Bay Medical Center, Inc.

BAY MEDICAL CENTER, INC. Bay Medical Center, Inc. and Michigan Licensed Practical Nurses' Association.* Cases 7-CA-13575, 7-CA-13639, and 7-CA-14258 December 12, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On March 16, 1978, the Board advised the parties to the summary judgment proceeding in Case 7-CA- 14258, Bay Medical Center, herein called the Re- spondent, and Michigan Licensed Pratical Nurses' Association, herein called the Charging Party or Union, that it had decided, sua sponte, to reconsider its earlier decisions granting the General Counsel's Motions for Summary Judgment in Cases 7-CA- 13575 and 7-CA-13639 reported at 231 NLRB 647 and 607, respectively, which involved the identical parties and related issues, and that after further re- view it would take whatever action therein that it deemed consistent with its action on the Motion for Summary Judgment here pending in Case 7-CA- 14258. 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. Upon the entire record in this case, Case 7-CA- 14258 and Cases 7-CA-13575 and 7-CA-13639, the Board has found it proper to consolidate the three cases for joint decision. In so doing, for reasons more fully explicated infra, we conclude that Cases 7-CA- 13575 and 7-CA-13639 were correctly decided and we hereby affirm the findings and conclusions con- tained therein. The records before us, including that in the repre- sentation proceeding, Case 7-RC- 13740,' reveal that Respondent has been engaged in the business of pro- viding health care at two hospitals, Mercy Division and General Division, located in Bay City, Michigan. On March 19. 1980. the Charging Parts. Respondent, and the Gener;ll Counsel filed an "All-Party Motion To Amend Decision and Order." re- questing that the Board amend its Order, together with the appended notice to employees. to reflect the full and correct name of the exclusive collective- bargaining representative. The Board granted this moution h order dated April 23. 1980. and the Order and notice to employees herein appear a. amended. I Official notice is taken of the record in the representation proceeding. Case 7-RC-13740, as the term "record" is defined in Secs. 102.68 and 102. 6 9(g) of the Board's Rules and Regulations. Series 8. as amended. See LTV Elecrrosrstensm. Inc., 166 NLRB 938 (1967). enfd 388 F. 2d 683 (4th Cir. 1968); Golden Age, Beverage Co., 167 NLRB 151 (19671. enfd. 415 F.2d 26 (5th Cir 1969); Intereipe Co. v. Penello, 269 F.Supp. 573 (D.C.Va., 1967): Follerr Corp.. 164 NLRB 378 11967)., enfd. 397 F 2d 91 (7th Cir 1968): Sec. 9(d) of the NLRA. as amended It appears that recently Respondent has begun to merge the two facilities and to move its operations to a new single facility. Since 1968 there have been a series of collective-bargaining agreements covering the LPN's at Respondent's General Division. the lat- est of which ran from March 1, 1974, to February 28, 1977. In Bay Medical Center, Inc., 218 NLRB 620 (1975) (hereinafter Bay Medical Center). wherein the Board directed an election pursuant to petitions filed by another labor organization seeking to represent various of Respondent's employees including techni- cal employees, the Board concluded, inter alia, that the General Division LPNs represented by the Charging Party should not be included in a single unit of technical employees employed at the Mercy and General Divi;ions because of their separate bar- gaining history. Moreover, the Board also concluded that unrepresented LPNs employed at Mercy Divi- sion should not be included in the single unit of tech- nical employees because their inclusion would frac- tionalize the representation of LPNs employed by Respondent. Subsequently the Charging Party, in Case 7-RC-13740, filed a petition on behalf of the unrepresented LPNs employed at Respondent's Mer- cy Division. The Regional Director directed an Arm- our-Globe type election in a voting group of all full- time and regular part-time licensed practical nurses and graduate practical nurses employed at the Mercy Division to determine whether they wished to be in- cluded in the existing unit of LPNs represented by the Charging Party. The Decision and Direction of Election rejected Respondent's contention that LPNs should be included in a single unit of technical em- ployees on the basis of Bay Medical Center and did not find that the merger of the Mercy Division and General Division and their eventual movement into a single facility would change the correctness of this result. Respondent filed a timely request for review in which it asked the Board to reconsider the Deci- sion and Direction of Election in light of cases decid- ed subsequent to Baly Medical Center and renewed its contention that a single unit of all technical employ- ees including LPNs should be found appropriate. The Board by telegraphic order denied Respondent's request for review as raising no substantial issues warranting review. On September 23, 1976, a majori- ty of employees in the above-described voting group designated the Charging Party as their collective-bar- gaining representative and on October 5, 1976, the Charging Party requested that Respondent enter into negotiations with it in respect to the terms and condi- tions of employment of LPNs employed at the Mercy Division. In Bay Medical Center, Inc., 231 NLRB 647 (1977) (Case 7-CA-13575), hereinafter Bay Medical Center 1, which granted the General Counsel's Mo- 731 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion for Summary Judgment, the Board found that Respondent had refused to bargain with the Charg- ing Party regarding a single unit of LPNs at the Mer- cy Division and thereby violated the Act. On or about December 3, 1976, the Charging Party requested that Respondent bargain with it for the purpose of negotiating amendments to its soon-to- expire collective-bargaining agreement with Respon- dent covering General Division LPNs. In Bay Medi- cal Center, Inc., 231 NLRB 607 (1977) (Case 7-CA- 13639), hereinafter Bay Medical Center II, which granted the General Counsel's Motion for Summary Judgment, the Board found that Respondent had re- fused to bargain with the Charging Party regarding a single unit of LPNs at the General Division and thereby violated the Act. In both Bay Medical Center I and Bay Medical Center 11 the Board concluded that Respondent was essentially attempting to relitigate unit scope issues which were or could have been litigated in the under- lying representation proceedings and that Respon- dent did not offer to adduce at a hearing any newly discovered or previously unavailable evidence, nor allege that any special circumstances existed which would require the Board to reexamine the decisions made in the representation proceedings.2 Our recon- sideration of these cases leads us to conclude that they were correctly decided. The findings therein that LPNs at Mercy Division and LPNs at General Division constituted single appropriate units are con- sistent with the results of Armour-Globe election, but for sake of clarity further discussion is warranted. Thus, although the Armour-Globe election resulted in the inclusion of previously unrepresented LPNs in an existing single unit, our decision in Federal Mogul Corporation, 209 NLRB 343 (1974), indicates that separate bargaining obligations existed at this point in time with respect to the LPNs at the different divi- sions. Accordingly, at the time the results of the elec- tion were certified the "Globed" Mercy Division LPNs could not be deemed to come automatically under the terms of the existing collective-bargaining agreement covering General Division LPNs. For this reason a request to bargain on behalf of Mercy Divi- sion LPNs only was an appropriate request. In refus- ing to recognize or bargain with the Union regarding these employees, Respondent failed to meet its bar- gaining obligation and thus violated the Act. The finding in Case 7-CA-13575 that LPNs at Mercy Di- vision constituted an appropriate unit for the pur- poses of collective bargaining reflects the fact that at the time the request to bargain and the refusal oc- curred the LPNs at Mercy Division constituted the only unit then appropriate for purposes of collective 2Sec Pittsburgh Plate Glass Co v. N.L.R.B. 313 U.S. 146, 162 (1941). Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c)l. bargaining; i.e., our earlier decision tested actions and events in the time frame of circumstances and relations then existing. In Case 7-CA-13639 it appears that after the Charging Party was informed that Respondent would refuse to bargain as to the "Globed" Mercy Division LPNs it still sought to negotiate amend- ments to the soon-to-expire collective-bargaining agreement covering General Division LPNs. By let- ter dated December 18, 1976, Respondent informed the Union that it would refuse to meet and bargain regarding General Division LPNs until the United States Court of Appeals for the Sixth Circuit re- viewed its contention that the only appropriate unit would be an overall unit of technical employees in- cluding LPNs. This, Respondent repudiated its pres- ent and future bargaining obligation as to the Gener- al Division LPNs. Inasmuch as the General Division LPNs constituted the original existing unit with a substantial bargaining history, implicitly found ap- propriate in Bay Medical Center and in Case 7-RC- 13740, the finding that these LPNs constituted an appropriate unit in Case 7-CA-13639 is correct when the operative facts are viewed in their proper time frame. The expiration of the General Division collective- bargaining agreement removed the impediment to bargaining with respect to a single unit of LPNs em- ployed at both of Respondent's divisions. Thus, on June 20, 1977, the Union properly made a request to bargain on behalf of the overall unit of LPNs. Re- spondent thereafter refused to meet and bargain. Thereafter, upon a charge filed on or about July 23, 1977, by the Michigan Licensed Practical Nurses' Association in Case 7-CA-14258 and duly served on Bay Medical Center, Inc., the General Counsel of the National Labor Relations Board, by the Regional Director for Region 7, issued a complaint and notice of hearing on September 2, 1977, against Respon- dent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting com- merce within the meaning of Section 8(a)(5) and (I) and Section 2(6) and (7) of the National Labor Rela- tions Act, as amended. Copies of the charge, com- plaint, and notice of hearing before an Administra- tive Law Judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the com- plaint alleges in substance that commencing on or about July 6, 1977, and at all times thereafter, Re- spondent has refused, and continues to refuse, to bargain with the Union as the exclusive bargaining representative of a unit of licensed practical nurses employed at its Bay City facilities, although the Union has requested it to do so. On September 15, 1977, Respondent filed its answer to the complaint 732 BAY MEDICAL CENTER. INC. admitting in part, and denying in part, the allegations in the complaint and also raised an affirmative de- fense. On September 27, 1977, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on October 11, 1977, the Board issued an order transferring the pro- ceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respondent there- after filed a response to the Notice To Show Cause. Ruling on the Motions for Summary Judgment In its answer to the complaint Respondent con- tends that it has no legal duty to bargain with the Charging Party since the unit described therein is in- appropriate in view of the health care amendments to the National Labor Relations Act and since the alle- gations contained therein are contraiy to prior deci- sions of the National Labor Relations Board. Re- spondent's answer also raises an affirmative defense on the basis of the unit findings in Bay Medical Cen- ter I and Bay Medical Center 11. In its response to the Notice To Show Cause Respondent urges denial of the General Counsel's Motion for Summary Judg- ment since there are disptued factual issues regarding the appropriate unit arising out of Bay Medical Cen- ter I and Bay Medical Center II, which necessitate a hearing and because significant changes have oc- curred in Respondent's operation which have a di- rect bearing on the unit issue. Respondent requests in the alternative that any action upon the motion in Case 7-CA-14258 should be held in abeyance until the United States Court of Appeals for the Sixth Cir- cuit has ruled upon a related decision reported at 224 NLRB 69 (1976).3 In his Motion for Summary Judg- ment the General Counsel contends that Respondent is seeking to relitigate representation issues which were or could have been litigated in Case 7-RC- 13740 and is also seeking review of the Board's deci- sion in Bay Medical Center. The General Counsel further contends that Respondent is not averring newly discovered or previously unavailable evidence nor circumstances which were not previously consid- ered by the Board, and that there are no disputes with respect to any relevant or material facts which would necessitate a hearing or an Administrative Law Judge's decision. We agree. Respondent's contention that a unit of LPNs. as opposed to an overall unit of technical employees, is 3Bay Medical Center, Inc. (Case 7 CA-12523). In that summary Judg- ment proceeding the Board found that Respondent violated Sec. 8(aR5) and (I) of the Act by refusing to bargain with another labor organization repre- senting all technical employees, except LPNs employed at Respondent's two divisions. inappropriate in view of the health care amendments to the National Labor Relations Act, which issue was raised in Bay Medical Center I, and in Bay Medical Center 11, and in Respondent's answer to the com- plaint in Case 7 CA-14258 is a clear attempt to test unit issues previously decided in Bay Medical Center and in Case 7-RC-13740. For the reasons set forth supra, contrary to Respondent's contention in its an- swer to the complaint, affirmative defense, and re- sponse to the Notice To Show Cause in Case 7-CA 14258, the unit findings in Bay Medical Center I and Bay Medical Center II do not raise any issues war- ranting dismissal of the complaint in Case 7-CA- 14258 or a hearing before an Administrative Law Judge. Nor does the merger of Mercy and General Divisions and the Transfer of all LPNs to a new single facility, which were questions considered in the earli- er representation proceedings, raise any issues war- ranting a hearing. Furthermore, we find no appropri- ate basis to delay resolution of the cases before us pending the disposition of other cases now before the court of appeals. It is well settled that in the absence of newly dis- covered or previously unavailable evidence or special circumstances a respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to reliti- gate issues which were or could have been litigated in a prior representation proceeding.' With the exception of Respondent's affirmative defense, which we have already determined is with- out merit, all issues raised by the 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 dis- covered or previously unavailable evidence, nor does it allege that any special circumstances exist herein which would require the Board to reexamine the de- cisions made in the representation proceedings. We therefore find that Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. Accordingly, we grant the Mo- tions for Summary Judgment in Case 7-CA-14258 and reaffirm our granting of the Motion for Sum- mary Judgment in Cases 7-CA-13575 and 7-CA- 13639. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT Respondent, a Michigan corporation, at all times material herein, has maintained its principal office and place of business at 1908 Columbus Avenue, Bay 4See fn. 2, supra 733 DECISIONS OF NATIONAL LABOR RELATIONS BOARD City, Michigan. and is, and has been at all times ma- terial herein, engaged in providing health care at its two hospitals, Mercy Division and General Division, which are also located in Bay City, Michigan. During the year ending December 31, 1976, which period is representative of its operations during all times mate- rial hereto, Respondent, in the course and conduct of its business operations, received gross revenues in ex- cess 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 trans- ported 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 Re- spondent 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 juris- diction herein. 11. THE LABOR ORGANIZATION INVOLVED Michigan Licensed Practical Nurses' Association is a labor organization within the meaning of Section 2(5) of the Act. 111. 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 prac- tical nurses and graduate practical nurses em- ployed by the Employer at its Bay City, Michi- gan, installations, excluding other technical employees, registered nurses, nurses aides, ward clerks, guards and supervisors as defined in the Act, and all other employees. 2. The recognition and certification At all times since 1968 and continuing to date, pursuant to voluntary recognition and a series of col- lective-bargaining agreements, 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 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 represen- tative 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 grad- uate practical nurses employed at Respondent's Mer- cy Division, pursuant to an Armour-Globe type se- cret-ballot election conducted under the supervision of the Regional Director for Region 7, designated the Union as their representative for the purpose of col- lective bargaining with Respondent. On or about Oc- tober 5, 1976, the Regional Director for Region 7 issued a Certification of Results of Election in Case 7-RC-13740, wherein the Union was certified to bar- gain 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-described unit within the meaning of Section 9(a) of the Act. B. The Request To Bargain and Respondent s Refusal 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, 1977,5 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 bargain with the Union as the exclusive representative for collective bargaining of all employees in said unit. Accord- ingly, we find that Respondent has, since July 6, 1977, and at all times thereafter, refused to bargain collectively with the Union as the exclusive represen- tative of the employees in the appropriate unit, and The dates in this section refer to the date Michigan Licensed Practical Nurses' Association requested that Respondent bargain as to the overall unit of LPNs and the date Respondent refused to bargain with the Union regarding this same unit. Thus, while we are mindful of the finding of refus- als to bargain at earlier dates in Bay Medical Center I and Bay Medical Center II1 and the fact that the complaint in Case 7-CA-14258 alleges that the Union has, at all times since September 23. 1976. been the exclusive bargaining representative of the LPNs in the overall uneit, we date the find- ing of an unlawful refusal in Case 7-CA-14258 from July 6, 1977. We determined in Bay Medical Center I and Bay Medical Center 11 that Respon- dent unlawfully refused to bargain as tc separate appropnate units of LPNs at Respondent's two facilities. We have reaffirmed the findings and conclu- sions in those cases, particularly as the events therein are viewed in the proper time frame of circumstances and relations then existing, as more fully discussed supra. In view of changed circumstances, we presently find a subsequent unlawful refusal to bargain as to the single overall unit of LPNs dating from July 6, 1977. Moreover, as discussed in fn. 6, infra, while we reaffirm the findings and conclusions in Bay Medical Center I and Bay Medical Center 11, we have also determined that the order remedying the violations in Case 7-CA-14258 will adequately remedy the violations found in those cases as well. 734 BAY MEDICAL CENTER, INC. by such refusal Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (I) of the Act. IV THE EFFECT OF THE UNFAIR LABOR PR('I'I('ES L PON COMMERCE The activities of Respondent, set forth in section 111, above, occurring in connection with the opera- tions described in section 1, above, have a close, inti- mate, 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 commerce. V. THE REMEDY Having found that 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. 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 ap- propriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. In order to insure that the employees in the appro- priate unit will be accorded the services of their se- lected bargaining agent for the period provided by law, we shall construe the initial period of certifica- tion as beginning on the date Respondent commenc- es to bargain in good faith with the Union as the recognized bargaining representative in the appropri- ate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785 (1962); Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817; Burnett Construction Company) 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). 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 en- gaged 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 the Employer at its Bay City, Michigan, installations, 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 pur- poses of collective bargaining within the meaning of Section 9(b) of the Act. 4. The above-named labor organization is the ex- clusive representative of all employees in the afore- said appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. In addition to the findings in lases 7 CA-13575 and 7-CA- 13639. we find that by refusing on or about Jul, 6. 1977, and at all times thereafter, to bargain collectively with the above-named labor or- ganization as the exclusixe bargaining representative of all the employees of Respondent in the appropri- ate unit. Resondent has engaged in and is engaging in unfair labor practices within the meaning of Sec- tion 8(a)(5) of the Act. By the aforesaid refusal to bargain, Respondent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees 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 mean- ing of Section 8(a)(1) 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 6 Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent. Bay Medical Center, Inc., Bay City. Michigan. its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay. wages, and other terms and conditions of employment with Bay Medical Center LPN Coun- cil, affiliated with Michigan Licensed Practical Nurs- es' Association, as the exclusive bargaining represen- tative of its employees in the following appropriate unit: 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 employees, registered nurses, nurses aides, ward clerks, guards and supervisors as defined in the Act, and all other employees. Since this Order and the ensuing notice will adequately remedy the violations of the Act found in Bay Medical Center I and Bay Medical (enter 11. it would serve no useful purpose to require Respondent to abide by terms oi three separate orders and post three separate notices. Accordingly. al- though we have reaffirmed our findings and conclusions in Bay Medical Center I and Bay Medical Center II. we have vacated the orders therein and we will require Respondent to comply only with the Order set forth herein. 735 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (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 installations at Bay City, Michigan, copies of the attached notice marked "Appendix." 7 Copies of said notice, on forms provided by the Re- gional Director for Region 7, after being duly signed by 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. Rea- sonable 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, concurring in part: In Bay Medical Center, Inc., 218 NLRB 620 (1965), the Board found appropriate a single overall unit of technical employees at both of the Employer's Mercy and General Divisions. Based on the then existing functional integration, and the planned merger of both facilities into one new single hospital, the Board rejected the petitioner's contention that separate technical units were appropriate. The LPNs at the General Division, however, had an established bar- gaining history, and were then covered by a collec- tive-bargaining agreement. Although LPNs are usu- ally included in technical employee units in hospitals, the Board concluded that it would not include the General Division LPNs, so as not to upset the ex- isting bargaining relationship. The Board likewise concluded that it would not be proper to include the Mercy Division LPNs in the overall technical unit, because that would have the "anomalous effect of fractionalizing" the LPNs. Subsequently, in Case 7-RC-13740, the Charging Party won an Armour-Globe type election in the vot- 7In the event that 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 National Labor Relations Board" shall read "Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." ing group of Mercy Division LPNs, and the Regional Director accordingly issued a Certification of Re- sults, affirming that the Union was entitled to bar- gain for the Mercy Division LPNs as part of the LPN unit which it already represented. In 231 NLRB 647 and 607, my colleagues conclud- ed that the Mercy and General Division LPNs con- stituted two separate appropriate units, and that Re- spondent unlawfully refused to bargain with the Union for those separate units. I dissented. In the instant case, Case 7-CA-14258, the General Counsel issued a third complaint and subsequent Motion for Summary Judgment; this time alleging, based on the same Certification of Results, that the overall group composed of the LPNs at both divi- sions is the appropriate unit. Respondent asserted in defense, inter alia, that the complaint's allegations are contrary to allegations in the prior complaints, as well as the Board's prior decisions, and constitute an improper attempt by the General Counsel to reliti- gate the same issues. Thereafter, the records in 231 NLRB 647 and 607 were withdrawn with approval from the Court of Appeals for the Sixth Circuit, and the parties were notified that the Board would sua sponte reconsider those decisions in a manner deemed consistent with its action in the Motion for Summary Judgment in Case 7-CA-14258. My colleagues would now reaffirm, as "correctly decided," their holdings and conclusions in the two prior summary judgment cases, while at the same time granting the General Counsel's Motion for Summary Judgment in the instant case. In my view, however, they cannot do both-for affirmance of those prior cases is neither logically nor legally con- sistent with granting the Motion for Summary Judg- ment in Case 7-CA-14258. Counsel for the General Counsel herein avers that, although "mindful of the Board's previous findings," he is nevertheless filing the motion in the instant case, because of the "somewhat confusing state of affairs surrounding Respondent's bargaining obliga- tions." I submit that any "confusion" is easily re- solved-by not only vacating but also reversing the prior summary judgment cases-but the majority's actions here only compound the problem. The findings of separate LPN units in 231 NLRB 647 and 607 does not appear in accord with the facts or the Board's rationale in Bay Medical Center, supra. First, my colleagues' desire to avoid fractionalizing the LPNs hardly seems to be furthered by subse- quently "fractionalizing" them by splitting them into two separate units. Indeed, had my colleagues in- tended to divide the LPNs, it would seem easier to have included the then unrepresented Mercy LPNs with the other technical employees-but they did not 736 BAY MEDICAL CENTER, INC. do so. Second, to split the LPNs into two divisional units does not appear consistent with the Board's finding separate divisional units not appropriate for technical employees. Third, as noted above, the Cer- tification of Results issued after the Armour Globe election stated that the Union was entitled to bargain for the Mercy LPNs as part of the unit it already represented. But to say that is not to say that the Mercy division LPNs constituted a separate unit. In- deed, had the latter been the Board's intent, it would have issued a certification of representative in such unit-but it did not do so. For the above reasons, and those in my dissents in 231 NLRB 647 and 607, I would reverse and vacate those decisions, as incor- rectly decided, and then proceed to consideration of the Motion for Summary Judgment in Case 7-CA- 14258. But there is a further, and in my view a more seri- ous, consequence of my colleagues' affirmance of the prior decisions. The complaint in Case 7-CA-14258 alleges that the appropriate unit includes all the LPNs of both the Mercy and General Divisions, and that the Union has been the exclusive representative of the employees in that unit at all times since Sep- tember 23, 1976. 8 That allegation is of course cont- rary to the allegations and the Board's findings in the prior cases, that the Union, by virtue of the same Certification of Results has been the representative of the same time period in two other different units. If the allegations in the instant complaint and Motion for Summary Judgment are correct, then the con- trary findings in the prior cases must be incorrect, and in my view cannot be affirmed.9 Further, to the extent that the unit findings in the prior cases are s The complaint also states that on October 5. 1976. the Charging Party was certified by the Regional DIrector as the exclusive bargaining represen- tative of the employees in the overall LPN unit. Further, the majonty's reliance on Federal Mogul Corp., supra, to sup- port its inconsistent unit findings is in my view a misapprehension of that decision. The Board's discussion in that case of "bargaining obligations" versus unilateral application of the terms of an existing contract to Globed employees was explicit/s cast in terms of bargaining for (vis-a.vis) the newly added employees as part of the existing unit not separate units. Thus, in my view. Federal Mogul itself is persuasive that my colleagues' unit findings in 231 NLRB 647 and 607 were not correct. 10 In fn. 5. supra, my colleagues allude to "changed circumstances" to support reaching a result here which Is contrary to their findings in the pnor cases, which they also reaffirm. But, as conceded by the General Counsel and demonstrated by the complaint and Motion for Summary Judgment herein, the unit circumstances. and the legal consequences thereof, have not changed. affirmed, the allegations of the instant complaint- which are facially inconsistent with those findings-- are afortiori defective; and the Motion for Summary Judgment in Case 7-CA-14258 would have to be de- nied as a matter of law. Thus, I submit that the "con- fusing" state of affairs, acknowledged by the General Counsel, is here compounded by my colleagues."° Accordingly, for the reasons set forth above, I would reverse and vacate the Decision and Order in Bay Medical Center I and the Decision and Order in Bay Medical Center 11 and grant the Motion for Summary Judgment in the instant proceeding (Case 7-CA- 14258). APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WIL.L NOT refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Bay Medical Center LPN Council. affiliated with Michigan Licensed Practical Nurses' Associa- tion, as the exclusive representative of the em- ployees 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 represen- tative of all employees in the bargaining unit de- scribed below, with respect to rates of pay, wag- es, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The 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 tech- nical employees, registered nurses, nurses aides, ward clerks, guards and supervisors as defined in the Act, and all other employees. BAY MEDIC(AI. CENTER. INC 737