Mary Thompson Hospital

National Labor Relations Board - Board Decisions

Apr 5, 1979

241 N.L.R.B. 766 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mary Thompson Hospital and Local 399, Interna-
tional Union of Operating Engineers, AFL-CIO.
Case 13-CA-18147
April 5, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND TRUESDAI.E
Upon a charge filed on October 24, 1978, by Local
399, International Union of Operating Engineers,
AFL-CIO, herein called the Union, and duly served
on Mary Thompson Hospital, herein called Respon-
dent, the General Counsel of the National Labor Re-
lations Board, by the Regional Director for Region
13, issued a complaint on November 16, 1978, 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 September 15,
1978, following a Board election in Case 13-RC-
14798, the Union was duly certified as the exclusive
collective-bargaining representative of Respondent's
employees in the unit found appropriate;' and that,
commencing on or about October 23, 1978, and at all
times thereafter, Respondent has refused, and contin-
ues to date to refuse, to bargain collectively with the
Union as the exclusive bargaining representative, al-
though the Union has requested and is requesting it
to do so. One November 28, 1978, Respondent filed
its answer to the complaint admitting in part, and
denying in part, the allegations in the complaint.
On December 18, 1978, counsel for the General
Counsel filed directly with the Board a motion to
transfer proceedings to the Board and Motion for
Summary Judgment, and Respondent thereafter filed
an opposition to the motion to transfer the proceed-
ings to the Board and to the Motion for Summary
Judgment. Subsequently, on January 15, 1979, the
Board issued an order transferring the proceeding to
the Board and a Notice To Show Cause why the Gen-
Official notice is taken of the record in the representation proceeding,
Case 13-RC 14798, as the term "record" is defined in Secs. 102.68 and
10
2
.6
9
(g) of the Board's Rules and Regulations, Series 8. as amended. See
LTV Electrosvsenms, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (4th Cir.
1968); Golden Age Beverage Co., 167 NLRB 151 11967), enfd. 415 F.2d 26
(5th Cir. 1969); Iniertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va. 1967):
Follerr Corp, 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968): Sec.
9(d) of the NLRA, as amended.
eral Counsel's Motion for Summary Judgment should
not be granted. Respondent thereafter filed a re-
sponse to the Notice To Show Cause, and the Charg-
ing Party filed an answer to Respondent's 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
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or special
circumstances a respondent in a proceeding alleging 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.2 Respondent, how-
ever, contends that it does possess "newly discovered
and/or previously unavailable evidence," which
raises substantial and material issues of fact bearing
upon the appropriateness of the unit and the status of
one individual whom the Board included within the
unit. Therefore, Respondent asserts that the Board
must order a hearing to resolve these issues. The evi-
dence which Respondent would adduce at such a
hearing may be divided into three categories.
First, Respondent states that prior to the hearing
on the Charging Party's petition to represent a unit
limited to Respondent's stationary engineers, it "had
coverted to low pressure boilers, and, as a result, there
was no requirement that individuals operating the
boilers be licensed; and, furthermore, that there was
substantial contact and interchange between the sta-
tionary engineers and other nonprofessional employ-
ees within the Hospital." Such evidence, by Respon-
dent's own admission, was thus not "previously
unavailable," because it existed at the time of the rep-
resentation hearing. As for its being "newly discov-
ered," Respondent states that at the time of the hear-
ing, the position of hospital administrator was vacant
and therefore "many important facts concerning the
status of individuals at issue" were not available, and
further, that subsequent to the hearing, it changed
labor counsel and new labor counsel "discovered"
pertinent facts such as those noted above which had
not been placed in the record. We find no merit in
Respondent's position. Evidence is not newly discov-
ered such as to warrant a further hearing unless it is
"evidence of facts in existence at the time of the trial
of which the aggrieved party was excusably igno-
rant,"3 and unless the moving party provides facts
2 See Pittsburgh Plate Glass Co. v. ,.L.R.B.. 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c).
'.L.R.B. v. Joseph E. Decker and Sons, 569 F.2d 357, 364 (5th Cir. 1978).
241 NLRB No. 119
766
MARY THOMPSON HOSPITAL
implying "reasonable diligence."4 Measured by this
standard, Respondent cannot assert that it was "ex-
cusably ignorant" of the fact it now seeks to prove or
that it failed to introduce them at the hearing not-
withstanding the exercise of "reasonable diligence"
on its part. Indeed, Respondent seems to be saying
that this "newly discovered" evidence was not pro-
duced earlier as a direct consequence of its own neg-
ligence and that of its former counsel.
Second, as "newly discovered and/or previously
unavailable evidence," Respondent points to a peti-
tion filed a month after the certification of the Charg-
ing Party herein by Hospital Employees Labor Pro-
gram of Metropolitan Chicago (HELP), a labor
organization representing approximately 135 of Re-
spondent's 440 employees, for a residual unit of un-
represented nonprofessional employees of Respon-
dent or, alternatively, for an election to determine
whether the petitioned-for employees desire to be rep-
resented by HELP in the existing unit of service and
maintenance employees and licensed practical nurses
currently represented by HELP (Case 13-RC- 14910).
On December 22, 1978, the Regional director granted
HELP's alternative request for a self-determination
election among these employees. On January 24,
1979, the Board granted review of the Regional Di-
rector's decision in Case 13-RC-14910, insofar as it
related to an issue of the scope of the voting group
which would participate in the election. This evidence
is not newly discovered because it did not exist at the
time of the hearing. While the fact of HELP's petition
might technically be regarded as previously unavail-
able evidence, it does not require a further hearing in
this case because it is not material to the issue of the
appropriate unit in the instant proceeding. Respon-
dent argues that the stationary engineers, of whom
the Charging Party is the certified representative,
should be included in the voting group in the self-
determination election which will ultimately be held
in Case 13-RC-14910. There is no merit to this con-
tention. After a full hearing on the matter, the Board
decided in the underlying representation case herein
that Respondent's stationary engineers constituted a
separate, appropriate unit and certified it. Subsequent
petitions by different labor organization seeking to
represent other employees cannot and do not affect
the validity of that certification.5
Third, Respondent contends that a hearing should
be held to determine the status of Rogers Cosby,
assistant chief engineer. At the underlying representa-
Id. at 363.
For this reason. we also deny Respondent's motion to consolidate this
case with Case 13-RC- 14910. Respondent has also requested oral argument.
This request is hereby denied as the record, the exceptions, and the briefs
adequately present the issues and the positions of the parties.
tion hearing, Respondent entered into a formal stipu-
lation with the Charging Party that Cosby was not a
supervisor as defined in the Act. Based upon this
stipulation, as well as upon record evidence, the Re-
gional Director included Cosby in the unit. However,
on the day of the election Respondent entered into
another stipulation with a representative of the
Charging Party, although apparently without the
knowledge or consent of the Charging Party's attor-
ney, that Cosby was indeed a statutory supervisor.
Cosby voted subject to challenge in the election, but
his ballot was not determinative because the Charg-
ing Party won by a vote of three to zero, and there-
fore the Regional Director made no further determi-
nation regarding Cosby's status. Respondent does not
allege that circumstances have changed since the rep-
resentation hearing which would warrant a different
result concerning Cosby, but rather it relies solely
upon the subsequent stipulation. For this reason, we
decline to overturn the formal stipulation made at the
hearing that Cosby was not a supervisor, supported as
it was by record evidence. In any event, whether
Cosby is or is not a supervisor provides no defense in
this summary judgment proceeding. For one thing,
the Charging Party's majority status is not affected
because Cosby's ballot was not determinative of the
outcome. Also, the basic appropriateness of the certi-
fied unit is not altered by the question of Cosby's unit
placement. See Glen Manor-Home for the Jewish
Aged, 196 NLRB 1166, footnote 2, (1972), affd. 474
F.2d 1145, 1150 (6th Cir. 1973), cert. denied 414 U.S.
826; Houston Chronicle Publishing Co., 130 NLRB
1243, 1245-46 (1961), enforcement denied on other
grounds 300 F.2d 273 (5th Cir. 1962). Of course, the
parties are free to seek to resolve Cosby's status be-
tween themselves through bargaining; and, if they
cannot agree, either party may file a petition for unit
clarification with the Board to obtain a final ruling.
See National Labor Relations Board Rules and Regu-
lations, Series 8, as amended, Section 102.60(b).
Thus, it is plain that Respondent has no "newly
discovered and/or previously unavailable evidence,"
which would require the Board to reexamine the deci-
sion made in the representation proceeding. All issues
raised by Respondent in this proceeding were or
could have been litigated in the prior representation
proceeding. We therefore find that Respondent has
not raised any issue which is properly litigable in this
unfair labor practice proceeding. Accordingly, we
grant the Motion for Summary Judgment.
On the basis of the entire record, the Board makes
the following:
767
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is a hospital engaged in the business of
providing health care services at its office and place of
business at 140 North Ashland Avenue, Chicago, Illi-
nois. During calendar year 1977, a representative pe-
riod, Respondent, in the course and conduct of its
business operations, received gross revenues in excess
of $250,000, and purchased and received at its Illinois
facility goods valued in excess of $50,000 directly
from points located outside the State of Illinois.
We find, on the basis of the foregoing, that Respon-
dent is, and has been 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.
1. THE LABOR ORGANIZATION INVOLVED
Local 399, International Union of Operating Engi-
neers, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
111. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of Respondent constitute
a unit appropriate for collective-bargaining purposes
within the meaning of Section 9(b) of the Act:
All licensed stationary engineers employed by
Respondent at its hospital now located at 140
North Ashland Avenue, Chicago, Illinois, but
excluding professional employees, guards and su-
pervisors as defined in the Act and all other em-
ployees.
2. The certification
On September 7, 1978, 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 13, designated the Union as their
representative for the purpose of collective bargaining
with Respondent. The Union was certified as the col-
lective-bargaining representative of the employees in
said unit on September 15, 1978, and the Union con-
tinues 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 October 6, 1978, and at
all times thereafter, the Union has requested Respon-
dent to bargain collectively with it as the exclusive
collective-bargaining representative of all the employ-
ees in the above-described unit. Commencing on or
about October 23, 1978, and continuing at all times
thereafter to date, Respondent has refused, and con-
tinues 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 Respondent has, since
October 23, 1978, and at all times thereafter, refused
to bargain collectively with the Union as the exclu-
sive representative of the employees in the appropri-
ate unit, and that, by such refusal, Respondent has
engaged in and is engaging in unfair labor practices
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 operations
described in section I, above, have a close, intimate,
and substantial relationship to trade, traffic, and com-
merce 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 commences
to bargain in good faith with the Union as the recog-
nized bargaining representative in the appropriate
unit. See Mar-Jac Poultry Company, Inc., 136 NLRB
785 (1962); Commerce Company, d/bla Lamar Hotel,
140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th
Cir. 1964), cert. denied 379 U.S. 817; Burnett Con-
struction Company, 149 NLRB 1419, 1421 (1964),
enfd. 350 F.2d 57 (10th Cir. 1965).
768
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
I. Mary Thompson Hospital is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Local 399, International Union of Operating
Engineers, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. All licensed stationary engineers employed by
the Respondent at its hospital now located at 140
North Ashland Avenue, Chicago, Illinois, but exclud-
ing professional employees, guards, and supervisors
as defined in the Act and all other employees, consti-
tute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the
Act.
4. Since September 15, 1978, the above-named la-
bor organization has been and now is the certified
and exclusive representative of all employees in the
aforesaid unit for the purpose of collective bargaining
within the meaning of Section 9(a) of the Act.
5. By refusing on or about October 23, 1978, 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)(l) 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.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondent, Mary
Thompson Hospital, Chicago, Illinois, its officers,
agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and con-
ditions of employment with Local 399, International
Union of Operating Engineers, AFL-CIO, as the ex-
clusive bargaining representative of its employees in
the following appropriate unit:
MARY THOMPSON HOSPITAL
All licensed stationary engineers employed by
Respondent at its hospital now located at 140
North Ashland Avenue, Chicago, Illinois, but
excluding professional employees, guards and su-
pervisors as defined in the Act and all other em-
ployees.
(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:
(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 understand-
ing is reached, embody such understanding in a
signed agreement.
(b) Post at its office and place of business located
at 140 North Ashland Avenue, Chicago, Illinois, cop-
ies of the attached notice marked "Appendix."6 Cop-
ies of said notice, on forms provided by the Regional
Director for Region 13, after being duly signed by
Respondent's representative, shall be posted by Re-
spondent 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 13, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
6 In the event that this Order is enforced by a judgment of a Urnted 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."
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 Local
399, International Union of Operating Engi-
neers, AFL-CIO, as the exclusive representative
of the employees in the bargaining unit described
below.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
769
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 representa-
tive of all employees in the bargaining unit de-
scribed below, 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. The bargaining unit is:
All licensed stationary engineers employed
by Respondent at its hospital now located at
140 North Ashland Avenue, Chicago, Illinois,
but excluding professional employees, guards
and supervisors as defined in the Act and all
other employees.
MARY THOMPSON HOSPITAL
770