On Application for Enforcement of an Order of the National Labor Relations Board NLRB Nos. 22-CA-9110 & 22-CA-9329.
Gibbons, Chief Judge, Hutchinson and Rosenn, Circuit Judges.
The National Labor Relations Board petitions to enforce its March 23, 1988 order issued against Wallkill Valley General Hospital, a/k/a Alexander Linn Hospital Association (the Hospital). The order requires the Hospital to cease and desist from the violations it found, and to recognize and bargain with the Hospital, Professional and Allied Employees of New Jersey (the Union) as the collective bargaining representative of the Hospital's registered nurses. The violations found by the Board include withdrawing recognition, refusing to bargain, making unilateral changes in the terms and conditions of employment, and dealing directly with employees in the bargaining unit. We will enforce the Board's order.
In July of 1977 the Union was certified by the Board as the collective bargaining representative of two units, one of which was the registered nurses, at the Alexander Linn Hospital in Sussex, New Jersey. Following the certification, Alexander Linn Hospital bargained with the Union. The parties did not reach agreement, however, until after an economic strike which lasted from February 1, 1978 through March 31, 1978. A collective bargaining agreement, effective from January 1 through December 31, 1978 ended the strike.
The Union filed with the Board two unfair labor practice charges; one for subcontracting out, in March of 1978, work which resulted in the layoff of an employee in the hospital's technical employee unit, and one for discharging, in April 1978, a Registered Nurse for allegedly engaging in unprofessional conduct. Before these unfair labor practice charges were processed by the Board, Lorraine Simons, a member of the registered nurses bargaining unit, on September 29, 1978, filed with the Board's Regional Office a decertification petition with respect to that unit.*fn1 Simons told the Hospital administration that the petition was filed and that she felt there was a majority in the Registered Nurse unit who did not want the Union. Also on September 29, 1978 the Union wrote to the Hospital requesting negotiations for a contract to succeed that which would expire on December 31. The Hospital responded on October 5, 1978 that it questioned the Union's majority status because of the pending decertification petition. It also informed the Union that it intended to make certain wage adjustments in order to correct a payroll error.
On October 25, 1978 the Regional Director wrote to the Hospital advising that it intended to hold the decertification petition in abeyance pending the disposition of the Union's unfair labor practice charges. The Hospital sought Board review of the decision to hold the decertification proceeding in abeyance, but the Board declined review. The Hospital then asked the Regional Director to inform it whether the decertification petition was supported by a majority of the employees in the bargaining unit. It was the company's position that under Telautographic Corp., 199 NLRB 892 (1972),*fn2 it had an obligation to refrain from collective bargaining with the Union if a majority in the bargaining union wished to decertify. The Regional Director responded on November 28, 1978 refusing to disclose this information because it was exempt from disclosure under exemption 6, 7(A), 7(C) and 7(D) of the Freedom of Information Act. 5 U.S.C. § 552.
In November of 1978, while the collective bargaining agreement was still in effect, the Hospital surveyed its employees with respect to certain medical/dental and pension benefits which they did not then enjoy. In December the Hospital reduced wages of some bargaining unit employees to correct the payroll error to which it had made reference in its October 5, 1978 letter to the Union. These actions resulted in additional unfair labor practice charges by the Union and the General Counsel.
On January 2, 1979, two days after the collective bargaining agreement expired, the Hospital advised the Union that while it would process grievances which arose while that contract was in effect, it would not bargain with respect to a new contract because it questioned the Union's majority status. The refusal to bargain resulted in additional unfair labor practice charges by the Union and the General Counsel.
On March 26, 1979, an administrative law judge found that the Hospital had violated section 8(a)(5) and (1) of the Act, 29 U.S.C. § 158(a)(5) and (1) by subcontracting out work from the technical unit and by discharging an employee in the Registered Nurse unit. The Board subsequently agreed, and this court enforced the resulting order. See Alexander Linn Hospital Ass'n, 244 NLRB 387 (1979), enforced mem., 624 F.2d 1090 (3d Cir. 1980).
In April 1979 Alexander Linn Hospital reached an agreement to merge with the Franklin Hospital in Franklin, New Jersey. The merger became effective on May 3, 1979, with the resulting hospital named Wallkill Valley General Hospital. Before the merger the two facilities had different wages, benefits, and working conditions. Franklin Hospital employed fifteen registered nurses who were transferred to the Sussex facility. Before the merger was finalized, Hospital supervisors met with employees to discuss it and any resulting changes. During these meetings several Franklin nurses expressed the desire not to be represented by the Union. The transfer of the Franklin nurses to the Sussex facility increased the number of registered nurses at Sussex from approximately 60 to approximately 75.
On May 18, 1979, the Union requested the Hospital to negotiate for a new collective bargaining agreement. Three days later the Union wrote to the Franklin Hospital Nurses Club, an organization to which the registered nurses formerly employed at Franklin had belonged, advising that it represented the registered nurses and inviting the Franklin nurses to meet and discuss problems resulting from the merger. Rosemary Fatzinger, the President of the Franklin Hospital Nurses Club, responded that the Franklin nurses are "in total agreement that joining a union at this time is out of the question." A copy of Fatzinger's letter was sent to the Hospital. On May 24, 1979, the Hospital responded to the Union's request for collective bargaining that it would not negotiate because the ...