Bay Medical Center, Inc.

BAY MEDICAL CENTER, INC. Bay Medical Center, Inc. and Michigan Licensed Practical Nurses Association. Case 7-CA-13575 August 25, 1977 DECISION AND ORDER By CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY Upon a charge filed on December 8, 1976, by Michigan Licensed Practical Nurses Association, herein called the Union, and duly served on Bay Medical Center, Inc., herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 7, issued a complaint on December 29, 1976, 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 (1) 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 on October 5. 1976, following a Board election in Case 7-RC- 13740, the Union was duly certified as the exclusive collective-bargaining representative of Respondent's employees in the unit found appropriate; I and that, commencing on or about November 24, 1976, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining represent- ative, although the Union has requested and is requesting it to do so. On January 13, 1977, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. Specifically, Respondent denied that the unit as certified is an appropriate unit. On January 21, 1977, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on February 9, 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 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 102.69 (g1 of the Board's Rules and Regulations, Series 8, as amended. See LTV Electros.rtemr, Inc, 166 NLRB 938 (1967). enfd. 388 F.2d 683 (C.A. 4. 1968): Golden Age Beverage Co. 167 NLRB 151 (1967), enfd. 415 F.2d 26 ( .A. 5. 19691: ltnertvpe Co. v. Penello, 269 F.Supp. 573 (D.C.Va., 1967): Fr/c'II Corp. 164 NLRB 378 (1967). enfd. 397 F.2d 91 (C.A. 7. 1968): Sec. 9{d) of the NLRA. as amended. 231 NLRB No. 106 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 the Respondent contends the complaint should be dismissed because it has no legal duty to bargain with the Union because the unit for which it was certified is inappropriate. The General Counsel submits, in effect, that the Respondent, in its answer, is attempt- ing to relitigate representation issues which were or could have been litigated in the prior representation proceeding, Case 7-RC-13740, and that there are no disputes with respect to any relevant or material facts which would necessitate a hearing or an Administra- tive Law Judge's Decision. We agree with the General Counsel. Our review of the record herein reveals that, pursuant to a Decision and Direction of Election in Case 7-RC-13740,2 an election was held on Septem- ber 23, 1976, in which a majority of employees in an appropriate unit designated the Union as their collective-bargaining representative. Following a request by the Union, on or about November 24, 1976, that the Respondent bargain with it in respect to rates of pay, wages, hours, and other terms and conditions of employment, the Respondent admit- tedly refused to recognize and bargain with the Union. 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.3 All issues raised by the Respondent in this proceeding were or could have been litigated in the prior representation proceeding, and the Respondent does not offer to adduce at a hearing any newly discovered 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 representation proceeding. We therefore find that the Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. We shall, accordingly, grant the Motion for Summary Judgment. 2 On September 22, 1976, the Board denied the Respondent's request for review of the Regional Director's Decision and Direction of Election on the ground that it raised no substantial issues warranting review. :1 See Pittsburgh Plate Glass Co v. N.LR.B., 313 U.S. 146, 162 (1941): Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c). 647 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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, 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. 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 I. The unit The following employees of the Respondent constitute a unit appropriate for collective-bargain- ing 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 the Employer in its Mercy 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. 2. The certification On September 23, 1976, a majority of the employ- ees of Respondent in said unit, in a secret ballot election conducted under the supervision of the Regional Director for Region 7, designated the Union as their representative for the purpose of collective bargaining with the Respondent. The Union was certified as the collective-bargaining representative of the employees in said unit on October 5, 1976, and the Union continues to be such exclusive representative within the meaning of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about November 24, 1976, and at all times thereafter, the Union has requested the 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 November 24, 1976, and continuing at all times thereafter to date, the Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive representative for collective bargaining of all employees in said unit. Accordingly, we find that the Respondent has, since November 24, 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- 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 III, above, occurring in connection with its opera- tions described in section 1, 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 (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 appropriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. In order to insure that the employees in the appropriate unit will be accorded the services of their selected bargaining agent for the period provided by 648 BAY MEDICAL CENTER INC. 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 (C.A. 5, 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (C.A. 10, 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 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 the Employer in its Mercy 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 September 23, 1976, the above-named labor organization has been and now is the certified 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 November 24, 1976, and at all times thereafter, to bargain collectively with the above-named labor organization as the 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)(1) of the Act. In 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 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 from: (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 the Employer in its Mercy Division 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. (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. " 4 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 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. Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 649 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CHAIRMAN FANNING, dissenting: For the reasons set forth in my dissent in Bay Medical Center, 231 NLRB 607 (1977), I dissent herein from the finding of my colleagues that the LPNs employed by Respondent at its Mercy Divi- sion constitute an appropriate unit and Respondent violated Section 8(a)(5) and (1) of the Act by refusing to bargain with the Union as the exclusive represen- tative of such unit. 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 the Employer in its Mercy Division at Bay City, Michigan; excluding other technical employees, regis- tered nurses, nurses aides, ward clerks, guards and supervisors as defined in the Act, and all other employees. BAY MEDICAL CENTER, INC. 650