Bronson Methodist Hospital

National Labor Relations Board - Board Decisions

Mar 18, 1976

223 N.L.R.B. 95 (N.L.R.B. 1976)

BRONSON METHODIST HOSPITAL 95
Bronson Methodist Hospital and Local Union No. 79,
Service Employees International Union , AFL-CIO.
Case 7-CA-11739
March 18, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS PENELLO
AND WALTHER
tion vote, all in violation of Section 8(a)(1) and (5) of the
National Labor Relations Act, as amended (herein the
Act).
By its duly filed answer, as amended, Bronson Methodist
Hospital (herein the Respondent or Company) admitted
the jurisdictional allegations of the complaint but generally
denied the commission of any unfair labor practices.
Upon the entire record in this case, including my obser-
vation of the demeanor of the witnesses, and after due con-
sideration of the briefs filed by counsel for the General
Counsel and by counsel for the Respondent, I make the
following:
On September 11, 1975, Administrative Law Judge
Robert Cohn issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting brief, and Respondent
filed an answering brief.
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.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is, dis-
missed in its entirety.
DECISION
STATEMENT OF THE CASE
ROBERT COHN, Administrative Law Judge: This matter
was heard at Kalamazoo, Michigan, on May 1, 1975,1 upon
a complaint issued on March 7 (amended April 16), based
on a charge filed January 22. The complaint alleges, in
substance , that at all times since on or about December 10,
1974, the Respondent has failed and refused to execute a
collective-bargaining agreement containing terms previous-
ly agreed upon; and that on or about December 18, 1974,
Respondent sought to undermine the position of the
Charging Party as exclusive bargaining representative of
the employees in an appropriate unit by causing to be pre-
pared and distributed to such employees a letter announc-
ing its dissatisfaction with the number of employees who
had participated in a ratification vote and requesting the
Charging Union to resubmit the matter to a new ratifica-
1 All dates hereinafter refer to the calendar year 1975, unless otherwise
indicated.
FINDINGS OF FACT
I. JURISDICTION
Respondent, a Michigan corporation, has at all times
maintained its principal office and hospital in Kalamazoo,
Michigan, engaged in the furnishing of health care services.
During the calendar year 1974, a representative period,
Respondent, in the course and conduct of its business op-
erations, had gross revenues in excess of $500,000, and
caused to be transported to its Kalamazoo installation
from points located outside the State of Michigan goods
and materials valued in excess of $50,000.
I find, as the Respondent admits, that it is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local Union No. 79 , Service Employees International
Union , AFL-CIO (herein the Union), is an organization in
which employees participate and which exists for the pur-
pose , in whole or in part , of dealing with employers con-
cerning grievances , labor disputes, wages , rates of pay,
hours of employment, or conditions of work . I therefore
find that it is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
On June 15, 1973, the Michigan Employment Relations
Commission, an agency of the State of Michigan, conduct-
ed an election among the nonprofessional employees em-
ployed by the Company for the purpose of ascertaining
whether or not a majority of such employees desired the
Union as its exclusive representative for purposes of collec-
tive bargaining with the Company. On January 4, 1974,
said Commission certified the Union as the exclusive repre-
sentative of all the employees in the appropriate unit .2
2 The complaint alleges, the answer admits, and I find that the following
constitutes an appropriate unit for collective bargaining within the meaning
of Sec. 9(b) of the Act:
All non-professional employees employed at Bronson Methodist Hos-
pital , including regular part-time employees , ward clerks, and unli-
censed technical employees , but excluding professional employees,
Continued
223 NLRB No. 19
96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Commencing on or about March 4, 1974, the parties en-
gaged in collective-bargaining discussions respecting wag-
es, hours of employment , and other terms and conditions
of employment covering the employees in the unit. The
Respondent was represented in these meetings by its attor-
ney, Dombrowski , and its personnel manager, Geer; the
Union's chief spokesman was its staff representative Gill.
Numerous collective -bargaining sessions were held during
the months of March , April, May, and June . On July 2,
1974, the parties met under the auspices of a Federal med-
iator . Prior to that time (in June), the Respondent had
prepared a document entitled "Agreement Proposals"
which contained the essential noneconomic accords which
had been accepted by the parties .; At the July 2 meeting,
the Respondent offered to verify a 5.5-percent increase in
wages, with a promise of a 5-cent -per-hour pay increase to
go into effect in January, 1975, and another 5-cent-per-
hour pay increase to be effective in July 1975. It was un-
derstood that the Union would present this package to its
membership for a ratification vote , and if the membership
accepted such package, the Michigan Employment Rela-
tions Commission would conduct a vote on the union-se-
curity provision of the proposal which was still outstand-
ing. Such ratification vote took place on July 25, 1974, and
the membership rejected the package.
Another negotiating session took place on or about Sep-
tember 23, with no progress being made, and on November
6, 1974, the final meeting between the parties was conduct-
ed under the auspices of the Federal mediator . At that
meeting,' the Union attempted to secure additional bene-
fits, but the Company promised only that the unit employ-
ees would be granted any increases that the nonunit em-
ployees received . In other words, the Respondent
maintained the same position it had established in July
with respect to economic items and the union -security pro-
posal, and only additionally promised the guarantee that
any increases given to the nonunit employees would also
be granted to unit personnel . This, in effect, completed the
negotiating between the parties . However, Gill requested of
the Federal mediator if there was a provision for factfind-
ing under the new law.5 The mediator indicated that he was
not certain , but called Gill the following day and advised
that the mediation service would not appoint a factfinding
panel.
Subsequently, in November, but prior to November 25,
Gill telephoned Attorney Dombrowski to inquire if the
Union had the Respondent 's final offer ; to wit , the guaran-
tee that unit members would be granted any increases Re-
spondent gave to nonunit personnel , in addition to the 10
cents per hour in 1975 which had been bargained for previ-
ously . Dombrowski replied affirmatively. Whereupon, on
technical employees who are licensed, registered or certified , licensed
practical nurses , registered nurses , office clerical employees , chaplains,
guards and supervisors as defined in the Act.
'See G.C. Exh. 7.
4 The parties did not actually meet face to face on November 6; rather,
each party sat in separate rooms at the offices of the mediator and he
shuttled back and forth transferring information and making suggestions.
S The new amendments to the Act which gave the NLRB jurisdiction over
hospitals such as Respondent went into effect August 26, 1974.
November 25, Gill conveyed the foregoing "final offer" to
the Union 's bargaining committee , and asked for instruc-
tions. According to Gill's testimony, "they voted to go to
ratification and recommended to the membership that the
contract be ratified." The ratification vote was held in the
Kalamazoo County Center building on December 10,
1974, and the vote to accept the contract was 79 in favor
and 31 opposed.
On December 11, Gill, not being able to reach Dom-
browski at the latter's office, contacted Personnel Director
Geer at the hospital and advised him that the agreement
had been ratified by the employees. Geer inquired how
many employees were in attendance, to which Gill re-
sponded "roughly 110." Gill advised that he would prepare
for signature the written agreement (which would involve
typing the hospital's proposal utilized the previous July),
and requested Geer to prepare Appendix "A"-the wage
scale which also had been prepared the previous July. Ac-
cording to Gill's testimony, Geer replied that he would.'
Gill talked to Dombrowski by telephone on December 13
and advised him of the ratification. According to Gill's
testimony, Dombrowski asked the same question as Geer,
to wit: how many people had voted. Gill responded 110,
and advised Dombrowski that he (Gill) was preparing the
contract and asked if Dombrowski would prepare the wage
scale to which the latter replied affirmatively.'
On December 18, Gill took the original and three copies
of the proposed contract to the hospital and met with the
chairman of his bargaining committee, a Mr. James Kor-
noelje . Both men signed the proposed agreement 8 and
sought permission to have other members of the committee
sign the document . However, Geer refused, stating that
since it was worktime this would not be proper and sug-
gested that Gill take the document to Dombrowski's office.
Dombrowski was not in his office at that time, and Gill
gave the proposed contract to another attorney in the firm,
Mr. Craig Miller. Gill returned to his office, and was later
telephoned by Miller who advised that "the hospital
seemed dissatisfied with the number of people that had
attended the ratification meeting and that they were asking
[Gill] to conduct another ratification meeting and that they
were not prepared to sign the contract . . . ." Gill advised
Miller that he would not hold another ratification vote.
Miller confirmed by letter his telephone conversation with
Gill on December 18, as follows:
Dear Mr. Gill:
As I indicated to you in our telephone conversation of
December 18, 1974, Bronson Hospital has received a
number of complaints from its employees with regard
to not having received notification of the contract rati-
6 Gill's testimony on this point is uncontradicted.
r Dombrowski was aware that the Union had conducted a ratification
vote in December . He testified that Geer had called him several days before
the ratification election and advised him that there was a rumor that such a
vote would be taken . He further testified that, following such notification
from Geer, he telephoned the Federal mediator to find out what the latter
had told the Union in private sessions on November 6, and that the media-
tor told him that the Union "was going to put down as the hospital 's final
offer 5 cents in January , 5 cents in July plus any excess raises granted to
non-unit employees plus agreed on noneconomics and no-union shop provi-
sion."
8 See G .C. Exh. 6.
BRONSON METHODIST HOSPITAL 97
fication meeting held on the 10th of December.
The Hospital has information to the effect that ap-
proximately 109 of some 700 bargaining unit employ-
ees took part in the ratification vote. The Hospital is
concerned that an issue as important as contract ratifi-
cation have the benefit of consideration of all unit em-
ployees who wish to partake in that decision.
Therefore, the Hospital suggests and requests that Lo-
cal 79 submit the proposed Collective Bargaining
Agreement to another vote supervised by the Michi-
gan Employment Relations Commission. In order to
give all eligible employees an opportunity to vote, the
Hospital will supply Local 79 with a current mailing
list of unit employees, provide a location at the Hospi-
tal for a convenient meeting and voting place, allow
notices to be posted with respect to the vote and re-
quest that the Michigan Employment Relations Com-
mission supervise the voting process.
Your prompt consideration of our request will be
greatly appreciated.
The same date, December 18, 1974, Daniel Finch, ad-
ministrator of the Respondent , mailed a letter to all em-
ployees as follows:
To All Employees:
The Hospital has been contacted by the Union rep-
resentative of Local 79 S.E.I.U. and informed that a
ratification meeting was held Tuesday, December 10,
1974, whereby a majority of the employees in the unit
who attended the meeting voted to accept the
Hospital's last proposal.
That proposal was a guaranteed increase of $.05/
hour in January, 1975, and another $.05/hour in July
of 1975. The Hospital also proposed that employees in
the bargaining unit would receive increases that other
employees outside the bargaining unit would receive
less the amount received by them in January and July.
There would be no union security provision in the
Agreement. This would mean that no present employ-
ees or new hires would be required to join the Union
or pay dues unless they chose to do so.
After receiving the results of the ratification, the
Hospital has had numerous complaints from employ-
ees in the unit stating that they were not notified of the
meeting. The Hospital has been informed that there
were only 109 out of more than 700 eligible who voted.
This is disturbing because it is felt that all the employ-
ees should have had an opportunity to vote.
Therefore, the Hospital has asked the Union to sub-
mit this to another vote and will supply the Union
with a current mailing list and invite them to post on
the bulletin board the notice of time and place. The
Hospital has offered its premises as the place and re-
quested that the State of Michigan Mediation Service
conduct the vote. This will insure that every eligible
employee will have notice of the vote and, of course,
the Hospital urges everyone to vote and will be bound
by the results.
On December 27, 1974, Gill telephoned Dombrowski
and asked whether the hospital was going to sign the con-
tract. Dombrowski replied that he would proofread the
proposed agreement and take it to the board of directors
for signature, and that he would supply Gill with a copy of
the wage scales. Gill confirmed this conversation by letter
the same date as follows:
Dear Mr. Dombrowski:
As per our telephone conversation today, my un-
derstanding is that Administrative personnel of
Bronson Methodist Hospital will be proof reading
the copies of the ratified Union Agreement that I
have supplied, with the intent of recommending to
the Hospital Board that signature be authorized.
In addition to the above understanding, the
Union will also be furnished with a copy of the
agreed current wage scale and future increase provi-
sions for proof reading and signature.
If the above is a true understanding, the Union,
Local 79, will hold in deference filing of the unfair
labor practices charge relating to the Hospital's po-
sition on ratification and signature of the Union
Agreement.
Personnel Director Geer was on vacation the latter part
of December, returning to Kalamazoo on or about January
6. Dombrowski testified that he telephoned Geer on Janu-
ary 8 and asked him if he had a chance to review the pro-
posed agreement which the Union had furnished. Geer re-
plied that he had not, to which Dombrowski said, "Well,
we're getting a little pressure so would you speed it up."
Dombrowski picked up the document from Geer on or
about January 15 and testified that for all "intents and
purposes" it was substantially identical to the hospital's
proposal of the previous July.
A meeting was set up between the parties for January 20.
However, on January 13, a decertification petition was
filed by one James Kostakis (Case 7-RD-1224). Gill was
advised of the filing of such petition on January 17 and
telephoned Dombrowski to check the status of the January
20 meeting. The latter told Gill that because of the filing of
the decertification petition there was no point in having the
meeting because the hospital could not sign the contract?
B. Analysis and Concluding Findings
The pleading and facts raise the following issues for res-
olution: (1) whether Respondent violated Section 8(a)(5)
and (1) of the Act by the issuance to employees of the
"Finch letter" on December 18; and (2) whether or not
there was a complete agreement existing between the par-
ties on and after December 11, which Respondent refused
to execute, in violation of Section 8(a)(5) and (1) of the
Act.
As respects issue no. 1, it appears settled that the ques-
9 The petition in Case 7-RC-1224 was dismissed by the Regional Direc-
tor on February 28 on the ground that the prospective issuance of an 8(a)(1)
and (5 ) complaint against the Respondent in Case 7-CA-11739 precluded
the proper raising of a question concerning representation at that time. No
appeal was taken from that dismissal, and the case was closed . (G.C. Exh.
3.)
98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion of employee ratification is not a mandatory bargaining
subject on which a Respondent may insist to impasse. Hou-
chens Market of Elizabethtown, Inc., 155 NLRB 729, 730
(1965), enfd. 375 F.2d 208 (C.A. 6, 1967); see also North
Country Motors, Ltd., 146 NLRB 671 (1964). The parties
here not having specifically agreed to employee ratification
as a condition precedent to execution of the contract, the
Respondent was not entitled to insist that the Union con-
duct another ratification vote following December 10,
since this was a matter within the prerogative of the Union.
However, a close examination of the "Finch letter" disclos-
es that the Company did not insist on another ratification
vote but merely suggested or requested the Union to submit
the matter to another vote in view of the minority of em-
ployees who voted at the ratification meeting on December
10. The Union declined such request and, consequently,
the Company receded from this position and proceeded to
consider the Union 's proposed agreement looking toward
execution thereof.
Under these circumstances , I find that the Company's
conduct did not rise to "insistance to impasse ," but only
constituted a request or suggestion to the Union which,
upon the latter's declination , Respondent later dropped. In
addition , I note a lack of evidence that the Respondent
initiated the request in a context of bad faith , or with an
intent to delay the bargaining process . Clearly, in view of
the minority of employees who voted on December 10 (ap-
proximately 110 out of a unit of 700), plus instances of
asserted employee dissatisfaction from employees in the
unit, the hospital was legitimately concerned that a majori-
ty of the employees in the unit had not had an opportunity
to pass upon the issue . Under all circumstances , I conclude
and find that there is a lack of substantial evidence to sus-
tain this allegation in the complaint and will therefore rec-
ommend that it be dismissed.
As respects issue no . 2, it is, of course , recognized that
there must be a complete and full agreement by the parties
upon the terms and provisions of the collective -bargaining
agreement before an order may issue requiring the Respon-
dent to execute such agreement . Respondent vigorously ar-
gues that such agreement did not take place in this case,
pointing particularly to the failure of the Union's proposal
to state the duration of the contract and the failure of the
board of trustees of the hospital to ratify the same-all of
which was a condition precedent to reaching full agree-
ment on the part of the Respondent . I cannot agree with
Respondent that as of December 10 , 1974, there was not a
meeting of the minds of the parties as to the substantive
terms of the proposed agreement ; however , I do agree that
all of the conditions precedent to the reaching a full and
complete agreement had not been reached prior to the fil-
ing of the decertification petition , and therefore Respon-
dent was legally entitled to withhold execution of the col-
lective agreement pending resolution of the question
concerning representation which the filing of that petition
raised.
Thus the Respondent's attorney acknowledged that the
Union's proposal which Gill signed on December 18, while
not identical to the hospital 's proposal which the Union
had voted on but rejected the preceding July, was "sub-
stantially the same ." Respondent 's attorney further ac-
knowledged that he became aware , through conversations
with the Federal mediator prior to the ratification vote on
December 10, what the membership was voting to ratify.
Further evidence that there was no ambiguity in the minds
of the Respondent 's agents as to what constituted the
hospital's last proposal-which formed the predicate for
the ratification vote on December 10-is exemplified by
"the Finch letter" of December 18 where such "last pro-
posal" was spelled out in detail . Clearly, based on the evi-
dence in the record as a whole , there can be no doubt that
Respondent was well aware of the terms and conditions of
the proposed agreement which the Union accepted on De-
cember 10.
It is true , of course , that the document which the union
representatives signed on December 18 did not spell out
the duration of the contract, and this is an integral part of
the agreement. However , until the hearing in this case,
there is no evidence in the record that any representative of
the Respondent objected to the proposed agreement on the
grounds that it was incomplete because the parties had not
reached an accord as to the duration thereof . Moreover,
Gill testified without contradiction that he understood the
hospital 's offer to be that the contract would expire on
December 31 , 1975, and it is apparent from the lack of any
contradiction by Respondent's agents in the record that
they were in agreement as to this provision . Accordingly,
the fact that it was not specifically included in the Union's
proposal submitted to the Respondent on December 18 is
not fatal.
Finally , it seems implicit that the agents of Respondent
were well aware of the contents of the proposed agreement
when , on December 18, it requested the Union to conduct
another ratification vote . There was nothing in the "Finch
letter" of that date which indicated any doubt in the minds
of the Respondent 's agents as to what constituted the
agreement negotiated between the parties , and that all that
was required in order to have a binding agreement was
another ratification vote conducted in the manner suggest-
ed by the Respondent and in which a majority of employ-
ees in the unit would evidence their approval of the propos-
al.
There remains for consideration Respondent's argument
that there could be no final agreement between the parties
until such proposed agreement was approved by the
Respondent's board of trustees . Dombrowski testified that
at the outset of negotiations he made it clear to Gill that
any agreement negotiated had to be approved by the board
of trustees-that Dombrowski could only recommend such
approval . Gill did not recall such a statement but I note
that in Gill's letter to Dombrowski of December 27, 1974,
he recognized that the agreement was to be submitted "to
the Hospital Board that signature be authorized ." Under
all circumstances , I credit Dombrowski 's testimony that
the Union understood that any final agreement was to be
submitted to the Respondent 's board of trustees before
such agreement became final and binding.
As previously noted , the approval of the Respondent's
board of trustees became a condition precedent to the exis-
tence of a final and binding agreement, and the Union
acquiesced in such a procedure . Since the filing of the de-
certification petition interceded prior to the hospital
BRONSON METHODIST HOSPITAL
board's consideration of the proposed agreement, thereby
raising a question of representation, it appears to follow
that there was no final and binding agreement upon which
it may be held that Respondent failed to sign.10
In view of all of the foregoing, it is found that Respon-
dent did not agree to a contract that it refused to sign.
10 See Paul Robey, an individual d/bla Crown Drug Company, 136 NLRB
865 (1962). In the cited case the Trial Examiner stated (with Board approv-
al), as follows:
The record is abundantly clear that [the Respondent's negotiator] did
have authority to negotiate but not to conclude an agreement , and that
the Union chose to deal with Respondent on these terms . Since the
Respondent did not agree , it may not be held to have failed to sign a
negotiated agreement.
It is noted that the certification year had passed, and that there is no
evidence that the Respondent in any way instigated or solicited the RD
petition. Accordingly , it constituted objective evidence of employee dissatis-
faction upon which Respondent was privileged to rely in temporarily refus-
ing to execute the proposed agreement pending resolution of the question
concerning representation raised by the Petition.
CONCLUSIONS OF LAW
99
1. Respondent is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent has not engaged in unfair labor practices
as alleged in the complaint, within the meaning of Section
8(a)(1) and (5) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following:
ORDER 11
The complaint is dismissed in its entirety.
11 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings , conclusions , and Order , and all objections thereto shall be
deemed waived for all purposes.