Kaiser Foundation Hospitals, 468 (1977)
Kaiser Foundation Hospitals;The Permanente Medical Group; and Kaiser Foundation Health Plan and Alsam G. Small DECISION
STATEMENT OF THE CASE
Hospital and Institutional Workers Union, Local 250 and Alsam G. Small. Cases 20-CA-10516 and 20CB-3483
March 1, 1977 DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND WALTHER
On November 30, 1976, Administrative Law Judge William J. Pannier III issued the attached Decision in this proceeding. Thereafter, Respondent Union filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.
The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order.
Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent Union, Hospital and Institutional Workers Union, Local 250, its officers, agents, and representatives, shall take the action set forth in the said recommended Order.
i The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91
NLRB 544 (1950), enfd. 188 F 2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings However, we hereby correct the following factual errors which do not , in our opinion, affect the correctness of the Administrative Law Judge's conclusion that Respondent Union has failed to rebut the General Counsel's showing that before the 1974-75 changes the parties' contracts excluded therapists who were not members of Respondent Union from the bargaining unit for which the Union was recognized : Contrary to an implication of the Administrative Law Judge regarding mileage benefits enjoyed by therapists, the record reveals that some other employees receive such benefits when they use their own automobiles to travel for the Respondent Employers. Also, with regard to the provision of the Respondents' agreement concerning notification of the Respondent Union when a job vacancy occurs within the bargaining unit, there is no evidence, as the Administrative Law Judge assumes, that the Union maintains a list of available employees in classifications other than therapist.
228 NLRB No. 57
WILLIAM J. PANNIER III, Administrative Law Judge: This matter was heard by me in San Francisco, California, on May 6 and June 1 through 4 and June 11, 1976. On January 30, 1976, the Regional Director for Region 20 of the National Labor Relations Board issued an order consolidating cases, consolidated complaint, and notice of hearing based upon unfair labor practice charges filed in Case 20CB-3483 on May 1, 1975, and served on May 5, 1975, alleging violations of Section 8(b)(1)(A) and (2) of the National Labor Relations Act, as amended, 29 U.S.C. Sec.
151, et seq., herein called the Act, and filed in Case 20-CA10516 on August 12, 1975, and served on August 13, 1975, alleging violations of Section 8(a)(1), (2), and (3) of the Act.' All parties have been afforded full opportunity to appear, to introduce evidence, to examine and cross-examine witnesses, and to file briefs. Based upon the entire record, upon the briefs filed on behalf of each of the parties, and upon my observation of the demeanor of the witnesses, I make the following:
FINDINGS OF FACT
JURISDICTION At all times material, Kaiser Foundation Hospitals, The Permanente Medical Group, and Kaiser Foundation Health Plan, herein called Respondent Employers, have been corporations and are joint employers engaged in providing prepaid health care services through the operation of acute care hospitals, outpatient clinics, pharmacies, optical laboratories, and other facilities, including medical centers located at Sacramento, Hayward, Oakland, Redwood City, Richmond, San Francisco, San Rafael, Santa Clara, South San Francisco, Vallejo, and Walnut Creek,
California. During the past calendar year, in the course and conduct of these operations, Respondent Employers derived gross revenues in excess of $250,000 and, moreover, purchased and received materials and supplies valued in excess of $50,000 which were shipped directly to Respon1 The charge in Case 20-CA-10516 also alleged a violation of Sec. 8(a)(5) of the Act, but no violation of that section of the Act has been alleged in the complaint nor urged by the General Counsel.
KAISER FOUNDATION HOSPITALS, ET AL. 469 dent Employers' medical centers from suppliers located outside the State of California.
Therefore, I find that Respondent Employers are engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act.
THE LABOR ORGANIZATION INVOLVED At all times material, Hospital and Institutional Workers Union, Local 250, herein called Respondent Union, has been a labor organization within the meaning of Section 2(5) of the Act.
ISSUES 1. Whether all employees in the classifications physical therapist, speech therapist, and occupational therapist have been historically included in the bargaining unit for which Respondent Employers have recognized Respondent Union as the bargaining representative or, alternatively, whether only those therapists who were members of Respondent Union have been historically included in that unit, with the result that Respondents violated the Act in December 1974 by reaching agreement to include all therapists in the unit and by thereafter executing a contract which imposed union-security requirements on all therapists in the three classifications.
Whether employees classified as physical therapist, speech therapist, and occupational therapist are professional employees within the meaning of Section 2(12) of the Act and, if so, and if the effect of the December 1974 agreement was to add therapists who had not been represented by Respondent Union to the bargaining unit, whether Respondents independently violated the Act by not affording those therapists an opportunity to determine whether they desired to be included in a bargaining unit embracing nonprofessional employees.
Whether a finding of a violation, otherwise warranted, is barred against Respondent Employers under Section 10(b) of the Act.
THE ALLEGED UNFAIR LABOR PRACTICES A. Whether Therapists Were Added to the Unit in December 1974
Contentions of the parties Respondents have maintained a collective-bargaining relationship for over 20 years. In December 1974, they reached agreement on the terms of their latest contract, paragraph 4 of which provides that all employees covered by the agreement must become and remain members of Respondent Union within 31 days after execution of the agreement or the date of hire, depending, essentially, upon whether the employee was employed by Respondent Employers before or after execution of the agreement. In addition, paragraph 6 of that agreement states:
2 In addition to the aforementioned three classifications , the physiotherapy or therapy department has included, over the years, employees classified in several other classifications such as therapy aides, therapy technicians,
Effective ninety (90) days after the ratification date of this Agreement, employees in the classifications of Physical Therapist, Speech Therapist and Occupational Therapist must either satisfy the Union membership requirements in accordance with paragraph 4 above or in lieu of becoming and remaining a Union member pay to the Union a monthly fee equivalent to the established monthly dues of the Union.
At the time this agreement was reached, Respondent Employers employed 65 therapists in the three classifications at the facilities covered by the agreement. The General Counsel called 39 of these therapists, each of whom testified that he or she had never joined Respondent Union, had never designated or selected Respondent Union as his or her representative, and had never desired representation by Respondent Union.
Respondents, however, contend that, notwithstanding the understanding of the individuals who were employed in the three classifications in December 1974, therapists have always been part of the bargaining unit since 1953 and have been covered by the successive collective-bargaining agreements negotiated between the parties since that year. Thus, contend Respondents, the only change made by the December 1974 agreement was to extend to the therapists union-security obligations from which they had been exempted under prior agreements, with their coverage under the agreements remaining the same. In opposition, the General Counsel asserts that Respondents' agreements, prior to that of December 1974, were applicable to the three therapist classifications only to the extent that individual therapists became members of Respondent Union. Thus, urges the General Counsel, it was not until the modification of December 1974 that all therapists became subject to representation by Respondent Union and to coverage under its agreement with Respondent Employers. Consequently, under the General Counsel's theory, the benefits which nonmember therapists enjoyed prior to the most recent agreement were not the product of representation by Respondent Union, but rather arose from Respondent Employers' decision to extend the same benefits to them as had been negotiated for member therapists by Respondent Union; it was 'a gratuitous undertaking rather than one of contractual...
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