Bay Medical Center, Inc.

National Labor Relations Board - Board Decisions

Dec 12, 1978

239 N.L.R.B. 731 (N.L.R.B. 1978)

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