Walker County Medical Center, Inc.

National Labor Relations Board - Board Decisions

Mar 12, 1982

260 N.L.R.B. 862 (N.L.R.B. 1982)

I)1 CISIO)NS ()1 NAII()NAI. I AL()R RIA I IO()NS B()ARI)
Walker County Medical Center, Inc. and Alabama
State Nurses' Association. Case 10-CA- 17150
March 12, 1982
DECISION AND ORDER
BY MIhHBIlRKS FANNING, JENKINS, ANI)
ZIMM FRMAN
Upon a charge filed on July 6, 1981, by Alabama
State Nurses' Association, herein called the Union,
and duly served Walker County Medical Center,
Inc., herein called Respondent, the General Coun-
sel of the National Labor Relations Board, by the
Acting Regional Director for Region 10, issued a
complaint on July 22, 1981, against Respondent, al-
leging that Respondent had engaged in and was en-
gaging 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 Rela-
tions Act, as amended. Copies of the charge and
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
complaint alleges in substance that on June 10,
1981, following a Board election in Case 10-RC-
12359, the Union was duly certified as the exclu-
sive collective-bargaining representative of Re-
spondent's employees in the unit found appropri-
ate; t and that, commencing on or about June 30,
1981, and at all times thereafter, Respondent has
refused, and continues to date to refuse, to bargain
collectively with the Union as the exclusive bar-
gaining representative, although the Union has re-
quested and is requesting it to do so. On July 30,
1981, Respondent filed its answer to the complaint
admitting in part, and denying in part, the allega-
tions in the complaint.
On November 2, 1981, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on November
4, 1981, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for Sum-
mary Judgment should not be granted. Respondent
thereafter filed a response to the Notice To Show
Cause.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
'Official lotlice is taken lIf'h record in he reprcsenitalion pr oceding.
Case I1( RC 12359. as the term "recrrrd" is defined in Sees 102 68 arid
102.6 9(1g) of he Board's Rules and Regnlalironls, Series 8, as amended See
L'[ ElIirirnolrrtrcr . 1rt., 6h6 NL.RB 938 (1967), entd. 388 F 2d 683 (4th
Cir 1968): Golden .4Rge Bevruge' ('C., 167 NLRB 151 (1967). cnrd 415
F 2d 26 (51t Cir 196t9): lntvrtrpe Co. I' Penlllo. 269 F Supp 573
(DC Va 1967); lhllrrt Corp.. 164 Nl.RB 378 (19e,7). ernfd 397 :2d 91
(7th Cir 196h8) Sec A9d) of the NL.RA, as amended
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 admits its
refusal to bargain, but denies that it thereby violat-
ed Section 8(a)(5) and (1) of the Act, arguing that
the election held on June 2, 1981, should have been
set aside because the Regional Director's Decision
and Direction of Election conflicted with decisions
of the Board and various courts of appeals. Re-
spondent also asserts that the instant proceeding
violates the Administrative Procedures Act and
that a hearing should be held before the full Board
to consider this case. Finally, Respondent contends
that the Regional Director and the Board erred in
failing to review the entire record during the previ-
ous proceedings involving the matters in dispute.
A review of the record herein, including the
record in Case 10-RC-12359, shows that on May
4, 1981, the Regional Director issued a Decision
and Direction of Election in which he found that
the Alabama State Nurses' Association (herein
called the Union) was a labor orgnization within
the meaning of Section 2(5) of the Act and that all
registered nurses, including assistant unit coordina-
tors, charge nurses, and team leaders employed by
Respondent at its hospital located in Jasper, Ala-
bama, but excluding all other employees, unit coor-
dinators, the director of nursing, assistant director
of nursing, house supervisors, guards and supervi-
sors as defined in the Act, constitute an appropriate
unit. In so doing, he included in the unit the assist-
ant unit coordinators and charge nurses whose au-
thority he found was "an exercise of judgment inci-
dental to the treatment of patients and not an exer-
cise of supervisory authority." However, he ex-
cluded from the unit the unit coordinators who he
found possessed the authority to discharge and dis-
cipline employees and to assign work and breaks.
With regard to the Union, the Regional Director
found that, while supervisors were admitted to
membership and served on the board of directors,
"no supervisors or employees of the Employer are
serving on the Board of Directors and it is uncon-
troverted that should the Petitioner be certified,
goals and negotiations involving the unit herein
would be determined and pursued solely by mem-
bers of the unit." He further concluded that "there
is no clear and present danger of conflict of interest
between management's objectives and employee
representational concerns," because it was unrefut-
260 NLRB No. 104
Sh62
NVAIKER (CONTY N51I)ICAI CI N I IR. IN(
ed that supervisors would not be permitted to par-
ticipate in the internal affairs of the local.
On May 18, 1981, Respondent filed a request for
review contending that the record supported its as-
sertion that assistant unit coordinators and charge
nurses are supervisors and therefore should be ex-
cluded from the unit. Respondent further alleges
that the Regional Director erred in not finding that
the presence of supervisors on the Union's board of
directors and the admittance of supervisors into
union membership (including supervisors at Re-
spondent) presented a conflict of interest which
prevented the Union from representing fairly the
unit employees. On June 1, 1981, the Board denied
Respondent's request for review. The representa-
tion election was held on June 2, 1981, and a ma-
jority of the unit employees designated the Union
as their representative for the purpose of collective
bargaining. The Union was certified by the Region-
al Director on June 10, 1981.
By letter dated June 18, 1981, the Union request-
ed a meeting with Respondent to bargain with re-
spect to rates of pay, wages, hours of employment,
or other conditions of employment. By letter dated
June 30, 1981, Respondent stated that it would
meet with the Union for the purposes of collective
bargaining only after the appropriate U.S. court of
appeals upheld the Board's certification of the
Union. In its answer to the complaint, Respondent
admits that it refused and is continuing to refuse to
recognize and bargain collectively with the Union
because the certification is invalid. It thus appears
Respondent is attempting to raise issues in this pro-
ceeding that were raised, considered, and resolved
in the underlying representation case.
Further, we find no merit to Respondent's con-
tention that the Board erred in failing to review the
entire record in determining the issues in Case 10-
RC-12359. The Regional Director's Decision and
Direction of Election was a final decision on the
record, subject to discretionary review by the
Board, as authorized by Section 3(b) of the Act.
Respondent challenged this decision by timely
filing a request for review with the Board. Under
Section 102.67(d) of the Board's Rules and Regula-
tions, "any request for review must be a self-con-
tained document enabling the Board to rule on the
basis of its contents without the necessity of re-
course to the record; however, the Board may, in
its discretion, examine the record in evaluating the
request." Where, as here, it appears from the Re-
gional Director's decision and the request for
review that no substantial and material issues of
fact exist, we find that it is within the Board's dis-
cretion to deny the request solely on the basis of
those documents. This finding is supported by the
Board's policy of expeditiously resolving questions
concerning representation.
Respondent's reliance on .XL.R.B. v. Decibel
Products. Inc., 657 F.2d 727 (5th Cir. 1981), is mis-
placed with respect to the Board's review obliga-
tions in a representation proceeding where a re-
gional director makes a final decision on the
record. Decihel Products dealt with the type of rep-
resentation proceeding where the Board itself
makes the final decision on the record.
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.'
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 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 an Alabama corporation with an
office and place of business at Jasper, Alabama,
where it is engaged in the operation of a private
medical center. During the past calendar year, a
representative period, it received gross revenues in
excess of $250,000 and received at its Jasper, Ala-
bama, institution supplies in excess of $5,000 direct-
ly from suppliers located outside the State of Ala-
bama.
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.
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Rules ,id ReguhTlm,,cti thc Jolrd. e ts 1(2 11) am 1 1d 12 thqtct
DI-)CISI()NS ()I' NAIO()NAL I.AO()R RF.I.ATI()NS H()ARI)
II. ITHE LI ABOR ORGANIZATION INVOI.Vii)
Alabama State Nurses' Association is a labor or-
ganization within the meaning of Section 2(5) of
the Act.
Ill. THI- UNFAIR l.ABOR 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 registered nurses, including assistant unit
coordinators, charge nurses and team leaders
employed by Respondent at its hospital locat-
ed in Jasper, Alabama, but excluding all other
employees, unit coordinators, the director of
nursing, assistant director of nursing, house su-
pervisors, guards and supervisors as defined in
the Act.
2. The certification
On June 2, 1981, a majority of the employees of
Respondent in said unit, in a secret-ballot election
conducted under the supervision of the Regional
Director for Region 10, designated the Union as
their representative for the purpose of collective
bargaining with Respondent.
The Union was certified as the collective-bar-
gaining representative of the employees in said unit
on June 10, 1981, and the Union continues to be
such exclusive representative within the meaning of
Section 9(a) of the Act.
B. The Request To Bargain and Respondents
Refusal
Commencing on or about June 18, 1981, 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 June 30, 1981, and continuing
at all times thereafter to date, Respondent has re-
fused, 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.
Accordingly, we find that Respondent has, since
June 30, 1981, 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. THi: EFFECTI O1 THE UNFAIR l.ABOR
PRACTICES UPON COMMEIRCE
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
commerce.
V. THE RFMIHMDY
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. Walker County Medical Center, Inc., is an
employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. Alabama State Nurses' Association is a labor
organization within the meaning of Section 2(5) of
the Act.
3. All registered nurses, including assistant unit
coordinators, charge nurses and team leaders em-
ployed by Respondent at its hospital located in
Jasper, Alabama, but excluding all other employ-
ees, unit coordinators, the director of nursing, as-
sistant director of nursing, house supervisors,
guards and supervisors as defined in the Act, con-
stitute a unit appropriate for the purposes of collec-
864
WALKER COUNTY MEDICAI. CENTER, INC
tive bargaining within the meaning of Section 9(b)
of the Act.
4. Since June 10, 1981, 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 June 30, 1981, 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 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,
Walker County Medical Center, Inc., Jasper, Ala-
bama, 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 Alabama State
Nurses' Association as the exclusive bargaining
representative of its employees in the following ap-
propriate unit:
All registered nurses, including assistant unit
coordinators, charge nurses and team leaders
employed by Respondent at its hospital locat-
ed in Jasper, Alabama, but excluding all other
employees, unit coordinators, the director of
nursing, assistant director of nursing, house su-
pervisors, guards and supervisors as defined in
the Act.
(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:
(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 Jasper, Alabama, facility copies of
the attached notice marked "Appendix." 3 Copies of
said notice, on forms provided by the Regional Di-
rector for Region 10, 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. Rea-
sonable steps shall be taken by Respondent to
insure said notices are not altered, defaced, or cov-
ered by any other material.
(c) Notify the Regional Director for Region 10,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
' In the e\enl that Ihis Order is enforced by a Judgment of a United
Sltate. Court of Appeals, the iords in Ihe nolice reading "Posled by
Order of the National Labhor Relations Board" shall read "Posted Pursu-
ant to a Judgnient of the United States Court of Appeals Enforcing an
Order of the Nationail I.ahor 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 Alabama State Nurses' Association 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 WI.L , 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 registered nurses, including assistant unit
coordinators, charge nurses and team leaders
865
) CISI(ONS ()O NATI()NAL I.AB()R RLATIO()NS BOARI)
employed by the Employer at its hospital lo-
cated in Jasper, Alabama, but excluding all
other employees, unit coordinators, the di-
rector of nursing, assistant director of nurs-
ing, house supervisors, guards and supervi-
sors as defined in the Act.
WAI KER COUNTY MEDICAL CENTER,
INC.
866