SCL Health, St. James Medical Group, Rocky Mountain Clinic

National Labor Relations Board - Board Decisions

Feb 12, 2020

369 N.L.R.B. 29 (N.L.R.B. 2020)

369 NLRB No. 29
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
SCL Health, St. James Medical Group, Rocky Moun-
tain Clinic and Montana Nurses Association.
Case 19–CA–242468
February 12, 2020
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN AND
EMANUEL
This is a refusal-to-bargain case in which the Re-
spondent, SCL Health, St. James Medical Group, Rocky
Mountain Clinic, is contesting the Union's certification as
bargaining representative in the underlying representa-
tion proceeding. Pursuant to a charge filed on May 29,
2019, by the Montana Nurses Association (the Union),
the General Counsel issued the complaint on August 9,
2019, alleging that the Respondent has violated Section
8(a)(5) and (1) of the Act by failing and refusing to rec-
ognize and bargain with the Union following the Union's
certification in Case 19–RC–233533. (Official notice is
taken of the record in the representation proceeding as
defined in the Board's Rules and Regulations, Secs.
102.68 and 102.69(d). Frontier Hotel, 265 NLRB 343
(1982).) The Respondent filed an answer, admitting in
part and denying in part the allegations in the complaint
and asserting an affirmative defense.
On August 26, 2019, the General Counsel filed a Mo-
tion for Summary Judgment. On August 29, 2019, 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 Respondent filed a response
to the Notice to Show Cause and corresponding exhibits.
The General Counsel filed a response.
Ruling on Motion for Summary Judgment
The Respondent admits its refusal to bargain, but con-
tests the validity of the Union’s certification on the basis
of its contentions, raised and rejected in the underlying
representation proceeding, that the certification was im-
proper because the unit is inappropriate.1
1 The Respondent’s answer denies those portions of the complaint
that set forth the appropriate unit or assert that the Union is the unit
employees’ exclusive collective-bargaining representative. The Re-
spondent’s affirmative defense similarly asserts that the certification
was issued without basis, is contrary to law, and is not valid and en-
forceable because the bargaining unit is not an appropriate unit. The
unit issue, however, was fully litigated and resolved in the underlying
representation proceeding, and the certification is therefore valid.
Accordingly, the Respondent’s denial of the appropriateness of the unit
does not raise any litigable issues in this proceeding.
All representation issues raised by the Respondent
were or could have been litigated in the prior representa-
tion proceeding. The Respondent does not offer to ad-
duce at a hearing any newly discovered and previously
unavailable evidence, nor does it allege any special cir-
cumstances that would require the Board to reexamine
the decision made in the representation proceeding. We
therefore find that the Respondent has not raised any
representation issue that is properly litigable in this un-
fair labor practice proceeding. See Pittsburgh Plate
Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accord-
ingly, we grant the Motion for Summary Judgment.2
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent has been a State
of Montana corporation with an office and place of busi-
ness in, among other places, Butte, Montana, where it is
engaged in the business of providing health care services.
During the 12-month period preceding the issuance of
the complaint, the Respondent, in conducting its opera-
tions described above, derived gross revenues in excess
of $250,000 and purchased and received at its Butte,
Montana facility goods and materials valued in excess of
$50,000 directly from points located outside the State of
Montana.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act, a health care institution within the mean-
ing of Section 2(14) of the Act, and that the Union is a
labor organization within the meaning of Section 2(5) of
the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
At all materials times the following individuals held
the positions set forth opposite their names and have
been supervisors of the Respondent within the meaning
of Section 2(11) of the Act and/or acting as agents of the
Additionally, in its response to the notice to show cause, the Re-
spondent argues that Boeing Co., 368 NLRB No. 67 (2019), issued
after the unit was certified, supports the Respondent’s contention that
the unit was inappropriate. Because the issuance of that case did not
create any new issues here, we find that the Respondent has not estab-
lished special circumstances warranting reconsideration of the Board's
decision in the underlying representation proceeding.
2 Member Emanuel did not participate in the underlying representa-
tion proceeding. He expresses no opinion on the merits of the Board’s
decision in that proceeding. Nevertheless, he agrees with his col-
leagues that the Respondent has not raised any new matters that are
properly litigable in this unfair labor practice proceeding and that sum-
mary judgment is appropriate, with the parties retaining their respective
rights to litigate relevant issues on appeal.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
Respondent within the meaning of Section 2(13) of the
Act, acting on the Respondent’s behalf:
JP Valin, MD - Chief Clinical Officer
Scott Baker - COO
Kristin Chiamulera - Clinical Manager
Tom Moser - VP of Operations
Unnamed Agent - Outside Counsel
Heidi Saunders - Director of HR
Following the representation election held on February
14, 2019, the Union was certified on February 22, 2019,
as the exclusive collective-bargaining representative of
the employees in the following appropriate unit:
All full-time, part-time, and per-diem registered nurses
employed by Respondent at its clinics located at 435 S.
Crystal Street, 305 W. Porphyry Street, and 1300 W.
Park Street in Butte, Montana; excluding all other em-
ployees, guards and supervisors as defined by the Act.
On July 26, 2019, the Board denied the Respondent’s
request for review of the Union’s certification. The Un-
ion continues to be the exclusive collective-bargaining
representative of the unit employees under Section 9(a)
of the Act.
B. Refusal to Bargain
On April 18 and May 8, 2019, by email, the Union re-
quested that the Respondent recognize and bargain col-
lectively with the Union as the exclusive collective-
bargaining representative of the Unit. Since about May
8, 2019, the Respondent, by email from its unnamed
agent listed above, has failed and refused to recognize
and bargain with the Union as the exclusive collective-
bargaining representative of the unit.
We find that the Respondent's conduct constitutes an
unlawful failure and refusal to recognize and bargain
with the Union in violation of Section 8(a)(5) and (1) of
the Act.
CONCLUSION OF LAW
By failing and refusing, since May 8, 2019, to recog-
nize and bargain with the Union as the exclusive collec-
tive-bargaining representative of the Unit, the Respond-
ent has engaged in unfair labor practices affecting com-
merce 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 recognize and bargain on request with the Un-
ion and, if an understanding is reached, to embody the
understanding in a signed agreement.
To ensure that the employees are accorded the services
of their selected bargaining agent for the period provided
by law, we shall construe the initial period of the certifi-
cation as beginning on the date the Respondent begins to
bargain in good faith with the Union. Mar-Jac Poultry
Co., 136 NLRB 785 (1962); accord Burnett Construction
Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57
(10th Cir. 1965); Lamar Hotel, 140 NLRB 226, 229
(1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied
379 U.S. 817 (1964).
ORDER
The National Labor Relations Board orders that the
Respondent, SCL Health, St. James Medical Group,
Rocky Mountain Clinic, Butte, Montana, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
Montana Nurses Association (the Union) as the exclusive
collective-bargaining representative of the employees in
the bargaining unit.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive
collective-bargaining representative of the employees in
the following appropriate unit on terms and conditions of
employment and, if an understanding is reached, embody
the understanding in a signed agreement:
All full-time, part-time, and per-diem registered nurses
employed by Respondent at its clinics located at 435 S.
Crystal Street, 305 W. Porphyry Street, and 1300 W.
Park Street in Butte, Montana; excluding all other em-
ployees, guards and supervisors as defined by the Act.
(b) Within 14 days after service by the Region, post at
its facilities in Butte, Montana, copies of the attached
notice marked “Appendix.”3 Copies of the notice, on
forms provided by the Regional Director for Region 19,
after being signed by the Respondent's authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
3 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
SCL HEALTH, ST. JAMES MEDICAL GROUP, ROCK MOUNTAIN CLINIC 3
tomarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent custom-
arily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material. If the Respondent has gone
out of business or closed any of the facilities involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since May 8, 2019.
(c) Within 21 days after service by the Region, file
with the Regional Director for Region 19 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. February 12, 2020
______________________________________
John F. Ring, Chairman
______________________________________
Marvin E. Kaplan, Member
________________________________________
William J. Emanuel Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
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 Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT fail and refuse to recognize and bargain
with the Montana Nurses Association (the Union) as the
exclusive collective-bargaining representative of our
employees in the bargaining unit.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, on request, bargain with the Union and put
in writing and sign any agreement reached on terms and
conditions of employment for our employees in the fol-
lowing bargaining unit:
All full-time, part-time, and per-diem registered nurses
employed by Respondent at its clinics located at 435 S.
Crystal Street, 305 W. Porphyry Street, and 1300 W.
Park Street in Butte, Montana; excluding all other em-
ployees, guards and supervisors as defined by the Act.
SCL HEALTH, ST. JAMES MEDICAL
GROUP, ROCKY MOUNTAIN CLINIC
The Board's decision can be found
at https://www.nlrb.gov/case/19-CA-242468 or by using the
QR code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Rela-
tions Board, 1015 Half Street, S.E., Washington, D.C. 20570,
or by calling (202) 273-1940.