Metro Medical Group

National Labor Relations Board - Board Decisions

Feb 21, 1992

306 N.L.R.B. 373 (N.L.R.B. 1992)

373
306 NLRB No. 70
METRO MEDICAL GROUP
1 The judge stated that employee witness Claudia Drohomirecki
testified that she spent 90 to 95 percent of her time filling prescrip-
tions after she was reclassified as a senior pharmacy specialist. The
Respondent correctly notes in exceptions that this testimony referred
to Drohomirecki’s work at only one of its two facilities.
Drohomirecki estimated that she spent 70 to 75 percent of her time
filling prescriptions when working at the other facility. This factual
correction does not affect the analysis of the unfair labor practice
issues presented.
2 The judge’s recommended make-whole remedy is modified so
that backpay shall be computed as prescribed in Ogle Protection
Service, 183 NLRB 682 (1970), with interest to be computed in the
manner prescribed in New Horizons for the Retarded, 283 NLRB
1173 (1987).
Metro Medical Group and Local 3082, American
Federation of State, County and Municipal
Employees, AFL–CIO. Case 7–CA–31064
February 21, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On December 4, 1991, Administrative Law Judge
Hubert E. Lott issued the attached decision. The Re-
spondent filed exceptions and a supporting brief. The
General Counsel filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions, to modify the recommended remedy,2 and to
adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Metro Medical Group, De-
troit, Michigan, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order.
Allen B. Rosenthal, Esq., for the General Counsel.
Stanley C. Moore III, Esq., of Troy, Michigan, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
HUBERT E. LOTT, Administrative Law Judge. This case
was tried in Detroit, Michigan, on May 7, 1991. The charge
was filed on October 1, 1990, and the complaint was issued
November 14, 1990.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel and the Respondent, I make the
following
FINDINGS OF FACT
I. JURISDICTION
The Company is a Michigan corporation, having a place
of business in Detroit, Michigan, and several facilities lo-
cated within the State of Michigan, where it is engaged in
the operation of medical clinics. During the year ending De-
cember 31, 1989, a representative period, Respondent, in the
course and conduct of its business operations, derived gross
revenues in excess of $250,000. During the same period, Re-
spondent purchased and received directly from points located
outside the State of Michigan goods and materials valued in
excess of $5000.
Respondent admits, and I find, that it is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act. Respondent further admits, and I find,
that the Union is a labor organization within the meaning of
Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
In April 1981, the Charging Party (AFSCME, Local 3082)
was certified to represent a unit of:
All laboratory and X-ray technicians/technologists reg-
istered and non-registered, histologists, radioisotope
technologists, laboratory assistants, pharmacy techni-
cians and inhalation therapy technicians, employed by
the Employer at its 1800 Tuxedo, Detroit; 4401 Conner,
Detroit; 7701 Wyoming, Dearborn; 6550 Allen Road,
Allen Park; and 28303 Joy Road, Westland, Michigan,
facilities, who regularly work twenty (20) hours per
week or more; but excluding department heads, assist-
ant department heads, health center managers, all pro-
fessional employees (including medical technologists
A.S.C.P. registration, employees with advanced degrees
(master’s degree or better) in biology, microbiology and
chemistry), all temporary employees, vacation replace-
ment employees, guards and supervisors as defined in
the Act, and all other employees.
Thereafter, AFSCME, Local 3082 and Respondent entered
into a series of collective-bargaining agreements, the latest
having a term from October 8, 1989, to October 8, 1992, and
a recognition clause for:
All laboratory and X-ray technicians/technologists reg-
istered and registry eligible, histologists, radioisotope
technologists, jr. technicians, pharmacy technicians and
inhalation therapy technicians hereinafter referred to as
technicians-technologists hired on or before September
1, 1989, who regularly work twenty (20) hours per
week or more, excluding all other employees listed in
the collective-bargaining agreement.
Negotiations for the current agreement began in September
1989 and concluded in June 1990 and the agreement was ex-
ecuted on October 10, 1990, retroactive to October 8, 1989.
The previous agreement was in effect during negotiations
and the recognition clause contained pharmacy technicians.
Prior to October 15, 1990, Respondent’s pharmacy depart-
ment included pharmacy technicians represented by
AFSCME, Local 3082 and cashier, clerk typist, storeroom
374 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
clerk, and pharmacy aide classifications represented by Local
600 UAW. There were two full-time pharmacy technicians
and an unfilled part-time position.
The pharmacy department was beset with problems over
crossing work jurisdictional lines. This in turn caused bick-
ering between the two unions.
In 1989, Director of Labor Relations Delbert Davis met
with Pamela Hyde, president of AFSCME, and Lois Feeney,
president of UAW, Local 600, and told them that he would
look into the possibility of reorganizing the pharmacy depart-
ment. In October, Hyde testified that he told the parties that
he might reorganize that department and AFSCME might
lose two positions. In December he told the parties that he
might reorganize that department and that, ‘‘either unit might
lose positions.’’
At a meeting in September 1990, Davis informed Hyde
that job classifications in the pharmacy department would be
reduced to two classifications. A pharmacy aide classification
would encompass the former job duties of the cashier, clerk
typist, storeroom clerk, and pharmacy aide. The pharmacy
technician classification would be changed to senior phar-
macy specialist. Davis further advised Hyde that both classi-
fications would be in the UAW unit. Hyde protested that the
pharmacy technician classification was part of her unit and
he could not just arbitrarily take it away and give it to the
UAW. Davis said that he had that right under the manage-
ment-rights clause in the contract.
On October 1, 1990, Davis again met with Hyde and reit-
erated what he said in September and further stated that
based on the management-rights clause in the contract he
was formally advising her that as of October 15, 1990, the
pharmacy technicians were being removed from the
AFSCME unit and included in the UAW unit as senior phar-
macy specialist. Hyde protested asserting that this was a bar-
gaining issue and on October 2, 1990, she filed a grievance
over the removal of the pharmacy technicians from the bar-
gaining unit.
Hyde testified that the job duties of the pharmacy techni-
cian were the same of those of the senior pharmacy specialist
with the exception of taking money from customers which
the latter could do after reorganization.
Claudia Drohomirecki is senior pharmacy specialist, a
member of the negotiating committee and a former pharmacy
technician who was informed on October 10, 1990, by Davis
that she would be moved from the AFSCME unit on October
15, 1990, and included in the UAW unit. She testified that
her job duties remained the same except, that after the move
she could take money from customers in payment for pre-
scriptions. She further testified that in both jobs she spent 90
to 95 percent of her time filling prescriptions.
The undisputed evidence indicates that neither party re-
quested negotiations over the reorganization and or removal
of the pharmacy technician from the unit, nor was the subject
ever raised during contract negotiations.
Analysis and Conclusions
Respondent asserts two defenses in support of its action in
removing a classification from the certified unit. First, it ar-
gues that it has the contractual right to remove the classifica-
tion by virtue of a management-rights clause, article 4, sec-
tion A, which reads:
The Metro Medical Group management shall have
the full and exclusive right to manage and operate its
facilities, all operations and activities including, but not
limited to the direction and scheduling of its working
force, of employees the right to . . . discontinue and
reorganize any department.
Article 4, section C, provides:
Management agrees to discuss with the Union the
discontinuance or reorganization of any department in
which union employees are employed before such ac-
tion takes place.
Second, Respondent argues that the Charging Party waived
its right to object to the elimination of the classification by
its failure to seek negotiations after being informed of the re-
organization plans by the employer.
It should be noted at the outset that there is no assertion
that the elimination of the classification involved change in
duties which are dissimilar from those duties of employees
of the unit, because the evidence does not support such as-
sertion.
After reviewing the management-rights clause in the con-
tract, I can find nothing that supports Respondent’s argument
that it had a unilateral right to alter the bargaining unit. In
fact, the management-rights clause does not address that
issue. The clause merely gives Respondent the right to dis-
continue and reorganize the departments. That is not at issue.
Respondent’s waiver argument is also unpersuasive. Re-
spondent claims the Charging Party waived its right to bar-
gain over the elimination of the classification from the unit.
However, it takes more than bargaining to change the scope
of the unit. It takes mutual agreement or Board action. Ari-
zona Electric Power, 250 NLRB 1132 (1980), Carolina Tele-
phone & Telegraph Co., 258 NLRB 1387 (1981). The Union
certainly never agreed to the change. In fact, the Charging
Party objected every time the subject was raised and finally
filed a grievance over Respondent’s unilateral action.
The Union never clearly and unambiguously waived its
right to bargain over the change. There is merit to the Gen-
eral Counsel’s argument that when the issue of bargaining
arose, Respondent asserted its right under the management-
rights clause to make a unilateral change. This effectively
precluded any meaningful bargaining.
Accordingly, I find that Respondent, by removing phar-
macy technicians and/or senior pharmacy specialists from the
unit on October 15, 1990, withdrew recognition from and re-
fused to bargain with the Union as the representative of em-
ployees in the unit for which the Charging Party is the exclu-
sive bargaining representative, in violation of Section 8(a)(5)
and (1) of the Act.
CONCLUSIONS OF LAW
1. Metro Medical Group is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
2. Local 3082, American Federation of State, County and
Municipal employees, AFL–CIO is a labor organization with-
in the meaning of Section 2(5) of the Act.
3. All laboratory and X-ray technicians/technologists reg-
istered and registry eligible, histologists, radioisotope tech-
nologists, jr. technicians, pharmacy technicians and inhalation
therapy technicians, hereinafter referred to as technicians/-
375METRO MEDICAL GROUP
1 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
2 If 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
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
technologists hired on or before September 1, 1989, who reg-
ularly work 20 hours per week or more, excluding all other
employees listed in the current collective-bargaining agree-
ment is the unit for which the aforesaid union is the exclu-
sive bargaining representative.
4. Pharmacy technicians and/or senior pharmacy specialists
are a part of the aforesaid unit.
5. By removing pharmacy technicians and/or senior phar-
macy specialists from the bargaining unit on October 15,
1990, Respondent withdrew recognition from and refused to
bargain with the aforesaid Union as the exclusive bargaining
representative and thereby engaged in unfair labor practices
within the meaning of Section 8(a)(1) and (5) of the Act.
6. The above unfair labor practice is an unfair labor prac-
tice affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
7. Respondent had committed no other unfair labor prac-
tices.
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
Having found that Respondent, in violation of its duty
under Section 8(a)(5) and (1) of the Act, withdrew recogni-
tion from and refused to bargain with the Union as the rep-
resentative of employees, including pharmacy technicians
and/or senior pharmacy specialists, in the unit for which the
Union is the exclusive bargaining representative, I shall order
it to bargain collectively with the Union by restoring senior
pharmacy specialists to the unit and by applying terms of the
collective-bargaining agreement to them. Additionally, I shall
order Respondent to make senior pharmacy specialists whole
for any loss of pay, benefits, or other rights and privileges
they may have suffered as a result of Respondent’s unfair
labor practices. Backpay, if any, shall be computed with in-
terest as prescribed in Florida Steel Corp., 231 NLRB 651
(1977).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended1
ORDER
The Respondent, Metro Medical Group of Detroit, Michi-
gan, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Withdrawing recognition and refusing to bargain with
Local 3082, American Federation of State, County and Mu-
nicipal Employees, AFL–CIO as the representative of em-
ployees in the following unit, which includes pharmacy
technicians/senior pharmacy specialists, for which the Union
is the exclusive bargaining representative:
All laboratory and X-ray technicians/technologists
registered and registry eligible, histologists, radioisotope
technologists, jr. technicians, pharmacy technicians
(senior pharmacy specialists) and inhalation therapy
technicians, hereinafter referred to as technician/tech-
nologists hired on or before September 1, 1989, who
regularly work twenty (20) hours per week or more, ex-
cluding all other employees listed in the collective-bar-
gaining agreement.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Bargain collectively with the Union as the exclusive
bargaining representative of employees in the above unit by
restoring the pharmacy technicians and/or senior pharmacy
specialists to the unit and by applying the terms of the col-
lective-bargaining agreement.
(b) Make pharmacy technicians and/or senior pharmacy
specialists whole for any loss of pay, benefits, or other rights
and privileges they may have suffered as a result of Re-
spondent’s unfair labor practices in the manner set forth in
the remedy section of this decision.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its facilities in Detroit, Michigan, copies of the
attached notice marked ‘‘Appendix.’’2 Copies of the notice,
on forms provided by the Regional Director for Region 7,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT refuse to recognize and bargain with Local
3082, American Federation of State, County and Municipal
Employees, AFL–CIO as the exclusive collective-bargaining
representative of our employees in the following appropriate
unit and to honor and apply the current collective-bargaining
agreement with the Union, which is effective until October
8, 1992, and covers the following unit for which the Union
is the exclusive bargaining representative:
376 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
All laboratory technicians/technologists registered
and registry eligible, histologists, radioisotope tech-
nologists, jr. technicians, pharmacy technicians (senior
pharmacy specialists) and inhalation therapy tech-
nologists, hereinafter referred to as technicians/tech-
nologists hired on or before September 1, 1989, who
regularly worked twenty (20) hours per week or more,
excluding all other employees listed in the collective-
bargaining agreement.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL bargain collectively with the Union as the exclu-
sive bargaining representative of employees in the above unit
by restoring the pharmacy technicians (senior pharmacy spe-
cialists) to the unit and by applying the terms of the collec-
tive-bargaining agreement to them.
WE WILL make pharmacy technicians (senior pharmacy
specialists) whole for any loss of pay, benefits, or other
rights and privileges they may have suffered as a result of
our unfair labor practices in the manner set forth in the rem-
edy section of this decision.
METRO MEDICAL GROUP