Bay Medical Center, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1980

252 N.L.R.B. 1138 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bay Medical Center, Inc. and Michigan Licensed
Practical Nurses Association. Cases 7-CA-1417
and 7-CA-16215
September 30, 1980
DECISION AND ORDER
By CHAIRMAN FANNING AND MEMBERS
JENKINS AND PEN.ILLO
On May 5, 1980, Administrative Law Judge
Frank H. Itkin issued the attached Decision in this
proceeding. Thereafter, Bay Medical Center, Inc.,
Respondent herein, filed exceptions and a support-
ing brief, the General Counsel and the Charging
Party, Michigan Licensed Practical Nurses Associ-
ation, filed briefs in opposition to Respondent's ex-
ceptions, and the General Counsel filed a motion
requesting that the Board modify the Administra-
tive Law Judge's Decision and recommended
Order to reflect the full and correct name of the
exclusive collective-bargaining representative
herein.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions, briefs,
and motion' and has decided to affirm the rulings,
I On June 4, 1980, the General Counsel filed a motion with the Board
requesting that it modify the Administrative Law Judge's Decision aid
recommended Order to reflect the full and correct name or the exclusive
collective-bargaining representative herein. In support of its motion. the
General Counsel refers to an Order issued by the Board on April 23,
1980, i BHoy Medical Center. Inc., 239 NLRB 731 (1978), granting an all-
party motion to amend the Board's previous Order and notice to employ-
ees to reflect the full and correct name of the exclusive bargainitg repre-
sentative of Respondent's employees hy substituting "Bay Medical Center
LPN Council. affiliated with Michigan Licensed Practical Nurses Associ-
ation" fr "Michigan Licensed Practical Nurses Association "
The Board granted the all-party motion only because it s'as joined by
all parties and it requested no substantive change. If either the General
Counsel or the Charging arty had objected to the proposed change. the
motion would have been denied since, for the reasons discussed in fii. 2,
inrua, Respondent would have been estopped to denlly the authority of the
Michigan Licensed Practical Nurses Association to demand bargaining
for the LPN Council. The change being only cosmetic, the granting of
the motion did not alter the rights or obligatitons of parties
Since no party has objected to the change requested by the General
Counsel and since the requested chanlge is ill conformity ith our Order
of April 23, 1980. we hereby grant the General Counsel's motion and e
will amend the Administrative Law Judge's Decisionl aind recommended
Order accordingly
252 NLRB No. 159
findings,2 and conclusions 3 of the Administrative
Law Judge and to adopt his recommended Order,
as modified herein.4
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Bay Medical Center, Inc., Bay City, Michigan, its
officers, agents, successors, and assigns, shall take
2 Respondent has excepted to the Administrative las Judge's findings
that its duty to bargain uder the Act was not suspended by a slay of
proceedings ordered by the Sixth Circuit Court f Appeals in the en-
forcement proceedings of Bay iMedical ('enter, Inc1, vlpra We find no
merit i Respondent's exceptin. A reviess of the court's order. entered
April 16, 1979, reveals that the court was granting Respiondent's and the
(General Counsel's joint motion requesting that "the Curt enter an Order
staying further uppellate proceedings herein .' (emphasis supplied). As
the stay was specifically limited to the appellate proceedings related to
Buy Medical Center, In(., upra, it had no effect upton Respondent's duty
to bargain herein.
Respondent has also excepted to the Administrative I.aw Judge's fid-
ings that it iolated Sec. 8(a)(5) aid (1) of the Act by refusing to hargain
with the Charging Party. Respondent argues that, since the exclusive bar-
gaining representative is the ay Medical Center LPN Council affiliated
with the Charging Party, it acted lawfully in refusing to bargain with the
Charging Part I The record herein, including Respondent's brief to the
Administrative l.av Judge, reeals that "''Respondent has consistently re-
fused o bargain with [the Chargig Party] (ln the grounds that it was not
an appropriate unit by itself " Thus, Respondent's refusal to bargain
was based upon its assertin that the bargaining unit was inappropriate
rather than uptn any claini that the Charging Party lacked authority to
demand bargainilng on behalf of the Bay Medical Center Ii'N Council
11 fact, in its answer ad amended aniswer filed hereil, Respondenlt ad-
nittled all of the factual allegations related to the identity of the collec-
live-harguinig representaltive, disputing tonly the appropriateness of the
unit. Under these crcunstat ances we find that Respondent is estopped to
assert that the Charging l'arty lacked authority to demanld bargaining on
behalf of the Blay Medical Center LPN Council See A4rgus Optics, a Dioi-
sion (o rgus, Inc., 210 NLRB 923 (1974), efilrcement denied for other
reasons 515 F 2d 939 (th Cir. 1975).
:' Respondelit has excepted to the Administrative Law Judge's conclu-
sion that the charges hereitl :ere filed within the time limits specified i)
Sec (bh) of the Act. We find no merit in Resptndent's exception 'The
record establishes that, since November 24, 1976. Respondent consistent-
ly has refused to bargain with the Charging Party or the LPN Council
despite repeated requests that it d so As a result of its numerous refusals
to bargain, Resplondent has been engaged i litigatioin before the Board
and the courts for the last 4 years Each of Respondent's refusals to bar-
gain, however, have included an indication that it vould engaged in bar-
gaining "as soonll as the legalities of the unit questiotn are decided . "
(quotlig Responldent's December 17, 1976, letter to the Charging arty)
Clearly, the "legalities f the unit question" culd have been resolved
prior to the cmpletioni of Respondent's new facility and, if they had
been. Respondent, by its owin iadmission, would have bargained about any
future changes il working conditions. Givenl the uncertainty inherent in
Respolldent' cilgent refusals to bargain, we agree with the Adminis-
trative las Judge's conclusion that the 10(b) period did not begin to run
until Respolldenlt unilaterally implemented the change in the former Gen-
eral Division LI'Ns' 78 hour workday when they transferred to the ness
factilit
4 Member Pcenello's participation in this Decisionl does not represent a
retrealt from his position that a unit limited to licensed practical nurses is
inappropriate in the health care industry (see generally his dissenting
opinoll in ll 41hcn (;eneraul Iospiral, 329 NLRB 872 (1978). enfrcemenit
denied 6(08 F2d 95 (3d Cir 1979)), but rather is based upon the fact that
Respondenlt is no longer conltesting the appropriateness of the unit in-
votl ed hereino
I 1 38
BAY Mi)IC(AI (IN I IR. INC
the action set forth in the said recommended
Order, as so modified:
I. Modify paragraph l(a) by substituting "Bay
Medical Center LPN Council, affiliated with
Michigan Licensed Practical Nurses Associatioin"
for "Michigan Licensed Practical Nurses Associ-
ation."
2. Modify paragraph 2(a) by substituting "LPN
Council" for "Association."
3. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPIOYEE S
POSTED BY ORI)ER OF THE
NATIONAL LABOR REI.ATIONS BOARD
An Agency of the United States Government
After a full hearing at which both sides had the op-
portunity to present their evidence, the National
Labor Relations Board has found that Bay Medical
Center, Inc., has violated the National Labor Rela-
tions Act, and has ordered us to post this notice.
We therefore notify you that:
WE Wil.l. NOT, upon request, fail or refuse
to bargain collectively and in good faith with
respect to rates of pay, wages, hours of em-
ployment, and other terms and conditions of
employment, with Bay Medical Center LPN
Council, affiliated with Michigan Licensed
Practical Nurses Association, as the exclusive
bargaining representative of the employees in
the unit described below, by unilaterally insti-
tuting a 7.5-hour workday for our General Di-
vision employees upon their transfer to our
new facility; by unilaterally changing the
method of computing vacation benefits for said
unit employees; or by unilaterally changing the
method of computing contributions to said unit
employees' annuity accounts. The appropriate
bargaining unit is:
All full-time and regular part-time licensed
practical nurses and graduate practical
nurses employed by the Employer at its Bay
City, Michigan, installations, excluding other
technical employees, registered nurses,
nurses aides, ward clerks, guards and super-
visors as defined in the Act, and all other
employees.
WE WILI. NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of rights guaranteed them in
Section 7 of the National Labor Relations Act.
WE WILL, upon request, bargain collectively
in good faith with the LPN Council as the ex-
clusive representative of our employees in the
above appropriate unit with respect to rates of
pay, wages, hours of work, and other terms
and conditions of employment, and, if an un-
derstanding is reached, embody such under-
standing in a signed agreement.
W- wll.i. reinstate our General Division
unit employees' 7.8-hour workday to on or
about November 1. 1977, when said employees
commenced working at our new facility, and
make said unit employees whole for any losses
which they may have sustained as a result of
this unilateral action, together with interest as
provided in the Board's Decision and Order.
Wl WILL similarly restore the status quo
ante and make whole our unit employees for
losses, if any, sustained by our unilateral
changes in computing their vacation benefits
and payments to annuity accounts as provided
in the Board's Decision and Order.
BAY MEDICA. CENTER, INC.
DECISION
SIAIEMI.NT 01l THE CASE
FRANK H. ITKIN, Administrative Law Judge: Unfair
labor practice charges were filed in this proceeding on
December 22, 1977, and on March 27, 1979. An amended
consolidated complaint was issued on April 25, 1979.
The case was heard in Bay City, Michigan, on August 1,
1979. Briefly, General Counsel alleges that Respondent,
in violation of Section 8(a)(5) and (1) of the National
Labor Relations Act, changed terms and conditions of
employment with respect to certain of its employees in
an appropriate unit without bargaining with their repre-
sentative, the Charging Party Association, including the
institution of a 7.5-hour workday on or about November
1, 1977; a change in the method of computing vacation
benefits on or about January 5 and April 13, 1978; and a
change in the method of computing contributions to em-
ployee annuity accounts on or about November 22, 1978.
Respondent denies that it has violated the Act as alleged.
Upon the entire record, including my observation of the
witnesses, and after due consideration of the briefs of
counsel, I make the following:
FINI)INGS OF FACT
Respondent Bay Medical Center, Inc., is admittedly an
employer engaged in commerce. Charging Party Michi-
gan Licensed Practical Nurses Association is admittedly
a labor organization. Background findings and related
litigation between the parties are summarized by the
Board and court of appeals in Bay Medical Center, Inc..
224 NLRB 69 (1976), enfd. 588 F.2d 1174 (6th Cir.
1978), cert. denied 444 U.S. 827 (1979), and 239 NLRB
731 (1978). The Board found in 239 NLRB 731:
II 19
DECISIONS ()F NATIONAL LABOR REI.ATI()NS BO)AR)
Respondent has been engaged in the business of
providing health care at two hospitals, Mercy Divi-
sion and General Division, located in Bay City,
Michigan. It appears that recently Respondent has
begun to merge the two facilities and to move its
operations to a new single facility.
The following employees of Respondent consti-
tute a unit appropriate for collective-bargaining pur-
poses within the meaning of Section 9(b) of the Act:
All full-time and regular part-time licensed prac-
tical nurses and graduate practical nurses em-
ployed by the Employer at its Bay City, Michi-
gan, installations, excluding other technical em-
ployees, registered nurses, nurses aides, ward
clerks, guards and supervisors as defined in the
Act, and all other employees.
At all times since 1968 and continuing to date,
pursuant to voluntary recognition and a series of
collective-bargaining agreements, the latest of
which covered the period from March 1, 1974, to
February 28, 1977, the Union has been the duly des-
ignated collective-bargaining representative of all
full-time and regular part-time licensed practical
nurses and graduate practical nurses employed at
Respondent's General Division, and, by virtue of
Section 9(a) of the Act, has been, and is now, the
exclusive representative of said employees for the
purpose of collective bargaining.
On September 23, 1976, a majority of full-time
and regular part-time licensed practical nurses and
graduate practical nurses employed at Respondent's
Mercy Division, pursuant to an Armour-Globe type
secret-ballot election conducted under the supervi-
sion of the Regional Director for Region 7, desig-
nated the Union as their representative for the pur-
pose of collective bargaining with Respondent. On
or about October 5, 1976, the Regional Director for
Region 7 issued a Certification of Results of Elec-
tion in Case 7-RC-13740, wherein the Union was
certified to bargain for these employees as a part of
the group of employees which it then represented.
Accordingly, the Union is the collective-bargaining
representative of said employees in the above-de-
scribed unit within the meaning of Section 9(a) of
the Act.
In addition to the findings we made in the cases
reported at 231 NLRB 647 and 607, we find that
commencing on or about June 28, 1977, and at all
times thereafter, the Union has requested Respon-
dent to bargain collectively with it as the exclusive
collective-bargaining representative of all the em-
ployees in the above described unit. Commencing
on or about July 6, 1977, and continuing at all times
thereafter to date, Respondent has refused, and con-
tinues to refuse, to recognize and bergain with the
Union as the exclusive representative for collective
bargaining of all employees in said unit. According-
ly, we find that Respondent has, since July 6, 1977,
and at all times thereafter, refused to bargain collec-
tively with the Union as the exclusive representa-
tive of the employees in the appropriate unit, and
by such refusal Respondent has engaged in and is
engaging in unfair labor practices within the mean-
ing of Section 8(a)(5) and (1) of the Act.
Counsel for Respondent, in his brief filed in the instant
case on September 18, 1979 (Br. pp. 2-3), states:
The Respondent has consistently refused to bargain
with the Michigan Licensed Practical Nurse's Asso-
ciation on the grounds that it was not an appropri-
ate unit by itself, and Respondent has maintained
this position throughout all past and current pro-
ceedings.
At the time, Respondent's petition for a writ of certiorari
to the Sixth Circuit was still pending before the Supreme
Court with reference to the Board's Order in 224 NLRB
69. The petition, as noted, has since been denied. Sum-
marized below is the testimony and related documentary
evidence pertaining to the present unfair labor practice
complaint.
A. The Institution of a 75-Hour Workday During
November 1977
James Chiodini, director for the Michigan Licensed
Practical Nurses Association, testified that his Associ-
ation had a collective-bargaining agreement "covering
the General Division . . . licensed practical nurses," ef-
fective March 1, 1974, to February 28, 1977 (G.C. Exh.
2). This agreement provided (p. 10) that the "standard
workday shall consist of 7.8 hours in a 24-hour period
.... " On November 12, 1976, Chiodini sent Respon-
dent notification of its "intent to amend and/or modify
the present agreement . . . which will expire on Febru-
ary 28, 1977" (G.C. Exh. 3). Later, on November 24,
1976, Chiodini sent Respondent a letter requesting "some
clarification regarding the Hospital's position towards
our upcoming negotiations." See General Counsels Ex-
hibit 5. Chiodini noted: "In view of the several NLRB
decisions and our recent election at Mercy Division it
would be our intention to renegotiate a contract cover-
ing both General and Mercy Division LPNs." On No-
vember 24, 1976, Respondent's administrator, James E.
Wharton, replied, in part as follows (G.C. Exh. 6):
This entire subject is presently before the United
States Court of Appeals for the Sixth [Circuit].
Until a decision is handed down, we must in good
faith respectfully decline your request to bargain
over a collective bargaining agreement covering the
licensed practical nurses of the Mercy Memorial Di-
vision. We are, however, available to meet with you
. . .relative to negotiating amendments to the
agreement presently in effect ....
1140
BAY MEDICAL CENTER, INC.
The Union thereafter filed unfair labor practice
charges with the Board. (See G.C. Exhs. 7 and 8.) And,
on December 3, 1976, Chiodini wrote Wharton (G.C.
Exh. 7):
In the meantime, we can begin negotiations in the
other areas, which have been rescheduled . . . on
December 6, 1976 . ...
However, on December 17, 1976, Wharton apprised
Chiodini (G.C. Exh. 8): "Since receiving these charges
and discussing the matter fully with counsel, we must
inform you that the Medical Center will not be able to
bargain with your Association with respect to any mat-
ters covering licensed practical nurses until a decision is
handed down from the Sixth Circuit in the case which is
now pending before that Court . . . For the reasons in-
dicated, we will not be meeting with you further to ne-
gotiate amendments to the present agreement . . . ."
Chiodini testified that during early May 1977, he had
been informed "that some LPNs were being . . . tempo-
rarily transferred from the General Division to the
Mercy Division, and that they were wondering and con-
cerned . . . whether they'd be receiving 8 hours pay."
Chiodini explained: "At the Mercy Division, where they
had been without a contract, the normal workday had
been 7.5 hours"; however, as noted, the "standard work-
day" at the General Division was 7.8 hours. According-
ly, Chiodini sent Wharton the following letter on May 2,
1977 (G.C. Exh. 9):
I've been informed that the Hospital may soon be
transferring some units and nursing personnel from
General Division to Mercy Division.
Since, unfortunately, we have not been able to dis-
cuss the procedure for transfers either to the Mercy
Division or to the new building, I will assume that
the LPNs will continue to receive the full benefits
of our labor agreement, including pay for a 7.8 hour
day.
Wharton replied on May 6, 1977, in part as follows
(G.C. Exh. 10):
For legal reasons about which you have been previ-
ously informed, Bay Medical Center declined to
recognize your Association as the exclusive bargain-
ing agent for the LPNs at the General Division.
No new collective bargaining agreement was nego-
tiated to succeed the one which expired on Febru-
ary 28, 1977, and as a result there are no contrac-
tual obligations with respect to transfers, working
hours, etc.
Wharton asserted in his letter that "over a year ago" the
"three unions at the General Division" were apprised
that the "team nursing concept has been in use at the
Mercy Division for many many years" and Respondent
"planned to use this method in the new Bay Medical
Center when that facility is occupied"; the LPNs at
Mercy Division "work a 7.5 hour shift"; Respondent has
had "some General Division . . . LPNs work at the
Mercy Memorial Division to familiarize them with this
method"; "since the summer of 1976 the team nursing
concept has been used in a limited manner at the General
Division to familiarize nursing service personnel with the
concept"; and, further,
[during] the past winter, nursing service administra-
tion and [Wharton] invited all the LPNs to attend a
meeting and at the time the LPNs were again in-
formed that [the Employer] intends to use the team
nursing concept in the new facility and that the
LPNs would be scheduled to work 7.5 hour shifts.
On June 9, 1977, Chiodini again wrote Respondent,
stating on behalf of the LPNs "their very grave concern
over the Hospital's proposed move to reduce their work-
ing hours from 7.8 hours to 7.5 hours per day." Chiodini
added: "Because we have been prevented from discuss-
ing this formally, I would like to take this opportunity to
ask you to reconsider your decision." (See G.C. Exh.
11.) Wharton replied on June 17, 1977, noting, inter alia,
that there are about 140 LPNs at the Mercy Division
and about 78 LPNs at the General Division; and that
"the Hospital is not cutting the hours of all of its LPNs
to 7.5 hours per shift . . . the Mercy Division LPNs, of
whom there are 140, have worked that schedule for
years and years." (See G.C. Exh. 12.)
Thereafter, on June 28, 1977, Chiodini "again" re-
quested Respondent "to negotiate a collective bargaining
agreement" for the entire LPN unit. (See G.C. Exh. 13.)
And, on July 7, 1977, Wharton replied (G.C. Exh. 14):
"As you know, the unit question is being litigated in the
courts and we hope to resolve the situation in the next
few months." Later, on September 8, 1977, and on Janu-
ary 3, 1979 (G.C. Exhs. 16 and 17), Chiodini renewed his
requests to bargain, without success. On January 26,
1979, counsel for Respondent notified Chiodini that "we
will continue to process our appeal in the LPN unfair
labor practice case" and "for these reasons . . will not
be willing to bargain.... " (See G.C. Exh. 18.)'
Angela Uhlman, employed as an LPN at the Hospital's
"new building," and also a union representative, testified
that she "started working at General Hospital" about
1970; that "General merged with Mercy Hospital" about
1972 and she then "started working for General Division
of Bay Medical Center"; that she "was paid for 7.8
hours" when she worked at the General Division; and
that she now works 7.5 hours a day and is paid for 7.5
hours. Uhlman recalled that she "was transferred" to the
"new building" of Bay Medical Center on November 11,
1977. Uhlman testified:
[s]he [the supervisor at General Division] brought
me the slip and she said that . . . I had to sign this
[G.C. Exh. 19] to work at the new Hospital. And, I
said I don't agree with this because they're chang-
ing my hours from 7.8 to 7.5, and we had not had a
chance to talk about it . . . . And she said that [my]
' Chiodini acknowledged that he "first heard" that Resnondent "was
planning to use a 7 5 hour day" for "nurses in the nes' building" about
August 1976 This would take effect, Chiodini believed. "hen they en-
tered the nev building, whenever that was completed
1141
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
job would be terminated. I had to sign it or else.
So, I signed it. 2
Hospital Administrator James E. Wharton, recalling
the transfer of General Division LPNs to the Employer's
new facility, testified, in part as follows:
Q. Isn't it true, Mr. Wharton, that most if not all
of the LPNs from General Division and Mercy Di-
vision were given employment at the new Bay
Medical Center facility?
A. Indeed, most of them were.
Q. Isn't it true, Mr. Wharton, that most if not all
of the LPNs now employed at Bay Medical Center
were formerly employed at either the General Divi-
sion or the Mercy Division?
A. There's a rapid turnover in Hospital person-
nel, but I still think that most of them had been
there prior to-you see, we've been in the new
Hospital now about 18- 19 months-and I'd say
most of them, yes.
Q. What date would you set as the date you
moved into the new Hospital?
A. It was a continuing process over a four or five
month period. It started November of 1977, it
wasn't completed until, I'd say, sometime in March
or April of 1978.
Q. During that period of time were most if not
all of the LPNs of the new facility from either Gen-
eral or Mercy Division?
A. During that time, yes, they were.
Q. [What] was done with the remaining LPNs
who worked at General Division when General Di-
vision was being closed down pending the opening
of the new facility? Were they not in fact trans-
ferred to the Mercy Division temporarily?
A. Yes, some of them were. Some of them were
laid off.
Q. And that was in order to begin gradually clos-
ing the General Division, isn't that correct?
A. Yes.
Q. That they were transferred to the Mercy Divi-
sion?
A. Yes.
Q. For a temporary time, until the new facility
opened?
A. Yes.
Q. Okay, and isn't it true that when the new fa-
cility opened, they were then transferred to the new
facility?
A. Some were, yes.
Q. Do you have any LPNs still working in the
Mercy Division?
A. No, but some quit. Some don't like the new
Hospital.
Q. Those who did not quit were transferred to
the new facility'?
Uhlman acknoledged that she "first" "learned" hal the (General
Division l .'Ns ho ere Io be ransferred to ay Medical "uld go
from a 7 day to a 7 5 day on or habout August 26, 1976
A. Yes. Two retired.
Q. Mr. Wharton, you testified you had numerous
meetings with the LPNs regarding the transfers to
the new facility, but you could not recall when
the-what these names were-or specifically who
was present. Isn't it true that during these meetings
you did not bargain or negotiate with any represen-
tative of the LPNs, staff council of the Michigan
Licensed Practical Nurses, with respect to the
length of the workday? In other words, 7.5 hour
day, in the new facility?
A. That's true.
B. The Change in the Method of Computing Vacation
Benefits and Contributions to Employee Annuity
Accounts
The 1974-77 contract between the parties (G.C. Exh.
2, p. 16) also provides that "an employee's vacation pay
formula shall be calculated by multiplying his previous
hours of pay up to a maximum of 2080 by 1/1850 times
80 hours times his regular rate of hourly pay excluding
shift and weekend differentials until he accumulated 9250
hours of paid hours .... " Union Director Chiodini ex-
plained that this formula "computes ... vacation pay
. . . on all paid hours for the employee." Chiodini first
learned that the Hospital "changed its method of com-
puting vacation pay from the method as provided in the
contract" in December 1978 at "a meeting with [his]
staff council"-he had received no notification from the
Hospital and "theHospital has refused all of [his] requests
to bargain about anything."
Chiodini further testified that he had been informed
"that the Hospital had instituted a tax deferred annuity
program for employees including LPNs' that the Hospi-
tal then changed the method for computing the contribu-
tions of these annuities"; and that
I was made aware of that change . . . at that same
time in December, at that same meeting where they
told me about the change in vacations.
Chiodini "received no notification from the Hospital" for
this change in computing contributions to the annuity ac-
counts.
LPN Uhlman testified that on January 5, 1978, she re-
ceived a copy of General Counsel Exhibit 20 "in [her]
paycheck," which provided a "new and improved
method of calculating vacation pay .... " Uhlman ex-
plained that "they were [now] computing the vacation
pay on hours worked, not hours paid. Previously, every-
thing had gone by hours paid. "Later, on or about April
13, 1978, Uhlman received a further notification from the
Employer for "computing vacation days," "still based on
hours worked." See General Counsel's Exhibit 21.
Sandra Wisnewski, employed by the Hospital as an
LPN and also a union representative, testified that in the
past the Employer did not have an annuity program for
LPNs; that on December 23, 1976, she received notifica-
tion from the Employer pertaining to "a tax deferred
annuity program" (G.C. Exhs. 22, 23, and 24); and that
on November 22, 1978, she received notification from
the Hospital that it was changing the method of comput-
1142
BAY MEDICAL CENTER, INC
ing the contribution to the annuity account (G.C. Exh.
25). Also see Respondent's Exhibit 3.
I credit the testimony of Chiodini, Uhlman, and Wis-
newski as summarized above. Their testimony is essen-
tially uncontradicted, mutually corroborative, and sub-
stantiated in large part by the testimony of Wharton as
well as by undisputed documentary evidence. Insofar as
the testimony of Wharton differs with the above testimo-
ny of Chiodini, Uhlman, and Wisnewski, I credit the tes-
timony of Chiodini, Uhlman and Wisnewski. On this
entire record, including the demeanor of the witnesses, I
am persuaded here that the above testimony of Chiodini,
Uhlman, and Wisnewski is more complete, detailed and
reliable. On the other hand, Wharton's testimony was, at
times, incomplete, vague, and unclear.
Discussion
It is settled law that "an employer violates his duty to
bargain" with the duly designated representative of his
employees in an appropriat unit "if- when negotiations
are sought or are in progress-he unilaterally institutes
changes in existing terms and conditions of employ-
ment." Taft Broadcasting Co., 163 NLRB 475 (1967),
enfd. 395 F. 2d 622 (D.C. Cir 1968). The Board, as recit-
ed above, ordered Respondent here to bargain with the
Union as the exclusive representative of "all full-time and
regular part-time licensed practical nurses and graduate
practical nurses employed by the Employer at its Bay
City . . . installations...." See 239 NLRB 731. The
Board found that Respondent, "by refusing on or about
July 6, 1977, and at all times thereafter, to bargain col-
lectively with the [Union] as the exclusive bargaining
representative of all of the employees of Respondent in
the appropriate unit . . . has engaged in and is engaging
in unfair labor practices within the meaning of Section
8(a)(5) of the Act." (Ibid.) These findings are, of course,
binding upon the parties in the instant case, where Re-
spondent, as part of its persistent and continuous refusal
to bargain with the Union, is alleged to have unilaterally
instituted certain changes in the unit employees' terms
and conditions of employment on or about November 1,
1977, and January 5, April 13, and November 22, 1978.
The essentially uncontradicted evidence of record, as
detailed supra, makes it quite clear that, at all times perti-
nent here, Respondent employer repeatedly refused to
bargain with the Union with respect to any terms and
conditions of employment pertaining to its LPN unit em-
ployees. As Respondent apprised the Union on Decem-
ber 17, 1976 (G.C. Exh. 8): "the Medical Center will not
be able to bargain with your Association with respect to
any matters covering LPNs until a decision is handed
down by the United States Court of Appeals for the
Sixth Circuit in the case which is now pending before
that Court ... " During the following year, on May 2,
1977, when the Union questioned the Employer as to
whether or not nursing personnel temporarily transferred
from its General Division to its Mercy Division, pending
completion of its new facility, "will continue to receive
the full benefits of our labor agreement including pay for
a 7.8 hour day" (G.C. Exh. 9), Respondent again assert-
ed that "for legal reasons about which you have been
previously informed, ay Medical Center declined to
recognize your Association as the exclusive bargaining
agent for the LPNs at the General Division" (G.C. Exh.
10, also see G.C. Exhs. 14 and 18). It is, however, "well
settled that collateral litigation does not suspend the duty
[of an Employer] to bargain under section 8(a)(5) .... "
Montgomery Ward & Co., 228 NLRB 1330, 1331 (1977). :
The essentially uncontradicted evidence of record in
this case also makes it quite clear that Respondent Em-
ployer unilaterally instititued a 7.5-hour workday for its
General Division LPNs when they transferred to the
new facility commencing on or about November 1, 1977.
Repeated requests by the Union to bargain over this con-
templated change in the unit employees' workday were
either rejected or ignored, pending resolution of Respon-
dent's unit contentions before the court of appeals and
Supreme Court. Counsel for Respondent now argues (br.
pp. 9-14) that the initial unfair labor practice charge in
this case was filed by the Union on December 22, 1977,
and, consequently, "[a]lthough the final act or change
did not occur until November 1977. . . the activities cul-
minating in the final transfer occurred well before six
months of the filing of the charge and, as such, are
barred by" Section 10(b) of the Act. In support of this
and related contentions, counsel for Respondent notes,
inter alia, that the Employer announced this contemplat-
ed change in the unit employees' workday in 1976; that
unit employees who were temporarily transferred from
General Division to Mercy Division pending completion
of the new facility were previously affected by this same
change; and that the Union had filed earlier and timely
charges pertaining to this change which were with-
drawn. (See Resp. Exh. .)
It is true, as counsel for Respondent argues, that the
Employer announced during 1976 that it contemplated
using a 7.5, and not a 7.8, hour day for its LPNs "in the
new building" Accordingly, the General Division LPNs
would be changed from their 7.8-hour day to a 7.5-hour
day when and if they transferred to the new facility. It is
also true that General Division LPNs were temporarily
transferred to Mercy Division, pending completion of
the new facility, where they, like the Mercy Division
personnel, worked a 7.5-hour day. However, it is these
temporary transfers which were the subject of the earlier
unfair labor practice charges; The General Counsel is
only concerned here with the transfer of former General
Division unit personnel to the new facility and the
change in their workday (G.C. br. p. 2); and the new fa-
cility was, as noted, not opened until early November
1977.
Under these circumstances, the 10(b) time period
should not commence to run from the Employer's gener-
al announcement of a contemplated change in 1976 or
: Counsel for Respondent has annexed to his brief a copy of a joint
motlion by he parties (dated March 27 and April 9. 1979) and an order by
the Sixth Circuit (filed on April 16. 1979), granting a stay of proceedings
with rerpecl to the Board's Order In 239 NLRB 731, pending final deter-
minatiot of the Ernploer's petition for ,a srlt of certiorari uith rspeci
to the Sixth Circuit's decisioll reprted at 5S F2d 1174 (1978) The Sul
preme C(ourt. is oled. has sinice denied he Fploxs'r's petlition In any
eventl. the stay of proceedings and mandate referred to in the Employerrs
Joint mottin did not sspend the mniplhicr', hargainilng bihligatiin at an
tlm rn prtlilt llt here
1143
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from the temporary transfer of LPNs among the divi-
sions pending completion of the new facility. These earli-
er announcements and temporary transfers are too
remote from the final act which is the subject of com-
plaint here. Indeed, the Employer, in the meantime,
could have agreed to bargain or determined not to im-
plement the contemplated change in the former General
Division LPNs' 7.8-hour workday when they were trans-
ferred to the new facility. In sum, the General Counsel
complains here only of the change unilaterally imple-
mented at the new facility (see Swift Service Stores, Inc.,
169 NLRB 359, 360 (1968), and the "earliest possible
date that [the] . . . employees could have been aware of
the changes affecting them" at the new facility was "the
date each was" transferred or recalled to that facility
(Florida Steel Corp., 235 NLRB 1010, 1011 (1978). 4
The record here also makes it quite clear that Respon-
dent unilaterally changed the method of computing unit
employees' vacation benefits and contributions to em-
ployee annuity accounts, as alleged. These allegations are
similarly not barred by Section 10(b) of the Act. For,
"the Board is not precluded from 'dealing adequately
with unfair practices which are related to those alleged
in the [earlier] charge and which grow out of them while
the proceeding is pending before the Board." N.L.R.B.
v. Fant Milling Company, 360 U.S. 301, 305-309 (1959).
Further, counsel for Respondent's related contention that
the Union, by its conduct, waived its right to bargain
here is plainly contrary to the evidence of record. Re-
spondent repeatedly and persistently refused to bargain
with the Union over any terms and conditions of em-
ployment at all times pertinent here.
Respondent therefore has violated Section 8(a)(5) and
(1) of the Act, as alleged.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce as
alleged.
2. The Charging Party is a labor organization as al-
leged.
3. Respondent violated Section 8(a)(5) and (1) of the
Act by changing terms and conditions of employment
with respect to its employees in an appropriate unit, as
described below, without bargaining with their duly des-
ignated representative, Charging Party, by instituting a
7.5-hour workday for its General Division employees
when they transferred to the Employer's new facility
commencing on or about November 1, 1977; by chang-
ing the method of computing vacation benefits for said
unit employees on or about January 5 and April 13,
1978; and by changing the method of computing contri-
butions to said unit employees' annuity accounts on or
Counlsel for Respondent's reliance on cases such as Nazaretrh Regionul
high School v. N.L.R.B.. 549 F2d 873 (2d Cir. 1977). and N.L.R.B.
Californiu Schtxl of Professional Pvychology 583 F.2d 1099 (91h Cir 1978).,
is misplaced. These, and related cases, are factually inapposite here ]The
court noted in Nazureh, iupra: "The action taken by Nauzureth . was
not tentative but a final decision not to hire [the employee] for the
coming school year and any alleged unfair labor practice charge .
would have to be filed within 6 months of that esv ert' he court
similarly noted in ('allornia School of Proisvionul Py'(hology, upra "the
Schooil's letter of July 23 was an ulnequivocal statemenl that [the employ-
eel would rut be rehired "
about November 22, 1978. The appropriate bargaining
unit, as alleged, is as follows:
All full-time and regular part-time licensed practical
nurses and graduate practical nurses employed by
the Employer at its Bay City, Michigan, installa-
tions, excluding other technical employees, regis-
tered nurses, nurses aides, ward clerks, guards and
supervisors as defined in the Act, and all other em-
ployees.
4. The unfair labor practices found above affect com-
merce as alleged.
REMEDY
To remedy the unfair labor practices found above, Re-
spondent Employer will be directed to cease and desist
from engaging in the conduct found unlawful herein, or
like or related conduct; to bargain upon request with the
Union; and to post the attached notice. Further, Respon-
dent Employer will be directed to restore the status quo
ante with respect to the General Division unit employees
transferred to the Employer's new facility commencing
on or about November 1, 1977, by rescinding the unilat-
eral change in their 7.8-hour workday, as found unlawful
herein, and to make said unit employees whole for any
losses they may have sustained as a result of this unilater-
al action, together with interest thereon to be computed
in the manner prescribed in F. W Woolworth Company,
90 NLRB 289 (1950), and Florida Steel Corporation, 231
NLRB 651 (1977). See, generally, Isis Plumbing & Heat-
ing Co., 138 NLRB 716 (1962). The record is not suffi-
ciently clear as to whether or not unit employees sus-
tained any losses as a result of the Employer's unilateral
changes in computing vacation benefits and annuity con-
tributions, also found unlawful here. Such a determina-
tion may be made during the compliance stage of this
proceeding. If it is determined that unit employees sus-
tained any losses from these additional unilateral actions,
the above restoration of the status quo ante and make
whole remedial provisions shall be applicable to these
unilateral actions as well.
ORDER s
The Respondent, Bay Medical Center, Inc., its offi-
cers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Failing and refusing, upon request, to bargain col-
lectively and in good faith with respect to rates of pay,
wages, hours of employment, and other terms and condi-
tions of employment with Michigan Licensed Practical
Nurses Association, as the exclusive bargaining represen-
tative of the employees in the unit described below, by
unilaterally instituting a 7.5-hour workday for its General
Division employees upon their transfer to Respondent's
" In he event no exceptions are filed as provided by Sec. 11)2.46 of the
Rules and Regulations of the National Labor Relations Board. the find-
inrags, conclusions, ard recommended Order herein shall, as provided in
Sec. 102.48 of the Rules and Regulations. he adopted by the Board and
become its indings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
1144
BAY MEF)ICAI. CNITIR. INC
new facility; by unilaterally changing the method of
computing vacation benefits for said unit employees; and
by unilaterally changing the method of computing con-
tributions to said unit employees' annuity accounts. The
appropriate bargaining unit is:
All full-time and regular part-time licensed practical
nurses and graduate practical nurses employed by
the Employer at its Bay City, Michigan, installa-
tions, excluding other technical employees, regis-
tered nurses, nurses aides, ward clerks, guards and
supervisors as defined in the Act, and all other em-
ployees.
(b) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the purposes and policies
of the Act:
(a) Upon request, bargain collectively and in good
faith with the Association as the exclusive representative
of its employees in the above appropriate unit with re-
spect to rates of pay, wages, hours of work, and other
terms and conditions of employment and, if an under-
standing is reached, embody such understanding in a
signed agreement.
(b) Reinstitute its General Division unit employees 7.8-
hour workday retroactively to on or about November 1,
1977, when said employees commenced working at Re-
spondent's new facility, and make said unit employees
whole for any losses which they may have sustained as a
result of this unilateral action, together with interest, as
provided in the Board's Decision.
(c) Insofar as it may be determined upon compliance
proceedings that said unit employees also sustained losses
as a result of Respondent's unilateral changes in comput-
ing vacation benefits and payments to annuity accounts,
the above provisions directing restoration of the stauni
quo ante and a make whole remedy shall also be applied
to this additional unilateral action, as provided in the
Board's Decision.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Post at its facilities in Bay City, Michigan, copies
of the attached notice marked "Appendix."6 Copies of
said notice, on forms provided by the Regional Director
for Region 7, after being duly signed by Respondent's
representative, shall be posted by Respondent immediate-
ly upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director for Region 7, in writ-
ing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
6 In the e\enl that this Order is enforced hby a Judgment of a United
States Curt of Appeals, the ords in the notice reading "Posted by
Order f the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National l.a:lbor Relations Board
1145