Bay Medical Center

BAY MEDICAL CENTER Bay Medical Center, Inc. and Michigan Licensed Practical Nurses Association. Case 7-CA- 13639 August 24, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY Upon a charge filed on January 5, 1977, by Michigan Licensed Practical Nurses Association, herein called the Union, and duly served on Bay Medical Center, Inc., herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 7, issued a complaint on January 17, 1977, against Respon- dent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (I) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge and complaint were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that at all times since 1968, and continuing to date, pursuant to voluntary recognition and a series of collective-bargaining contracts, the latest of which covered the period from March 1, 1974, to February 28, 1977, the Union has been the duly designated majority representative for the purposes of collective bargaining of Respondent's employees at its General Division in an appropriate unit; and that commencing on or about December 18, 1976, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargain- ing representative, although the Union has requested and is requesting it to do so. On January 25, 1977, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. Specifically, Respondent denies that the acts complained of constitute an unfair labor practice, contending there is no legal duty to bargain with the Union because of the inappropriateness of the unit. On February 4, 1977, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on February 23, 1977, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respon- dent did not file a response to the Notice To Show Cause. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the 231 NLRB No. 107 National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment In its answer to the complaint Respondent con- tends that it has no legal duty to bargain with the Union because the unit is no longer appropriate in view of the health care amendments to the National Labor Relations Act. Respondent contends that a unit consisting solely of licensed practical nurses is inappropriate and that the appropriate unit should include all technical employees at the General Division as well as the Mercy Division of Bay Medical Center, Inc. The General Counsel submits, in effect, that Respondent, in its answer, is attempt- ing to test the validity of the Regional Director's certification in Case 7-RC-13740 and is also seeking a review of the Board's decision in Bay Medical Center, Inc., 218 NLRB 620 (1975), dealing with the appropriateness of bargaining units, through the medium of the instant unfair labor practice proceed- ing. The General Counsel further submits that there are no disputes with respect to any relevant or material facts which would warrant a hearing in this proceeding. We agree. Our review of the record herein reveals that, at all times since 1968, and continuous to date, pursuant to voluntary recognition and a series of collective- bargaining contracts, the latest of which covered the period from March 1, 1974, to February 28, 1977, the Union has been the duly designated collective- bargaining representative for the unit of all full-time and regular part-time licensed practical nurses (LPNs) and graduate practical nurses employed by Respondent at its General Division. Following a request by the Union on or about December 3, 1976, that Respondent bargain with it in respect to rates of pay, wages, hours, and other terms and conditions of employment, on or about December 18, 1976, Respondent admittedly refused to recognize or bargain with the Union. In Bay Medical Center, Inc., supra, the Board concluded that it would be improper to include LPNs in the above-described unit at the General Division in a single unit of technical employees employed by Respondent at its Mercy and General Divisions because of the prior bargaining history. In addition, the Board concluded that it would also be improper to include LPNs employed at Respondent's Mercy Division, who at the time were unrepresented, in the same single unit of technical employees. Subsequently, the LPNs at the Mercy Division designated the Union as their bargaining representa- 607 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tive pursuant to a Decision and Direction of Election in Case 7-RC-13740.1 It is well settled that in the absence of newly discovered or previously unavailable evidence or special circumstances a respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to relitigate issues which were or could have been litigated in a prior representation proceeding. 2 All issues raised by Respondent in this proceeding were or could have been litigated in the prior representation proceedings, and Respondent does not offer to adduce at a hearing any newly discov- ered or previously unavailable evidence, nor does it allege that any special circumstances exist herein which would require the Board to reexamine the decision made in the prior representation proceed- ings. We therefore find that Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. We shall, accord- ingly, grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent, a Michigan corporation, is engaged in providing health care at its two hospitals, Mercy Division and General Division, which are located in Bay City, Michigan. During the year ending Decem- ber 31, 1975, which period is representative of its operations during all times material hereto, Respon- dent, in the course and conduct of its business operations, received gross revenues in excess of $500,000, and during that same period of time Respondent purchased in excess of $20,000 in goods and supplies from concerns located outside the State of Michigan, and said goods and supplies were transported and delivered to its place of business in Bay City, Michigan, directly from points located outside the State of Michigan. We find, on the basis of the foregoing, that Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. I The Regional Director issued his Decision and Direction of Election in this case on August 27, 1976, and thereafter Respondent filed a request for review which was denied by the Board on September 22, 1976, because it failed to raise any substantial issues warranting review. The Regional Director certified the Union on October 5, 1976. II. THE LABOR ORGANIZATION INVOLVED Michigan Licensed Practical Nurses Association is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of Respondent constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All full-time and regular part-time licensed practical nurses and graduate practical nurses employed by Bay Medical Center, Inc., in its General Division at Bay City, Michigan; exclud- ing other technical employees, registered nurses, nurses aides, ward clerks, guards and supervisors as defined in the Act and all other employees. 2. The recognition At all times since 1968, and continuous to date, pursuant to voluntary recognition and a series of collective-bargaining contracts, the latest of which covered the period from March 1, 1974, to February 28, 1977, the Union has been the duly designated representative for the purposes of collective bargain- ing of the employees of Respondent in said unit and the Union continues to be such exclusive representa- tive within the meaning of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about December 3, 1976, and at all times thereafter, the Union has requested Respondent to bargain collectively with it as the exclusive collective-bargaining representative of all the employees in the above-described unit. Com- mencing on or about December 18, 1976, and continuing at all times thereafter to date, Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive representa- tive for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since December 18, 1976, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit, and that, by such refusal, Respon- 2 See Pittsburgh Plate Glass Co. v. N.LR.B., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Secs. 102.67(0) and 102.69(c). 608 BAY MEDICAL CENTER dent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section Ill, above, occurring in connection with its opera- tions described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of com- merce. V. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (I) of the Act, we shall order that it cease and desist therefrom, and, upon request, bargain collectively with the Union as the exclusive representative of all employees in the appropriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Bay Medical Center, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Michigan Licensed Practical Nurses Associa- tion is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time licensed practical nurses and graduate practical nurses em- ployed by Bay Medical Center, Inc., in its General Division at Bay City, Michigan; excluding other technical employees, registered nurses, nurses aides, ward clerks. guards and supervisors as defined in the Act and all other employees, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since 1968 the above-named labor organiza- tion has been and now is the duly recognized and exclusive representative of all employees in the aforesaid appropriate unit for the purpose of collec- tive bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about December 18, 1976, and at all times thereafter, to bargain collectively with the above-named labor organization as the : In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice readfng "Posted by Order exclusive bargaining representative of all the employ- ees of Respondent in the appropriate unit, Respon- dent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain, Respon- dent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employ- ees in the exercise of the rights guaranteed to them in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(l) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Bay Medical Center, Inc., Bay City, Michigan, its officers, agents, successors, and assigns, shall: 1. Cease and desist ;rom: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Michigan Licensed Practical Nurses Association as the exclusive bar- gaining representative of its employees in the following appropriate unit: All full-time and regular part-time licensed practical nurses and graduate practical nurses employed by Bay Medical Center, Inc., in its General Division at Bay City, Michigan; exclud- ing other technical employees, registered nurses, nurses aides, ward clerks, guards and supervisors as defined in the Act and all other employees. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain with the above-named labor organization as the exclusive representative of all employees in the aforesaid appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an under- standing is reached, embody such understanding in a signed agreement. (b) Post at its facility at Bay City, Michigan, copies of the attached notice marked "Appendix." 3 Copies of said notice, on forms provided by the Regional Director for Region 7, after being duly signed by of the National Labor Relations Board" shall read "Posted Pursuant to a (Continued) 609 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereaf- ter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 7, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. CHAIRMAN FANNING, dissenting: I disagree with the finding of my colleagues that the licensed practical nurses employed by Respon- dent at its General Division constitute an appropri- ate unit; accordingly, I would not find that Respon- dent violated Sections 8(a)(5) and (1) of the Act by refusing to bargain with the Union as the exclusive representative of such unit. A brief recapitulation of the history of this case is helpful: As stated by the majority, in Bay Medical Center, Inc., 218 NLRB 620 (1975), due to the high degree of integration between the two divisions, the Board found appropriate a single unit of all technical employees employed at both the Mercy and General Divisions. However, the General Division LPNs were not included in the technical unit because they were currently represented by the Union and the Board sought to avoid upsetting the stability inherent in that bargaining relationship. Nor were the unre- presented Mercy Division LPNs included in the technical unit because such a finding would have fractionalized the representation of the LPNs em- ployed by Respondent. Subsequently, the Union petitioned to represent the Mercy Division LPNs and won the election directed by the Regional Director to determine whether the employees in the Mercy Division voting group wished to be included in the existing unit of LPNs currently represented by the Union. Thereaf- ter, the Regional Director issued a Certification of Representative which certified that "the Union may bargain for the employees in the above category [Mercy Division LPNs] as part of the group it currently represents. " Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 4 Although the record, in my opinion, is unclear as to whether the Union requested that Respondent bargain over each division individually or the two divisions together, it is clear that the complaint describes the appropriate units as limited to each division and alleges that Respondent violated the Act by refusing to bargain with the Union concerning the separate divisions. Under these circumstances, I am unwilling to infer that Respondent refused to bargain with the Union as representative of the overall unit. In view of the foregoing, it appears indisputable that the unit found appropriate included LPNs at both divisions. However, on November 24, 1976, the Union requested that Respondent bargain concern- ing the Mercy Division LPNs and on December 3, 1976, requested Respondent bargain concerning the General Division LPNs. After Respondent refused, the General Counsel issued the two complaints alleging that Respondent unlawfully failed to bargain over the two "appropriate" units. My colleagues would grant the Motion for Summa- ry Judgment and find Respondent violated Section 8(a)(5) of the Act by refusing to bargain with the Union as representative of the employees in the separate unit-Mercy Division LPNs and General Division LPNs. However, neither the Regional Director nor the Board has, at any time herein, found such units appropriate. Instead, in my opinion, the two divisions of LPNs comprise an appropriate unit only when they are combined into a single unit. In finding the violation, my colleagues appear to overlook our finding in Bay Medical Center, supra, that a single group of technical employees at both divisions is appropriate as well as the inconsistency between the complaints (which allege that each LPN division is appropriate) and the earlier certification by the Regional Director (that the Union may bargain for the LPNs at the Mercy Division "as part of the group of employees it currently represents"). The Regional Director did not find that the LPNs at the Mercy Division constitute an appropriate unit; he merely directed an election in the voting group at the Mercy Division giving those voters an opportuni- ty to determine whether they wished to be included in the existing unit of LPNs, represented, at that time, by the Union at the General Division. It is the determination of a "voting group" vis-a-vis an "appropriate unit" that my colleagues have miscon- strued. Had the complaints alleged or had the record clearly demonstrated 4 that the Union requested that Respondent bargain collectively with it as represen- tative of the LPNs employed at the Mercy and General Divisions (i.e., one unit) and had Respon- dent refused on the ground such unit was inappropri- ate, I would not hesitate to find that Respondent's refusal violated Section 8(a)(5) and (1) of the Act. However, since the complaint alleges that the Union requested that Respondent recognize it as the representative of what I consider to be two inappro- priate units, I would not find that Respondent's refusal was unlawful. 610 BAY MEDICAL CENTER APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Michi- gan Licensed Practical Nurses Association as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, upon request, bargain with the above-named Union, as the exclusive representa- tive of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agree- ment. The bargaining unit is: All full-time and regular part-time li- censed practical nurses and graduate practi- cal nurses employed by Bay Medical Center, Inc., in its General Division at Bay City, Michigan; excluding other technical em- ployees, registered nurses, nurses aides, ward clerks, guards and supervisors as defined in the Act and all other employees. BAY MEDICAL CENTER, INC. 611