAL HOSPITAL
Bryan Memorial Hospital and Nebraska Nurses As-
sociation affiliated with American Nurses Asso-
ciation . Cases 17-CA-12339, 17-CA-12529,
and 17-CA-13021
21 November 1986
DECISION AND ORDER
BY' CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
Upon charges filed by the Union on 24 Septem-
ber 1984, 14 March 1985, and 23 June 1986,1 the
General Counsel of the National Labor Relations
Board issued an amended consolidated complaint
on 14 August 1986 against: the Company, the Re-
spondent, alleging that it has violated Section
8(a)(5) and (1) of the National Labor Relations
Act.
The complaint alleges that on 8 March 1982 the
Union was certified as the exclusive collective-bar-
gaining representative of the Respondent's employ-
ees in the unit found appropriate.2 The complaint
also alleges that since 18 March 1984 the Respond-
ent has refused to bargain with the Union. On 12
September 1986 the Company filed its amended
answer admitting in part and denying in part the
allegations in the complaint.
On 22 September 1986 the General Counsel filed
a Motion to Transfer Proceeding to Board and for
Summary Judgment. On 26 September 1986 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 Company filed
a response.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
Ruling on Motion for Summary Judgment
The Respondent's answer admits the complaint's
allegation that its annual gross revenues are in
excess of $250,000 and that it annually purchases
goods and services valued in excess of $50,000 di-
rectly from sources outside the State of Nebraska.
It admits, in addition, that the unit is appropriate
and that the Union was certified as the exclusive
representative of the employees on 8 March 1982.
The Respondent's answer also admits that without
notifying the Union or bargaining, with it the Re-
' The Union filed an amended charge in Case 17-CA- 12529 on 10
April 1985.
2 After the Union was certified, the Respondent withdrew its recogni-
tion on 20 June 1983 . Pursuant to its decision in Bryan Memorial Hospital,
279' NLRB 222 (1986), the Board subsequently ordered the Respondent
to bargain with the Union on request , discontinue all unilateral changes
in the employment terms and conditions of its employees , and rescind all
previous unilateral changes on the Union 's request.
235
spondent established a layoff policy as of 18 March
1984, revised its leave-of-absence policy as of 10
June 1984, changed its long-term disability and life
insurance plans as of 1 October 1984, changed its
operating hours and day care service costs as of 1
November 1984, changed its sick leave policy as of
9 December 1984, changed its health insurance pre-
miums and coverage as of 1 January 1986, and es-
tablished attendance standards and a progressive
disciplinary system as of 1 March 1986. The Re-
spondent's answer denies that these actions either
affect commerce under the Act or constitute an im-
proper failure to bargain collectively with the
Union. It also denies that the Union, since 8 March
1982, has been, the exclusive collective-bargaining
representative of the employees. The Respondent
contends in its answer that any unilateral action
taken by it was permissible because the Respondent
properly withdrew its previous recognition of the
Union. In its response to the Notice to Show
Cause, the Respondent also admits that the parties
and primary issue of this case are the same as those
of Bryan Memorial Hospital, '279 NLRB 222 (1986).
The Respondent asserts that the Board should deny
summary judgment and dismiss the amended con-
solidated complaint because the earlier decision "is
now on appeal to the United States Court of Ap-
peals for the Eighth Circuit (Case No. 86-1549)."
The record establishes that pursuant to the
Board's decision on 9 April 1986 in Bryan Memori-
al Hospital, supra, the Respondent had an obliga-
tion to bargain with the Union on 20 June 1983 and
thereafter. The Board ordered the Respondent to
bargain with the Union on request, discontinue all
unilateral changes in the employment terms and
conditions of its employees, and "rescind the uni-
lateral changes made in the maternity leave policy
and the health insurance plan" on the Union's re-
quest. After the Board issued Bryan Memorial Hos-
pital, the Respondent continued, by the actions de-
scribed above, to make unilateral changes in its em-
ployees' terms, and conditions of employment.3
Regarding the Respondent's assertion that these
unilateral actions were permissible because it had
properly withdrawn its previous recognition, of the
Union, the General Counsel contends, in its Motion
2 On 5 September 1986, in its "Request for Administrative Notice and
Waiver of Trial" in the instant case, the Respondent requested that the
judge take administrative notice of the record in Bryan Memorial Hospi-
tal, supra. In its response , the General Counsel contended that the Re-
spondent 's request was improper because the issue of the Union's repre-
sentative status and the Respondent 's 20 June 1983 withdrawal 'of recog-
nition "is res judicata in the current proceedings." On 10 September 1986
Administrative Law Judge Leonard M. Wagman, in his "Order on Re-
quest for Administrative Notice and Waiver of Trial," found that the Re-
spondent was precluded from rehtigating the appropriateness of its previ-
ous withdrawal of recognition . On 15 September 1986 the Regional Di-
rector issued an order postponing hearing indefinitely.
282 NLRB No. 32
236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for Summary Judgment, that the "issue is res judi-
cata, and may not be raised or re-litigated in the in-
stant matter."
The Respondent admits that the issue and parties
of the previous proceeding are identical but argues
that the pendency of the previous proceeding's
Federal appeal necessitates a dismissal of the com-
plaint. However, it is well settled that "an employ-
er is not entitled to refuse to bargain with the certi-
fied representative of its employees while it liti-
gates the validity of that certification. in the courts
of appeals."4 Because all jurisdictional and eviden-
tiary issues raised by the Respondent have been liti-
gated in the previous unfair labor practice proceed-
ing, we find that the Respondent has not raised any
issue that is properly litigable. Accordingly, we
grant the Motion for Summary Judgment.
On the entire record, the Board makes the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a Nebraska nonprofit corpora-
tion, operates a health care facility in Lincoln, Ne-
braska. During the past 12 months,,a representative
period, the Respondent, in the course of its busi-
ness operations , earned gross revenues in excess, of
$250,000 and purchased goods and services valued
in excess of $50,000 directly from sources outside
the State of Nebraska. We find that the Company
is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and that
the Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
The Union was certified on 8 March 1982 as the
collective-bargaining representative of the employ-
ees in the following appropriate unit:
All full-time and regularly scheduled part-time
General Duty Registered Nurses, Special Duty
Registered Nurses, Admitting Nurse, Assistant
Course Director (CRNA-School of Anesthesi-
ology), Assistant Head Nurse I, Assistant Head
Nurse II, Cardiac Rehab. Med. Coordinator,
Cardiac Rehab. Nurse, Critical Care Nurse,
CR Special Procedures RN, Educational Co-
ordinator, Ed. Coordinator ICU/CCU, Epide-
miologist, G.I. Assistant - RN, M.H.T. Nurse,
MICU Instructor, MICU - RN Mobile Heart
Team Nurse, Nuclear Medicine Tech., Nurse
Anesthetist, Nurse Coordinator, Nursing Edu-
4 Benchmark Industries, 269 NLRB 1096, 1098 ( 1984).
cation Instructor, Nursing Education Instruc-
tor w/degree, Onocology Nurse, Open Heart
Team Leader, 0 & T Coordinator, Pre-op
Teaching Nurse, Production Coordinator, Pa-
tient Review Coordinator, Patient Teaching
Facilitator, Pulmonary Function Tech., Radi-
ology Staff Nurse, Rheumatology Nurse, Staff
Div. Inst. w/o degree, Staff Nurse - ER, Staff
Nurse - Med/Surg., Staff Nurse - OB, Staff
Nurse - Obstetrics, Staff Nurse - OR, Staff
Nurse - Par, Staff Pharmacist, Staff Supervi-
sor, Surgical Care Sec. Dir., and Ultrasound
Tech., EXCLUDING Guards, Admitting Su-
pervisor, Area Director, Associate Director
Nursing Education, Asst. Director Food Serv-
ice, Assistant Director Human Resources,
Asst. Director Medical Records, Assistant Di-
rector Pharmacy, Assistant Director Surgery
Suite, Cardiology Supervisor, Cardiovascular
Lab Supervisor, Central Service Supervisor,
Chief Medical Technologist, Communications
Specialist, Computer Operations Supervisor,
Day Care Director, Dietician, Director of An-
esthesia, Director of CGR Services, Director
of Computer Services, Director of Electroen-
cephalography, Director of Engineering, Di-
rector of Food Service, Director of Health
Planning, Director of Human Resources, Di-
rector of Internal Auditing, Director of Main-
tenance, Director of Management Accounting,
Director of Medical Records, Director of
Nursing Adm. Service, Director of Operations
Analysis, Director of Pastoral Care, Director
of Patient Account Services, Director of Phar-
macy, Director of Physical Therapy, Director
of Plant` Operations, Director of Public
Relations/Fund Dev., Director of Radiology,
Director of Respiratory Theraphy, Director of
Social Service, Director of Volunteer Serv-
ices, Education/Training Coordinator, General
Accounting Supervisor, General Stores/Dist.
Supervisor, G.I. Lab Supervisor, Head Nurse,
House Supervisor, Medical Records Supervi-
sor, Nursing Education Clinical Coordinator,
Nursing Education Med/Surg. Coordinator,
Nursing Education Supervisor, Nursing Serv-
ice Education Supervisor; Patient Accounting
Supervisor, Patient Service Supervisor, Pay-
roll Supervisor, PBX Supervisor, President,
Purchasing Agent, Radiology Office Supervi-
sors, Repr/Micrographics Supervisor, Respira-
tory Theraphy Lead Tech., Shipping/Receiv-
ing Supervisor, Special Procedures Supervisor,
Tech. Director Radiology, Utilization Review
Coordinator, Vice-President (Division A),
Vice-President (Division B), Vice-President
BRYAN MEMORIAL HOSPITAL
(Division C), Supervisors aS defined in the
Act, and all other employees.
The Union continues to be the exclusive represent-
ative under Section 9(a) of the Act.
B. Refusal to Bargain
Without notifying the Union or bargaining with
it, the Respondent established a layoff policy as of
18 March 1984, revised its leave-of-absence policy
as of 10 June 1984, changed its long-term disability
and life insurance plans as of 1 October 1984,
changed its operating hours and day care service
costs as of 1 November 1984, changed its sick
leave policy as of 9 December 1984, changed its
health insurance premiums and coverage as of 1
January 1986, and established attendance standards
and a progressive disciplinary system as of 1 March
1986. We find that the, Respondent, by committing
these actions, has unlawfully refused to bargain in
violation of Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
By establishing a layoff policy as of 18 March
1984, revising its leave-of-absence policy as of 10
Jame 1984, changing its long-term disability and life
insurance plans as of 1 October 1984, changing its
operating hours and day care service costs as of 1
November 1984, changing its sick leave policy as
of 9 December 1984, changing its health insurance
premiums and coverage as of 1 January 1986, and
establishing attendance standards and a progressive
disciplinary system as of 1 March 1986 without no-
tifying the Union or bargaining with it, the Re-
spondent has engaged in unfair labor practices af-
fecting 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, to rescind all previous unilateral changes in
its employees' terms and conditions of employment
on the Union's request and, if an understanding is
reached, to embody the understanding in a signed
agreement. s
ORDER
The National Labor Relations Board orders that
the Respondent, Bryan Memorial Hospital, Lin-
coln, Nebraska, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
s The General Counsel requests a visitatorial clause. Under the circum-
stances of this case, we deny the General Counsel's request.
237
ja)- -Refusing to-,bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment with Nebraska Nurses
Association affiliated with American Nurses Asso-
ciation as the exclusive bargaining representative of
its employees in the certified unit of nurses.
(b) Making unilateral changes in the terms and
conditions of employment of the bargaining unit
employees.
(c) In any like or, related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) On request, bargain with the Union as the ex-
clusive representative of all employees in the afor-
enamed 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 understanding in a signed agreement.
(b) On request of the Union, rescind the unilater-
al changes made in the layoff policy, leave-of-ab-
sence policy, long-term disability and life insurance
plans, operating hours and day care service costs,
sick leave policy, health insurance premiums and
coverage, attendance standards, and disciplinary
system for bargaining unit employees,
(c) Make the unit employees whole for any
losses they may have suffered as a result of, the uni-
lateral changes in their terms and conditions of em-
ployment, with interest to be computed in accord-
ance with Florida Steel Corp., 231 NLRB 651
(1977).
(d) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all 'other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(e) Post at its Lincoln, Nebraska facility copies
of the attached notice marked "Appendix."s
Copies of the notice, on forms provided by the Re-
gional Director for Region 17, after being signed
by the Respondent's authorized representative,
shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
8 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 Nation-
al 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."
238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to ensure that the notices are not altered, defaced,
or'covered by any other material.
(f) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps 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 violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT refuse to bargain collectively con-
cerning rates of pay, wages, hours, and other -terms
and conditions of employment with Nebraska
Nurses Association affiliated with American Nurses
Association as the exclusive bargaining representa-
tive of our employees in the certified bargaining
unit of nurses.
WE WILL NOT make unilateral changes in the
terms and conditions of employment of the bar-
gaining unit employees.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL, on request, bargain with the Union as
the exclusive representative of all employees in the
appropriate unit with respect to rates of pay,
wages, hours, and other terms and conditions of
employment, and, if an agreement is reached, WE
WILL embody such agreement in a signed contract.
WE WILL, on request of the Union, rescind the
unilateral changes made in the layoff policy, leave-
of-absence policy, long-term disability and life in-
surance plans, operating hours and day care service
costs, sick leave policy, health insurance premiums
and coverage, attendance standards, and discipli-
nary system for bargaining unit employees.
WE WILL make employees whole for any losses
that they may have suffered as a result of the uni-
lateral changes in the terms and conditions of em-
ployment, plus interest.
BRYAN MEMORIAL HOSPITAL