Hall Brooke Hospital

National Labor Relations Board - Board Decisions

Jul 10, 1980

250 N.L.R.B. 505 (N.L.R.B. 1980)

HALI.-BROOKE HOSPITAt
Hall-Brooke Hospital, A Division of Hall-Brooke
Foundation, Inc. and Connecticut Health Care
Associates. Case 39-CA-38
July 10, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENEL LO
Upon a charge filed on December 7, 1979, by
Connecticut Health Care Associates, herein called
the Union, and duly served on Hall-Brooke Hospi-
tal, a Division of Hall-Brooke Foundation, Inc.,
herein called Respondent, the General Counsel of
the National Labor Relations Board, by the Offi-
cer-In-Charge for Subregion 39, issued a complaint
on January 21, 1980, against Respondent, 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
and notice of hearing before an administrative law
judge were duly served on the parties to this pro-
ceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on August 24,
1979, following a Board election in Case 2-RC-
18210, the Union was duly certified as the exclu-
sive collective-bargaining representative of Re-
spondent's employees in the unit found appropri-
ate;' and that, commencing on or about November
13, 1979, and at all times thereafter, Respondent
has refused, and continues to date to refuse, to bar-
gain collectively with the Union as the exclusive
bargaining representative, although the Union has
requested and is requesting it to do so. On March
3, 1980, Respondent filed its answer to the com-
plaint admitting in part, and denying in part, the al-
legations in the complaint.
On April 11, 1980, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment with exhibits attached. Subse-
quently, on April 18, 1980, the Board issued an
order transferring the proceeding to the Board and
a Notice To Show Cause why the General Coun-
sel's Motion for Summary Judgment should not be
granted. Respondent thereafter filed, among other
I Official notice is taken of the record in the representation proceed-
ing., Case 2-RC-18210. 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 Electrorystemr, Inc., 166 NLRB 938 (1967), enfd. 388 F2d 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 FSupp 573
(DC.Va 1967) Follettrr Corp. 164 NLRB 378 (1967), enfd 347 F2d 91
(7th Cir 1968). Sec 9(d) of the NLRA. as amended
250 NLRB No. 83
things, a brief in opposition to General Counsel's
Motion for Summary Judgment.
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 its brief in op-
position to General Counsel's Motion for Summary
Judgment, Respondent contends that the Union
was improperly certified because the Union distrib-
uted campaign literature to which it attached, with-
out explanation, an exact copy of a portion of the
National Labor Relations Board notice of election,
thereby creating the impression that the Board en-
dorsed the Union and thus deprived the employees
of a free and uncoerced choice of a collective-bar-
gaining representative. The General Counsel argues
that all material issues have been previously decid-
ed and that there are no litigable issues of fact re-
quiring a hearing. We agree with the General
Counsel.
A review of the record herein, including the
record in Case 2-RC-18210, reveals that an elec-
tion conducted pursuant to a Stipulation for Certifi-
cation Upon Consent Election on March 8, 1979,
resulted in a vote of 27 for, and 18 against, the
Union. Respondent filed timely objections to con-
duct affecting the results of the election, alleging,
inter alia, in its Objection 2 the contention set forth
supra. On May 8, 1979, the Acting Regional Direc-
tor for Region 2 issued a report on the objections
and recommendations, recommending that all of
Respondent's objections be overruled, and that the
Union be certified. Thereafter, Respondent filed ex-
ceptions to the Acting Regional Director's report.
On August 29, 1979, the Board issued a Decision
and Certification of Representative (244 NLRB
No. 91), in which it adopted the Acting Regional
Director's findings and recommendations and certi-
fied the Union as exclusive bargaining representa-
tive of the employees in the unit stipulated to be
appropriate.
By letter dated November 13, 1979, in response
to a request for bargaining by the Union, Respond-
ent informed the Union that it had a good-faith
doubt concerning the Union's representation of its
employees based on the Board's decision in the un-
derlying representation case and refused to engage
in collective bargaining. It thus appears that Re-
spondent is attempting in this proceeding to reliti-
gate issues fully litigated and finally determined in
the representation proceeding.
5()5
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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.2
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. 3
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:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is a nonprofit Connecticut corpora-
tion engaged at its Westport, Connecticut, facility
as a health care institution in the operation of a
psychiatric hospital providing direct patient care
on an in-patient and out-patient basis. During the
last calendar or fiscal year, a representative period,
the Respondent received gross revenues in excess
of $250,000 from its operations and purchased and
received goods and materials valued in excess of
$50,000 from enterprises located within the State of
Connecticut, each of which enterprises received
those goods and materials from points located di-
rectly outside the State of Connecticut.
We find, on the basis of the foregoing, that Re-
spondent 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.
11. THE LABOR ORGANIZATION INVOLVED
Connecticut Health Care Associates is a labor
organization within the meaning of Section 2(5) of
the Act.
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).
3 Respondent's motion for oral argument is hereby denied as the
record and the briefs adequately present the issues and positions of the
parties Similarly, since Respondent presents no matters not previously
considered in the underlying representation case, and as we see no com-
pelling reasons fi)r a full Board disposition of the issues under considera-
tion. Respondent's motion for consideration by the full Board also is
hereby denied. See En/erpri(, Industrial Piping Company, 118 NI RB I
(1957)
111. 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 mental
health workers, activity workers, cooks, food
service workers, dietary aides, general mainte-
nance workers, grounds men, carpenters,
painters, and housekeepers employed by the
Respondent at its facility at 47 Long Lots
Road, Westport, Connecticut, excluding
guards and supervisors as defined in the Act
and all other employees.
2. The certification
On March 8, 1979, a majority of the employees
of Respondent in said unit, in a secret-ballot elec-
tion conducted under the supervision of the Re-
gional Director for Region 2, designated the Union
as their representative for the purpose of collective
bargaining with Respondent. The Union was certi-
fied as the collective-bargaining representative of
the employees in said unit on August 24, 1979, and
the Union continues to be such exclusive repre-
sentative within the meaning of Section 9(a) of the
Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing in October 1979, and at all times
thereafter, the Union has requested Respondent to
bargain collectively with it as the exclusive collec-
tive-bargaining representative of all the employees
in the above-described unit. Commencing on or
about November 13, 1979, and continuing at all
times thereafter to date, Respondent has refused,
and continues 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
November 13, 1979, and at all times thereafter, re-
fused to bargain collectively with the Union as the
exclusive representative of the employees in the ap-
propriate unit, and that, by such refusal, Respond-
ent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) and
(1) of the Act.
506
HALL-BROOKE HOSPITAL
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 1, 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.
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.,
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
1. Hall-Brooke Hospital, A Division of Hall-
Brooke Foundation, Inc., is an employer engaged
in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Connecticut Health Care Associates is a labor
organization within the meaning of Section 2(5) of
the Act.
3. All full-time and regular part-time mental
health workers, activity workers, cooks, food serv-
ice workers, dietary aides, general maintenance
workers, grounds men, carpenters, painters, and
housekeepers employed by Respondent at its facili-
ty at 47 Long Lots Road, Westport, Connecticut,
excluding guards and supervisors as defined in the
Act and all other employees, constitute a unit ap-
propriate for the purpose of collective bargaiing
within the meaning of Section 9(b) of the Act.
4. Since August 24, 1979, 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 November 13, 1979,
and at all times thereafter, to bargain collectively
with the above-named labor organization as the ex-
clusive bargaining representative of all the employ-
ees of Respondent in the appropriate unit, Re-
spondent has engaged 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, 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)(l) of the Act.
7. 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,
Hall-Brooke Hospital, a Division of Hall-Brooke
Foundation, Inc., Westport, Connecticut, its offi-
cers, 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 Connecticut Health
Care Associates as the exclusive bargaining repre-
sentative of its employees in the following appro-
priate unit:
All full-time and regular part-time mental
health workers, activity workers, cooks, food
service workers, dietary aides, general mainte-
nance workers, grounds men, carpenters,
painters, and housekeepers employed by the
Respondent at its facility at 47 Long Lots
Road, Westport, Connecticut, excluding
guards and supervisors as defined in the Act
and all other employees.
(b) 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:
507
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(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) Post at its Westport, Connecticut, facility
copies of the attached notice marked "Appendix." 4
Copies of said notice, on forms provided by the Of-
ficer-In-Charge for Subregion 39, 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.
(c) Notify the Office-In-Charge for Subregion
39, in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
CHAIRMAN FANNING, dissenting:
For the reasons previously expressed in my dis-
senting opinion in the underlying representation
proceeding, Hall-Brooke Hospital, A Division of
Hall-Brooke Foundation, Inc., 244 NLRB No. 91
(1979), and for the reasons set forth in my dissent-
ing opinion in Alyeska Pipeline Service Company,
236 NLRB 1082 (1978), I would deny the General
Counsel's Motion for Summary Judgment here.
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 Pursu-
ant 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 Connecticut Health Care Associates 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 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 mental
health workers, activity workers, cooks,
food service workers, dietary aides, general
maintenance workers, grounds men, carpen-
ters, painters, and housekeepers employed
by the Employer at its facility at 47 Long
Lots Road, Westport, Connecticut, exclud-
ing guards and supervisors as defined in the
Act and all other employees.
HALL-BROOKE HOSPITAL, A DIVI-
SION OF HALL-BROOKE FOUNDATION,
INC.
508