Bay Medical Center

National Labor Relations Board - Board Decisions

Aug 24, 1977

231 N.L.R.B. 607 (N.L.R.B. 1977)

BAY MEDICAL CENTER
Bay Medical Center, Inc. and Michigan Licensed
Practical Nurses Association. Case 7-CA- 13639
August 24, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
Upon a charge filed on January 5, 1977, by
Michigan Licensed Practical Nurses Association,
herein called the Union, and duly served on Bay
Medical Center, Inc., herein called Respondent, the
General Counsel of the National Labor Relations
Board, by the Regional Director for Region 7, issued
a complaint on January 17, 1977, against Respon-
dent, alleging that Respondent had engaged in and
was engaging in unfair labor practices affecting
commerce within the meaning of Section 8(a)(5) and
(I) and Section 2(6) and (7) of the National Labor
Relations Act, as amended. Copies of the charge and
complaint were duly served on the parties to this
proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that at all times since
1968, and continuing to date, pursuant to voluntary
recognition and a series of collective-bargaining
contracts, the latest of which covered the period from
March 1, 1974, to February 28, 1977, the Union has
been the duly designated majority representative for
the purposes of collective bargaining of Respondent's
employees at its General Division in an appropriate
unit; and that commencing on or about December
18, 1976, and at all times thereafter, Respondent has
refused, and continues to date to refuse, to bargain
collectively with the Union as the exclusive bargain-
ing representative, although the Union has requested
and is requesting it to do so. On January 25, 1977,
Respondent filed its answer to the complaint
admitting in part, and denying in part, the allegations
in the complaint. Specifically, Respondent denies
that the acts complained of constitute an unfair labor
practice, contending there is no legal duty to bargain
with the Union because of the inappropriateness of
the unit.
On February 4, 1977, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on February 23,
1977, 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. Respon-
dent did not file 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
231 NLRB No. 107
National Labor Relations Board has delegated its
authority 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 Respondent con-
tends that it has no legal duty to bargain with the
Union because the unit is no longer appropriate in
view of the health care amendments to the National
Labor Relations Act. Respondent contends that a
unit consisting solely of licensed practical nurses is
inappropriate and that the appropriate unit should
include all technical employees at the General
Division as well as the Mercy Division of Bay
Medical Center, Inc. The General Counsel submits,
in effect, that Respondent, in its answer, is attempt-
ing to test the validity of the Regional Director's
certification in Case 7-RC-13740 and is also seeking
a review of the Board's decision in Bay Medical
Center, Inc., 218 NLRB 620 (1975), dealing with the
appropriateness of bargaining units, through the
medium of the instant unfair labor practice proceed-
ing. The General Counsel further submits that there
are no disputes with respect to any relevant or
material facts which would warrant a hearing in this
proceeding. We agree.
Our review of the record herein reveals that, at all
times since 1968, and continuous to date, pursuant to
voluntary recognition and a series of collective-
bargaining contracts, the latest of which covered the
period from March 1, 1974, to February 28, 1977, the
Union has been the duly designated collective-
bargaining representative for the unit of all full-time
and regular part-time licensed practical nurses
(LPNs) and graduate practical nurses employed by
Respondent at its General Division. Following a
request by the Union on or about December 3, 1976,
that Respondent bargain with it in respect to rates of
pay, wages, hours, and other terms and conditions of
employment, on or about December 18, 1976,
Respondent admittedly refused to recognize or
bargain with the Union.
In Bay Medical Center, Inc., supra, the Board
concluded that it would be improper to include
LPNs in the above-described unit at the General
Division in a single unit of technical employees
employed by Respondent at its Mercy and General
Divisions because of the prior bargaining history. In
addition, the Board concluded that it would also be
improper to include LPNs employed at Respondent's
Mercy Division, who at the time were unrepresented,
in the same single unit of technical employees.
Subsequently, the LPNs at the Mercy Division
designated the Union as their bargaining representa-
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tive pursuant to a Decision and Direction of Election
in Case 7-RC-13740.1
It is well settled that in the absence of newly
discovered or previously unavailable evidence or
special circumstances a respondent in a proceeding
alleging 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. 2
All issues raised by Respondent in this proceeding
were or could have been litigated in the prior
representation proceedings, 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 prior representation proceed-
ings. We therefore find that Respondent has not
raised any issue which is properly litigable in this
unfair labor practice proceeding. We shall, accord-
ingly, grant the Motion for Summary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, a Michigan corporation, is engaged in
providing health care at its two hospitals, Mercy
Division and General Division, which are located in
Bay City, Michigan. During the year ending Decem-
ber 31, 1975, which period is representative of its
operations during all times material hereto, Respon-
dent, in the course and conduct of its business
operations, received gross revenues in excess of
$500,000, and during that same period of time
Respondent purchased in excess of $20,000 in goods
and supplies from concerns located outside the State
of Michigan, and said goods and supplies were
transported and delivered to its place of business in
Bay City, Michigan, directly from points located
outside the State of Michigan.
We find, on the basis of the foregoing, that
Respondent 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.
I The Regional Director issued his Decision and Direction of Election in
this case on August 27, 1976, and thereafter Respondent filed a request for
review which was denied by the Board on September 22, 1976, because it
failed to raise any substantial issues warranting review. The Regional
Director certified the Union on October 5, 1976.
II. THE LABOR ORGANIZATION INVOLVED
Michigan Licensed Practical Nurses Association is
a labor organization within the meaning of Section
2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of Respondent constitute
a unit appropriate for collective-bargaining purposes
within the meaning of Section 9(b) of the Act:
All full-time and regular part-time licensed
practical nurses and graduate practical nurses
employed by Bay Medical Center, Inc., in its
General Division at Bay City, Michigan; exclud-
ing other technical employees, registered nurses,
nurses aides, ward clerks, guards and supervisors
as defined in the Act and all other employees.
2. The recognition
At all times since 1968, and continuous to date,
pursuant to voluntary recognition and a series of
collective-bargaining contracts, the latest of which
covered the period from March 1, 1974, to February
28, 1977, the Union has been the duly designated
representative for the purposes of collective bargain-
ing of the employees of Respondent in said unit and
the Union continues to be such exclusive representa-
tive within the meaning of Section 9(a) of the Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about December 3, 1976, and
at all times thereafter, the Union has requested
Respondent to bargain collectively with it as the
exclusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about December 18, 1976, and
continuing at all times thereafter to date, Respondent
has refused, 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
December 18, 1976, and at all times thereafter,
refused to bargain collectively with the Union as the
exclusive representative of the employees in the
appropriate unit, and that, by such refusal, Respon-
2 See Pittsburgh Plate Glass Co. v. N.LR.B., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Secs. 102.67(0) and 102.69(c).
608
BAY MEDICAL CENTER
dent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) and
(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section
Ill, above, occurring in connection with its opera-
tions 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
obstructing commerce and the free flow of com-
merce.
V. THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (I) 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.
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Bay Medical Center, Inc., is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Michigan Licensed Practical Nurses Associa-
tion is a labor organization within the meaning of
Section 2(5) of the Act.
3. All full-time and regular part-time licensed
practical nurses and graduate practical nurses em-
ployed by Bay Medical Center, Inc., in its General
Division at Bay City, Michigan; excluding other
technical employees, registered nurses, nurses aides,
ward clerks. guards and supervisors as defined in the
Act and all other employees, constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. Since 1968 the above-named labor organiza-
tion has been and now is the duly recognized 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 December 18, 1976,
and at all times thereafter, to bargain collectively
with the above-named labor organization as the
: In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice readfng "Posted by Order
exclusive bargaining representative of all the employ-
ees of Respondent in the appropriate unit, Respon-
dent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) of the
Act.
6. By the aforesaid refusal to bargain, Respon-
dent has interfered with, restrained, and coerced, and
is interfering with, restraining, and coercing, employ-
ees in the exercise of the rights guaranteed to them in
Section 7 of the Act, and thereby has engaged 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 mean-
ing 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
Relations Board hereby orders that Respondent, Bay
Medical Center, Inc., Bay City, Michigan, its
officers, agents, successors, and assigns, shall:
1. Cease and desist ;rom:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment with Michigan Licensed
Practical Nurses Association as the exclusive bar-
gaining representative of its employees in the
following appropriate unit:
All full-time and regular part-time licensed
practical nurses and graduate practical nurses
employed by Bay Medical Center, Inc., in its
General Division at Bay City, Michigan; exclud-
ing other technical employees, registered nurses,
nurses aides, ward clerks, guards and supervisors
as defined in the Act and all other employees.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise 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 under-
standing is reached, embody such understanding in a
signed agreement.
(b) Post at its facility at Bay City, Michigan, copies
of the attached notice marked "Appendix." 3 Copies
of said notice, on forms provided by the Regional
Director for Region 7, after being duly signed by
of the National Labor Relations Board" shall read "Posted Pursuant to a
(Continued)
609
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's representative, shall be posted by
Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereaf-
ter, in conspicuous places, including all places where
notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered
by any other material.
(c) Notify the Regional Director for Region 7, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
CHAIRMAN FANNING, dissenting:
I disagree with the finding of my colleagues that
the licensed practical nurses employed by Respon-
dent at its General Division constitute an appropri-
ate unit; accordingly, I would not find that Respon-
dent violated Sections 8(a)(5) and (1) of the Act by
refusing to bargain with the Union as the exclusive
representative of such unit.
A brief recapitulation of the history of this case is
helpful: As stated by the majority, in Bay Medical
Center, Inc., 218 NLRB 620 (1975), due to the high
degree of integration between the two divisions, the
Board found appropriate a single unit of all technical
employees employed at both the Mercy and General
Divisions. However, the General Division LPNs
were not included in the technical unit because they
were currently represented by the Union and the
Board sought to avoid upsetting the stability inherent
in that bargaining relationship. Nor were the unre-
presented Mercy Division LPNs included in the
technical unit because such a finding would have
fractionalized the representation of the LPNs em-
ployed by Respondent.
Subsequently, the Union petitioned to represent
the Mercy Division LPNs and won the election
directed by the Regional Director to determine
whether the employees in the Mercy Division voting
group wished to be included in the existing unit of
LPNs currently represented by the Union. Thereaf-
ter, the Regional Director issued a Certification of
Representative which certified that "the Union may
bargain for the employees in the above category
[Mercy Division LPNs] as part of the group it
currently represents. "
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
4 Although the record, in my opinion, is unclear as to whether the Union
requested that Respondent bargain over each division individually or the
two divisions together, it is clear that the complaint describes the
appropriate units as limited to each division and alleges that Respondent
violated the Act by refusing to bargain with the Union concerning the
separate divisions. Under these circumstances, I am unwilling to infer that
Respondent refused to bargain with the Union as representative of the
overall unit.
In view of the foregoing, it appears indisputable
that the unit found appropriate included LPNs at
both divisions. However, on November 24, 1976, the
Union requested that Respondent bargain concern-
ing the Mercy Division LPNs and on December 3,
1976, requested Respondent bargain concerning the
General Division LPNs. After Respondent refused,
the General Counsel issued the two complaints
alleging that Respondent unlawfully failed to bargain
over the two "appropriate" units.
My colleagues would grant the Motion for Summa-
ry Judgment and find Respondent violated Section
8(a)(5) of the Act by refusing to bargain with the
Union as representative of the employees in the
separate unit-Mercy Division LPNs and General
Division LPNs. However, neither the Regional
Director nor the Board has, at any time herein, found
such units appropriate. Instead, in my opinion, the
two divisions of LPNs comprise an appropriate unit
only when they are combined into a single unit. In
finding the violation, my colleagues appear to
overlook our finding in Bay Medical Center, supra,
that a single group of technical employees at both
divisions is appropriate as well as the inconsistency
between the complaints (which allege that each LPN
division is appropriate) and the earlier certification
by the Regional Director (that the Union may
bargain for the LPNs at the Mercy Division "as part
of the group of employees it currently represents").
The Regional Director did not find that the LPNs at
the Mercy Division constitute an appropriate unit;
he merely directed an election in the voting group at
the Mercy Division giving those voters an opportuni-
ty to determine whether they wished to be included
in the existing unit of LPNs, represented, at that
time, by the Union at the General Division. It is the
determination of a "voting group" vis-a-vis an
"appropriate unit" that my colleagues have miscon-
strued.
Had the complaints alleged or had the record
clearly demonstrated 4 that the Union requested that
Respondent bargain collectively with it as represen-
tative of the LPNs employed at the Mercy and
General Divisions (i.e., one unit) and had Respon-
dent refused on the ground such unit was inappropri-
ate, I would not hesitate to find that Respondent's
refusal violated Section 8(a)(5) and (1) of the Act.
However, since the complaint alleges that the Union
requested that Respondent recognize it as the
representative of what I consider to be two inappro-
priate units, I would not find that Respondent's
refusal was unlawful.
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BAY MEDICAL CENTER
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 Michi-
gan Licensed Practical 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 employees
in the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL, upon request, bargain with the
above-named Union, as the exclusive representa-
tive of all employees in the bargaining unit
described below, with respect to rates of pay,
wages, hours, and other terms and conditions of
employment, and, if an understanding is reached,
embody such understanding in a signed agree-
ment. The bargaining unit is:
All full-time and regular part-time li-
censed practical nurses and graduate practi-
cal nurses employed by Bay Medical Center,
Inc., in its General Division at Bay City,
Michigan; excluding other technical em-
ployees, registered nurses, nurses aides, ward
clerks, guards and supervisors as defined in
the Act and all other employees.
BAY MEDICAL CENTER,
INC.
611