362 NLRB No. 97 (N.L.R.B. 2015)

PARKVIEW COMMUNITY HOSPITAL MEDICAL CENTER

National Labor Relations Board - Board DecisionsMay 27, 2015

362 NLRB No. 97 (N.L.R.B. 2015)

362 NLRB No. 97 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. Parkview Community Hospital Medical Center and Service Employees International Union, United Healthcare Workers-West (SEIU-UHW). Case 21–CA–147256 May 27, 2015 DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS JOHNSON AND MCFERRAN This is a refusal-to-bargain case in which the Re- spondent is contesting the Union’s certification as bar- gaining representative in the underlying representation proceeding. Pursuant to a charge filed by Service Em- ployees International Union, United Healthcare Workers- West (SEIU-UHW) (the Union) on February 26, 2015, the General Counsel issued the complaint on March 20, 2015, alleging that Parkview Community Hospital Medi- cal Center (the Respondent) has violated Section 8(a)(5) and (1) of the Act by refusing the Union’s request for recognition and to bargain following the Union’s certifi- cation in Case 21–RC–121299. (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(g). Frontier Hotel, 265 NLRB 343 (1982).) The Respondent filed an answer admitting in part and deny- ing in part the allegations of the complaint, and asserting affirmative defenses. On April 7, 2015, the General Counsel filed a Motion for Summary Judgment. On April 9, 2015, 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, in which it agreed that summary judgment was appropriate here. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. 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 objections to the conduct of the election. 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.1 On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent has been a not- for-profit California corporation, with its principal offic- es and an acute care hospital located at 3865 Jackson Street, Riverside, California, and has been engaged in the business of providing healthcare services. During the 12-month period ending March 19, 2015, a representative period, the Respondent derived gross rev- enues in excess of $250,000, and purchased and received at the Riverside, California facility goods valued in ex- cess of $5000 directly from points outside the State of California. We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and a health care institution within the meaning of Section 2(14) of the Act. We find 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 Following a representation election held on March 13, 2014, the Union was certified on January 30, 2015, as the exclusive collective-bargaining representative of em- ployees in the following appropriate unit: All bio medical engineering techs II, bio medical engi- neers, C.T. techs, C.T. techs per diem, dexa scan techs, ER techs, ER techs per diem, GI lab techs, mammog- raphy techs, monitor techs, nuclear med techs, neurolo- gy techs, O/P radiology clinic CT/MRI techs, O/P radi- ology clinic radiology techs I, O/P radiology clinic ra- diology techs II, O/P radiology clinic sonographers, OB techs, pharmacy techs, phlebotomy I, phlebotomy II, cardio pulmonary (EKG techs/assistants), radiology techs, respiratory care practitioners I, respiratory care practitioners II, respiratory care practitioners III per di- em, respiratory coordinators, sonographers, sonog- raphers per diem, surgery techs, ultrasound techs, ad- ministrative secretaries, ASC unit secretaries, birth cer- tificate specialists, buyers, CNAs, CNA per diems, caf- 1 In granting the General Counsel’s motion, we pass only on the al- legations in the complaint. Therefore, we do not grant summary judg- ment with respect to the erroneous statement at par. 13 of the motion that the complaint alleges that the Respondent is failing and refusing to supply the Union with requested information in violation of Sec. 8(a)(5) and (1) of the Act. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2 eteria staff, catering staff, catering/med staff dining su- pervisors, clerical coordinators, dietary supervisors, cooks, cooks assistants (cold production), diet office staff, dietary secretaries, food service workers, gift shop cashiers, guest services, joint care coordinators, kitchen porters, lab assistants, lead baristas, lead pathology, lead respiratory practitioners, LVNs, LVNs newborn, LVN per diem leads I, nuclear med assistants, O/P ra- diology clinic X-ray clerks, OR assistants, OR schedule secretaries, OR supply/anesthesiologists LVNs, patient care attendants, perinatal/lactation educators, pharmacy clerks, rehabilitation aides, room service attendants, senior dietary clerks, social service/discharge planners, transporter/clerks, unit secretaries, coders I, coders II, coding supervisors, archivist/print shop techs H.I.M., discharge analysts, H.I.M. clerks, H.I.M. correspond- ents, H.I.M. techs, H.I.M. operation, pathologist tran- scriptionists, pathology assistants, physician representa- tives, receivers, stock expeditors, transcriptionists, tran- scription clerks, transcription supervisors, staffing co- ordinators, SPD techs, SPD techs per diem, SPD coor- dinators, and x-ray attendants employed by the Em- ployer at its facility located at 3865 Jackson Street, Riverside, California; but excluding all other employ- ees, information services employees, admitting person- nel, clinical lab scientists, nutritionists, marketing em- ployees, medical staff employees, chaplains, human re- source employees, insurance verifiers, Pyxis coordina- tors, master social workers, occupational therapists, ac- counting department employees, utilization review em- ployees, physical therapists, PBX operators, speech therapists, business office clerical employees, skilled maintenance employees, professional employees, regis- tered nurses, physicians, confidential employees, man- agers, guards, and supervisors as defined in the Act. The Union continues to be the exclusive collective- bargaining representative of the unit employees under Sec- tion 9(a) of the Act. B. Refusal to Bargain By letter dated February 2, 2015,2 the Union requested that the Respondent bargain collectively with it as the exclusive collective-bargaining representative of the unit. Since about February 2, 2015, the Respondent has failed and refused to do so. We find that this failure and refusal constitutes an un- lawful failure and refusal to recognize and bargain with the Union in violation of Section 8(a)(5) and (1) of the Act. 2 The Union’s letter to Respondent is mistakenly dated “February 2, 3015,” but there is no dispute that the correct date is in 2015. CONCLUSION OF LAW By failing and refusing since February 2, 2015, to rec- ognize and bargain with the Union as the exclusive col- lective-bargaining representative of employees in the appropriate unit, the Respondent has engaged in unfair labor practices affecting commerce 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 bargain on request with the Union and, if an understanding is reached, to embody the understanding in a signed agreement. To ensure that employees are accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of the certification as beginning the date that 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, Parkview Community Hospital Medical Center, Riverside, California, its officers, agents, succes- sors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to recognize and bargain with Service Employees International Union, United Healthcare Workers-West (SEIU-UHW) as the exclusive collective-bargaining representative of 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 exclu- sive collective-bargaining representative of the following appropriate unit on terms and conditions of employment and, if an understanding is reached, embody the under- standing in a signed agreement: All bio medical engineering techs II, bio medical engi- neers, C.T. techs, C.T. techs per diem, dexa scan techs, ER techs, ER techs per diem, GI lab techs, mammog- raphy techs, monitor techs, nuclear med techs, neurolo- gy techs, O/P radiology clinic CT/MRI techs, O/P radi- ology clinic radiology techs I, O/P radiology clinic ra- PARKVIEW COMMUNITY HOSPITAL MEDICAL CENTER 3 diology techs II, O/P radiology clinic sonographers, OB techs, pharmacy techs, phlebotomy I, phlebotomy II, cardio pulmonary (EKG techs/assistants), radiology techs, respiratory care practitioners I, respiratory care practitioners II, respiratory care practitioners III per di- em, respiratory coordinators, sonographers, sonog- raphers per diem, surgery techs, ultrasound techs, ad- ministrative secretaries, ASC unit secretaries, birth cer- tificate specialists, buyers, CNAs, CNA per diems, caf- eteria staff, catering staff, catering/med staff dining su- pervisors, clerical coordinators, dietary supervisors, cooks, cooks assistants (cold production), diet office staff, dietary secretaries, food service workers, gift shop cashiers, guest services, joint care coordinators, kitchen porters, lab assistants, lead baristas, lead pathology, lead respiratory practitioners, LVNs, LVNs newborn, LVN per diem leads I, nuclear med assistants, O/P ra- diology clinic X-ray clerks, OR assistants, OR schedule secretaries, OR supply/anesthesiologists LVNs, patient care attendants, perinatal/lactation educators, pharmacy clerks, rehabilitation aides, room service attendants, senior dietary clerks, social service/discharge planners, transporter/clerks, unit secretaries, coders I, coders II, coding supervisors, archivist/print shop techs H.I.M., discharge analysts, H.I.M. clerks, H.I.M. correspond- ents, H.I.M. techs, H.I.M. operation, pathologist tran- scriptionists, pathology assistants, physician representa- tives, receivers, stock expeditors, transcriptionists, tran- scription clerks, transcription supervisors, staffing co- ordinators, SPD techs, SPD techs per diem, SPD coor- dinators, and x-ray attendants employed by the Em- ployer at its facility located at 3865 Jackson Street, Riverside, California; but excluding all other employ- ees, information services employees, admitting person- nel, clinical lab scientists, nutritionists, marketing em- ployees, medical staff employees, chaplains, human re- source employees, insurance verifiers, Pyxis coordina- tors, master social workers, occupational therapists, ac- counting department employees, utilization review em- ployees, physical therapists, PBX operators, speech therapists, business office clerical employees, skilled maintenance employees, professional employees, regis- tered nurses, physicians, confidential employees, man- agers, guards, and supervisors as defined in the Act. (b) Within 14 days after service by the Region, post at its facility in Riverside, California, copies of the attached notice marked “Appendix.”3 Copies of the notice, on 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- forms provided by the Regional Director for Region 21, 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- 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. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current em- ployees and former employees employed by the Re- spondent at any time since February 2, 2015. (c) Within 21 days after service by the Region, file with the Regional Director for Region 21 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. May 27, 2015 ______________________________________ Mark Gaston Pearce, Chairman ______________________________________ Harry I. Johnson, III, Member ______________________________________ Lauren McFerran, 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. ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4 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 Service Employees International Union, United Healthcare Workers-West (SEIU-UHW) as the exclusive collective- bargaining representative of the 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 the following bargaining unit: All bio medical engineering techs II, bio medical engi- neers, C.T. techs, C.T. techs per diem, dexa scan techs, ER techs, ER techs per diem, GI lab techs, mammog- raphy techs, monitor techs, nuclear med techs, neurolo- gy techs, O/P radiology clinic CT/MRI techs, O/P radi- ology clinic radiology techs I, O/P radiology clinic ra- diology techs II, O/P radiology clinic sonographers, OB techs, pharmacy techs, phlebotomy I, phlebotomy II, cardio pulmonary (EKG techs/assistants), radiology techs, respiratory care practitioners I, respiratory care practitioners II, respiratory care practitioners III per di- em, respiratory coordinators, sonographers, sonog- raphers per diem, surgery techs, ultrasound techs, ad- ministrative secretaries, ASC unit secretaries, birth cer- tificate specialists, buyers, CNAs, CNA per diems, caf- eteria staff, catering staff, catering/med staff dining su- pervisors, clerical coordinators, dietary supervisors, cooks, cooks assistants (cold production), diet office staff, dietary secretaries, food service workers, gift shop cashiers, guest services, joint care coordinators, kitchen porters, lab assistants, lead baristas, lead pathology, lead respiratory practitioners, LVNs, LVNs newborn, LVN per diem leads I, nuclear med assistants, O/P ra- diology clinic X-ray clerks, OR assistants, OR schedule secretaries, OR supply/anesthesiologists LVNs, patient care attendants, perinatal/lactation educators, pharmacy clerks, rehabilitation aides, room service attendants, senior dietary clerks, social service/discharge planners, transporter/clerks, unit secretaries, coders I, coders II, coding supervisors, archivist/print shop techs H.I.M., discharge analysts, H.I.M. clerks, H.I.M. correspond- ents, H.I.M. techs, H.I.M. operation, pathologist tran- scriptionists, pathology assistants, physician representa- tives, receivers, stock expeditors, transcriptionists, tran- scription clerks, transcription supervisors, staffing co- ordinators, SPD techs, SPD techs per diem, SPD coor- dinators, and x-ray attendants employed by us at our facility located at 3865 Jackson Street, Riverside, Cali- fornia; but excluding all other employees, information services employees, admitting personnel, clinical lab scientists, nutritionists, marketing employees, medical staff employees, chaplains, human resource employees, insurance verifiers, Pyxis coordinators, master social workers, occupational therapists, accounting depart- ment employees, utilization review employees, physi- cal therapists, PBX operators, speech therapists, busi- ness office clerical employees, skilled maintenance employees, professional employees, registered nurses, physicians, confidential employees, managers, guards, and supervisors as defined in the Act. PARKVIEW COMMUNITY HOSPITAL MEDICAL CENTER The Board’s decision can be found at www.nlrb.gov/case/21-CA-147256 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273-1940.