276 N.L.R.B. 826 (N.L.R.B. 1986)

Watonwan Memorial Hospital, Inc.

National Labor Relations Board - Board DecisionsSep 27, 1986

276 N.L.R.B. 826 (N.L.R.B. 1986)

826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Watonwan Memorial Hospital , Inc. and Minnesota Licensed Practical Nurses Association. Case 18-CA-7869 27 September 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND -MEMBERS DENNIS AND BABSON Upon a charge filed on 16 September 1982 by Minnesota Licensed Practical Nurses Association (the Union jointly with Technical Employees Asso- ciation of Minnesota) and properly served on Wa- tonwan Memorial Hospital, Inc. (the Respondent), the General Counsel of the National Labor Rela- tions Board, by the Acting Regional Director for Region 18, issued a complaint on 8 October 1982 against the Respondent, alleging that the Respond- ent 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. Copies of the -charge and complaint and notice of hearing before an administrative law judge were properly served on the- parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that on 16 December 1981 the Union -was certified as exclusive bargain- ing representative of the Respondent's technical employees; l that on 30 August 1982 the Board or- dered the Respondent, on request, to bargain with the Union as exclusive representative of the certi- fied unit;2 and that about 1 September 1982 the Re- spondent made certain changes in, the wages and conditions of employment of unit employees with- out giving notice to the Union and affording it an opportunity to bargain about the changes and their effects. - On 22 November 1982 the General Counsel filed directly with the Board a Motion for Summary Judgment. On 30 November 1982 the Board issued an order transferring the proceeding -to the Board and a Notice to Show Cause why, the General Counsel's Motion for Summary Judgment should not be granted. The Respondent filed a response to the Notice to Show Cause, opposing the General Counsel's motion. i In Cases I8-RM-1123 and 18-RC-13100 Minnesota Licensed Practi- cal Nurses Association and Technical Employees Association of Minne- sota were certified, jointly, as the exclusive representative of a unit of all full-time and regular part- time technical employees at the Respondent's St James, Minnesota health facility 2 In Case 18-CA-7650 the Board found that the Respondent had vio- lated Sec 8 (a)(5) and (1) of the Act by refusing to recognize and bargain with the Union Watonwan Memorial Hospital, 263 NLRB No 99 (Aug 30, 1982) (not reported in Board volumes). The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. - Ruling on Motion for Summary Judgment - In its answer to- the complaint, and in' its re- sponse to the Notice to Show Cause, the Respond- ent admits it made the unilateral changes' alleged, but contends that its conduct did not constitute an 'unfair labor ' practice because the Union was im- properly certified to represent an inappropriate unit, and consequently it had no legal obligation to bargain with the Union.3 The Respondent thus raises the same unit question it raised in the repre- sentation proceeding and in the earlier unfair labor practice proceeding, arguing that a separate unit of technical employees at its health care facility is in- appropriate and only a unit covering all employees is appropriate. The Board -has previously decided the unit ques- tion4 and the Union's status as exclusive bargaining representative, and the Eighth Circuit Court of Ap- peals has enforced* the Board's bargaining order.5 It appears there are no special circumstances that require the Board to reexamine its decision and no factual issues that need to be resolved. According- ly, we grant the General Counsel's- Motion- for Summary Judgment. - On the entire record, the Board makes the fol- lowing FINDINGS OF FACT - 1. THE BUSINESS OF THE RESPONDENT Watonwan Memorial Hospital, Inc., a Minnesota corporation with an office and place of business in St. James, Minnesota, has been engaged in the op- eration of an acute care hospital. During the fiscal year ending 31 August 1981 the Respondent, in the course and conduct of its business operations, de- rived gross revenues in excess of $500,000. During the same period it purchased and received at its fa- cility goods and materials valued in excess of $50,000 directly from points outside the State of Minnesota. We find, on the basis of the foregoing, that the Respondent is, and has been at all times material 9 In its answer to the complaint the Respondent denies the status of the Union as a labor organization although it admitted the Union 's status in its answer to the complaint in Case 18-CA-7650 In the underlying repre- sentation proceeding and in the earlier unfair labor practice proceeding the Board found that Minnesota Licensed Practical Nurses Association and Technical Employees Association of Minnesota are labor organiza- tions within the meaning of Sec. 2(5) of the Act 4 To the extent that the Respondent defends its unilateral conduct by contesting the validity of the Union's certification, it raises an issue not properly litigable in an unfair labor practice proceeding .5 Watonwan Memorial Hospital Y. NLRB, 711 F 2d 848 (8th Cir. 1983) 276 NLRB No. 90 WATONWAN HOSPITAL 827 herein, _ an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. We also find that the Re- spondent is a health care institution within the meaning of Section 2(14) of the Act. - - II. THE LABOR ORGANIZATIONS INVOLVED Minnesota Licensed Practical Nurses Association and Technical Employees Association of Minneso- ta are labor organizations within the meaning of Section 2(5) of the Act. III. ALLEGED UNFAIR LABOR PRACTICES Notwithstanding the Union's certification as the exclusive bargaining representative of its technical employees, about 1 September 1982 the Respond- ent engaged in the following conduct with respect to employees in the appropriate unit without prior notice to the Union and without having afforded the Union an opportunity to negotiate and bargain as the exclusive representative with respect -to such conduct and the effects of such conduct: . (a) Changed the wage rates of some unit employ- ees and changed the method of computing their en- titlement to wage increases. (b) Changed the method of computing entitle- ment to vacations for some unit employees. . (c) Changed the method of computing, entitle- ment to sick leave for some unit employees. (d) Changed the amount of sick leave that could be accumulated by some unit employees. (e) Changed the amount of the shift differential it paid some unit employees. (f) Changed the hourly oncall rate for some unit employees. - (g) Substituted a floating holiday for the birthday holiday it had previously granted some unit em- ployees. (h) . Changed the hourly wage rates for working during a holiday and for working on the 3 to 11 p.m. shift on Christmas Eve and New Year's Eve of some unit employees. (i) Instituted a dental plan for some unit employ- ees. (j) Extended its hospital health -insurance plan to some unit employees. We find that by engaging in the conduct de- scribed above, the Respondent has interfered with, restrained, and coerced employees in the exercise of the rights guaranteed them by Section 7 of the ,.Act, and has thereby engaged in unfair labor prac- tices within the meaning of Section 8(a)(1) of the Act. We also -find that by engaging in the conduct described above the Respondent has failed and re- fused to bargain collectively and in good faith with the, exclusive bargaining representative of its em- ployees, and has thereby engaged in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act. IV. THE EFFECT, OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in sec- tion III, above, occurring in connection with its operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, 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 the Respondent has engaged - in unfair labor practices within the meaning of Sec- tion 8(a)(5) and (1) of the Act, we shall order it to cease and desist and to take certain affirmative action to effectuate the policies of the Act. Having found that the Respondent has engaged in unlawful unilateral conduct, we shall order it to bargain, on request, with the Union. We shall fur- ther require it to make whole employees, with in- terest,6.for losses, if any, that they may have suf- fered by reason of the unilateral changes, and to re- instate the wages, terms, and conditions of employ- ment that were unlawfully changed provided the Union requests it to do so.7 The Board, on the. basis of the foregoing facts and the entire record, makes the following CONCLUSIONS OF LAW 1. Watonwan Memorial Hospital, Inc. is an em- ployer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Minnesota Licensed Practical Nurses Associa- tion. and Technical Employees Association of Min- nesota are labor organizations within the meaning of Section 2(5) of the Act. 3. The following employees of the Respondent constitute a unit appropriate for the purposes of collective bargaining within the' meaning of Section 9(b) of the Act: _ : ' . - All full-time and regular part-time technical employees employed at its St. James, Minneso- ta facility, including licensed practical nurses, surgical technicians, and x-ray and laboratory 8 See Ogle Protection Service, 183 NLRB 682 (1970) 7 See Taft Broadcasting Co, 264 NLRB 185 (1982), Bellingham Frozen Foods, 237 NLRB 1450 (1978) This order should not be construed as re- quiring the cancellation of any wage increases or benefits without a re- quest from the Union for such cancellation -828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD technicians; excluding registered nurses, nurses' aides, office clerical employees, medi- cal records employees; dietary employees, laundry employees, maintenance employees, housekeeping employees, guards and supervi- sors as defined in the Act. 4. Since 16 December 1981 the above-named labor organizations, jointly, have been and now are the certified and exclusive representative of all em- ployees in the appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) 'of -the Act. 5. By making changes concerning the wages, va- cations, sick leave, holidays, and health benefits of unit employees, as set out in section III above, without giving the Union notice and opportunity to bargain about the changes and their effects, the Re- spondent has violated Section 8(a)(1) and (5) of the Act. - 6. The aforesaid unfair labor- practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER The National Labor Relations Board orders that the Respondent, Watonwan Memorial Hospital, Inc., St. James, Minnesota, its officers, agents, suc- cessors, 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 Minnesota Li- censed Practical Nurses Association and Technical Employees Association of Minnesota, jointly, as the exclusive bargaining representative of its- em- -ployees in the-following appropriate unit: All full-time and regular part-time technical employees employed at -the Respondent's St. James, Minnesota facility, including -licensed practical nurses, surgical technicians,'and x-ray and laboratory technicians; excluding- regis- tered nurses, nurses' aides, office clerical 'em- ployees, medical records employees, dietary employees, laundry employees , maintenance employees, , housekeeping employees, guards and supervisors as defined in the Act. (b) Making changes concerning the wages, vaca- tions, sick leave, holidays,- and health benefits of unit employees without giving the bargaining rep- resentative notice and opportunity to bargain about the changes and their effects. (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 above-named labor organizations, jointly, as the exclusive bar- gaining representative of all employees in the ap- propriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employ- ment, and, if an understanding is reached, embody the' understanding in a signed agreement. (b) Make whole unit employees, with interest, for the-losses, if any, they may have suffered by reason of the changes it made concerning their wages, vacations, sick leave, holidays, and health benefits without giving the bargaining representa- tive notice and opportunity to bargain about the changes -and their effects. (c) If the bargaining representative requests, rein- state the wages, terms, and conditions of employ- ment that it changed without giving the bargaining representative notice and opportunity to bargain about the changes and their effects' (d) Post at its facility at St. James, Minnesota, copies of the attached notice marked "Appendix."8 Copies of the notice, on forms provided by the Re- gional Director for Region 18, 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 to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify. the Regional Director in -writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 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 Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al 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 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 Minnesota Li- WATONWAN HOSPITAL censed Practical Nurses Association and Technical Employees Association of Minnesota, jointly, as the exclusive representative of the employees in the following appropriate unit: All full-time and regular part-time technical employees employed at our St. James, Minne- sota facility, including licensed practical nurses, surgical technicians, and x-ray and lab- oratory technicians; excluding registered nurses, nurses' aides, office clerical employees, medical records employees, dietary employees, laundry employees, maintenance employees, housekeeping employees, guards and supervi- sors as defined in the Act. WE WILL NOT make changes concerning the wages, vacations, sick leave, holidays, and health benefits of unit employees without giving the bar- gaining representative notice and opportunity to bargain about the changes and their effects. 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. 829 WE WILL, on request, bargain with the above- named labor organizations, jointly, as the exclusive representative of all employees in the bargaining unit described above with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody the understanding in a signed agreement. WE WILL make whole unit employees, with in- terest, for the losses, if any, they may have suffered by reason of the changes we made concerning their wages, vacations, sick leave, holidays, and health benefits without giving the bargaining representa- tive notice and opportunity to bargain about the changes and their effects. WE WILL, if the bargaining representative re- quests us to do so, reinstate the wages, terms, and conditions of employment that we changed without giving the bargaining representative notice and op- portunity to bargain about the changes and their ef- fects. WATONWAN MEMORIAL HOSPITAL, INC.