Charles S. Wison Memorial Hospital

National Labor Relations Board - Board Decisions

Aug 31, 2000

331 N.L.R.B. 1529 (N.L.R.B. 2000)

CHARLES S. WILSON MEMORIAL HOSPITAL 1529
Charles S. Wilson Memorial Hospital (Division of
U.H.S. Hospitals, Inc.) and International Broth-
erhood of Painters and Allied Trades, Mainte-
nance and Service Local 1990, AFL–CIO. Case
3–CA–20667
August 31, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND LIEBMAN
On June 24, 1998, Administrative Law Judge Ray-
mond P. Green issued the attached decision. The Gen-
eral Counsel and the Respondent filed exceptions, sup-
porting briefs, and answering briefs, and the Respondent
filed a reply 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 decided to
affirm the judge’s rulings, findings,1 and conclusions,
and to adopt the recommended Order, as modified and
set forth in full below.
We adopt the judge’s finding that the Respondent vio-
lated Section 8(a)(1) of the Act by threatening to rescind
existing benefits pertaining to paid time off if the Union
filed unfair labor practice charges.2 We also adopt the
judge’s finding that the Respondent further violated Sec-
tion 8(a)(1) by maintaining a rule requiring employees to
refrain from talking to union representatives and requir-
ing them to inform management of any conversations
with union representatives.3 However, we reverse the
judge’s dismissal of allegations that the Respondent vio-
lated Section 8(a)(5) and (1) by refusing to furnish em-
ployees’ timecards to the Union as requested and further
violated Section 8(a)(5) and (1) by unilaterally modify-
ing contractual shift differential pay entitlements.

1 The General Counsel has excepted to some of the judge’s credibil-
ity findings. The Board’s established policy is not to overrule an ad-
ministrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 In adopting the judge’s finding in this respect, we note that the
judge found that the Respondent linked the recission of these benefits
to the filing of a charge. Thus, union official, William A. Finch, testi-
fied that Michael McNally, the Respondent’s vice president for human
resources, told him that the Respondent would rescind benefits should
the Union file unfair labor practice charges with the Board. In these
circumstances, we find that McNally’s comments amounted to a threat
to rescind benefits that was linked specifically to the filing of charges.
The comments were not made simply to illustrate the Respondent’s
interpretation of the relevant contractual provisions.
3 In finding this violation, we rely on sec. 5.5.4 of the Respondent’s
Human Resources Policy and Procedure Manual pertaining to “direct
contact by Organizers.” As found by the judge, this provision can
reasonably be construed on its face as requiring employees to refrain
from conversing with union representatives and to report conversations
with union representatives. In these circumstances, we find it unneces-
sary to consider whether or not sec. 5.5.3 of the Manual pertaining to
“Supervisors’ Awareness” violates the Act in any respect.
1. On January 24, 1997, Union Representative Finch
made a written request to see his own employee time-
cards for the pay periods of February 4 to 17, 1996,
March 3 to 16, 1996, and December 8 to 21, 1996. The
Respondent furnished the December timecards but re-
fused to permit access to the other requested timecards.
The reason given was that the governing collective-
bargaining agreement required that a grievance must be
filed within 7 days of the occurrence giving rise to the
grievance and that, therefore, no grievance could be filed
over any irregularities revealed by the timecards. The
judge found that the Respondent was privileged to de-
cline furnishing the timecards because the information
was not relevant to the enforcement of the collective-
bargaining agreement. We disagree.
It is well settled that attendance records and employee
timecards are presumptively relevant to a union’s duties
as the exclusive bargaining representative of unit em-
ployees. Zeta Consumer Products Corp., 326 NLRB 293
(1998). Further, in the present case, the timecards that
the Union sought concerned shift differential payment
issues, a matter that, as the judge found, had been for
some time “fertile ground for confusion and contention.”
Thus, whether or not a viable grievance procedurally
could have been filed and processed concerning the pre-
cise dates covered by the requested Finch timecards, the
information sought by the Union was particularly rele-
vant to its responsibilities over these ongoing payment
issues, including potential future problems or contem-
plated approaches to avoiding appropriate wage payment
problems. Accordingly, we find that the Respondent
violated Section 8(a)(5) and (1) by failing to furnish the
timecards sought by the Union.
2. The complaint also alleges that the Respondent uni-
laterally and without notice to the Union revised contrac-
tual shift differential pay entitlements in violation of Sec-
tion 8(a)(5) and (1). The judge found that the dispute
over this matter was essentially a dispute concerning the
interpretation of the collective-bargaining agreement in
which the positions of both the Union and the Respon-
dent were reasonable and plausible. Accordingly, the
judge dismissed this allegation of the complaint, citing
NCR Corp., 271 NLRB 1212 (1984); and Westinghouse
Electric Corp., 313 NLRB 452 (1993), enfd. sub nom.
Salaried Employees Assn. of Baltimore Div. v. NLRB, 46
F.3d 1126 (4th Cir. 1995), cert. denied 514 U.S. 1037
(1995). We reverse.
Article VI, section 3 of the collective-bargaining
agreement provides as follows:
Shift Differential: Employees shall be paid a shift dif-
ferential of $.90 per hour in accordance with the Hospi-
tal’s Human Resources Policy 3.7 Shift Differential.
331 NLRB No. 154
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1530
Section 3.7 is a provision contained in the Respon-
dent’s Human Resources Policy and Procedure Manual, a
document containing numerous employment rules and
regulations applicable to both nonunion and union-
represented employees of the Respondent. Included in
section 3.7 are general eligibility requirements and
guidelines for determining the circumstances in which
employees will be paid a shift differential premium.
On April 11, 1997, the Respondent announced the
modification of shift differential eligibility rules by
changing eligibility requirements set forth in section 3.7
of the manual. It did so without notifying or bargaining
with the Union. When the Union protested the modifica-
tions, the Respondent asserted that the Union had effec-
tively agreed to allow the Respondent to modify section
3.7 because that section had been expressly incorporated
into the collective-bargaining agreement. The Respon-
dent contends, in this regard, that section 1.1 of the man-
ual specifically provides that changes in policies and
procedures contained therein will be issued as needed,
and that the parties’ contractual management-rights pro-
vision reserves to the Respondent the right to make or
change rules, regulations, and practices not inconsistent
with the terms of the collective-bargaining agreement.
Waivers of statutory rights “are not to be lightly in-
ferred, but instead must be ‘clear and unmistakable.’”
Georgia Power Co., 325 NLRB 420 (1998), enfd. mem.
176 F.3d 494 (11th Cir. 1999), citing Metropolitan Edi-
son Co. v. NLRB, 460 U.S. 693, 708 (1983). “[E]ither
the contract language relied on must be specific or the
employer must show that the issue was fully discussed
and consciously explored and that the Union consciously
yielded or clearly and unmistakably waived its interest in
the matter.” Georgia Power Co., 325 NLRB at 420–421.
We find that the reference in the collective-bargaining
agreement to section 3.7 of the manual clearly estab-
lished that the parties agreed that the eligibility require-
ments set forth therein would govern the payment of shift
differential premiums. However, the bargaining agree-
ment does not contain any language conferring on the
Respondent the right unilaterally to change the eligibility
requirements of section 3.7 as they existed at the time the
contract was executed. Further, the contractual manage-
ment-rights provision only confers on the Respondent the
right to change rules and regulations “not inconsistent
with the terms of this Agreement.”
In these circumstances, we find that the contractual
language does not meet the standard for a clear and un-
mistakable waiver of the Union’s right to bargain about
any changes in the eligibility requirements for shift dif-
ferential pay and, indeed, of the Union’s right to insist
that the Respondent honor the eligibility requirements
contained in section 3.7 at the time of the contract’s exe-
cution.4 Accordingly, we find that the Respondent vio-
lated Section 8(a)(5) and (1) by unilaterally changing
shift differential entitlements.5
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act.
Specifically, we shall order the Respondent to furnish
to the Union the timecard information requested on or
about January 24, 1997. We shall also order the Respon-
dent to restore its former policy pertaining to shift differ-
ential entitlements under article VI, section 3 of the col-
lective-bargaining agreement. In addition, the Respon-
dent shall reimburse unit employees for any losses result-
ing from the unilateral changes, with such amounts to be
computed in the manner set forth in Ogle Protection Ser-
vice, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir.
1971), with interest as prescribed in New Horizons for
the Retarded, 283 NLRB 1173 (1987).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Charles S. Wilson Memorial Hospital,
Johnson City, New York, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Maintaining in force and effect a rule requiring
employees to refrain from talking to union representa-
tives and requiring them to report conversations with
union representatives to management.
(b) Threatening employees that if the International
Brotherhood of Painters and Allied Trades, Maintenance
and Service Local 1990, AFL–CIO, filed an unfair labor

4 The Respondent contends that, during contract negotiations, its ne-
gotiator told the Union that the Respondent reserved the right to change
the policies contained in sec. 3.7, a matter denied at the hearing by the
Union’s representatives. Even assuming, arguendo, that the Respon-
dent sought to reserve the right to make changes, there is no showing
that the Union agreed to that assertion or consciously yielded or clearly
waived its interests. Thus, the notes of the Respondent’s negotiator,
McNally, only indicate that the Union accepted the contractual lan-
guage as proposed and did not expressly respond to, much less agree to,
the Respondent’s assertion of a right to change the eligibility policies in
the future.
5 We adopt the judge’s dismissal of the complaint allegation that the
Respondent violated the Act by eliminating the “pay plus” portion of
the contractual bonus plan. In contrast to the allegation concerning
unilateral changes in the shift eligibility rules—which turns on whether
the Union waived its right to bargain or to be consulted about future
changes—the “pay plus” allegation turns solely on the interpretation of
the term “bonus program” under the bargaining agreement, as applied
to a newly enacted payment system, and raises no issue of waiver. We
agree with the judge that both parties offer plausible interpretations of
that term, and that the Respondent’s actions in accordance with its
interpretation, although arguably a violation of the contract, do not
constitute a violation of its bargaining obligations under the Act.
CHARLES S. WILSON MEMORIAL HOSPITAL 1531
practice charge, the Employer would withdraw certain
benefits previously given to employees represented by
said Union.
(c) Failing and refusing to furnish to the Union re-
quested timecard information that is relevant and neces-
sary to its role as the exclusive bargaining representative
of bargaining unit employees.
(d) Unilaterally modifying its policy pertaining to shift
differential entitlement under article VI, section 3 of the
collective-bargaining agreement.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Furnish the Union with the timecard information
that it requested on around January 24, 1997.
(b) Restore the shift differential entitlement policies
under article VI, section 3 of the collective-bargaining
agreement that were changed unilaterally, and make unit
employees whole, with interest, for any losses that they
may have suffered as a result of the unilateral changes.
(c) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment re-
cords, timecards, personal records and reports, and all
other records, including an electronic copy of such re-
cords if stored in electronic form, necessary to analyze
the amount of backpay due under terms of this Order.
(d) Within 14 days after service by the Region, post at
its facility in Johnson City, New York, copies of the at-
tached notice marked “Appendix.”6 Copies of the notice,
on forms provided by the Regional Director for Region
3, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt 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, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former
employees employed by the Respondent at any time
since November 1, 1996.
(e) Within 21 days after service by the Region, file
with the Regional Director for Region 3 a sworn certifi-
cate of a responsible official on a form provided by the

6 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 Na-
tional 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.”
Region attesting to the steps that the Respondent has
taken to comply.
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.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT maintain any rule requiring employ-
ees to refrain from talking to union representatives and/or
requiring them to report conversations with union repre-
sentatives to management.
WE WILL NOT threaten employees that if the Interna-
tional Brotherhood of Painters and Allied Trades, Main-
tenance and Service Local 1990, AFL–CIO, filed an un-
fair labor practice charge against us, we would withdraw
benefits previously given to employees represented by
said Union.
WE WILL NOT fail and refuse to furnish to the Union
requested timecard information that is relevant and nec-
essary to its role as the exclusive bargaining representa-
tive of bargaining unit employees.
WE WILL NOT unilaterally modify our policy per-
taining to shift differential entitlement under article VI,
section 3 of 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
guaranteed you by Section 7 of the Act.
WE WILL furnish to the Union the timecard informa-
tion requested on around January 24, 1997.
WE WILL restore the shift differential entitlement pol-
icy under article VI, section 3 of the collective-
bargaining agreement and WE WILL make unit employ-
ees whole, with interest, for any losses that they may
have suffered as a result of our unilateral changes.

Robert A. Ellison Esq., for the General Counsel.
John Fish, Esq., for the Respondent.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. This
case was tried in Binghamton, New York, on February 23 and
24, 1998. The charge and amended charge were filed by the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1532
Union on May 1, and July 7, 1997. The complaint was issued
on July 11, 1997, and alleged:
1. That the Union has been the designated exclusive collec-
tive-bargaining representative of certain engineering depart-
ment employees of the Respondent and that the most recent
collective-bargaining agreement runs from February 1, 1996, to
February 1, 1999.
2. That on or about April 16, 1997, the Respondent by Mi-
chael McNally, vice president of human resources, threatened
employees with the recission of improved benefits if the Union
filed unfair labor practice charges against it.
3. That since November 1, 1996, the Respondent has main-
tained a written policy directing employees to cease any con-
versation with union representatives and to report such conver-
sations to the Respondent.
4. That on various dates since November 1, 1996, including
January 28 and February 28, 1997, the Union requested that the
Respondent furnish the time cards of unit employees which the
Respondent has failed to furnish.
5. That on April 13, 1997, the Respondent unilaterally and
without notice to the Union, revised the contractual shift differ-
ential pay entitlements and on June 22, 1997, eliminated the
“pay plus” portion of the bonus plan set forth in the collective-
bargaining agreement.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
The 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 and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Charles S. Wilson Memorial Hospital, which is located in
Johnson City, New York, is a division of U. H. S. Hospitals,
Inc. Nearby is Binghamton General Hospital which is also a
division of U. H. S. Hospitals, Inc. Wilson employs about 1800
and the two hospitals combined employ about 3000 people.
The only group of people represented by a union are the 30 odd
engineering department employees at Wilson.
The Union has been the bargaining representative of this
group of employees since the early 1970s. According to both
sides, the relationship has been amicable in the sense that the
parties have, without resort to strikes or lockouts, entered into
and lived by successive collective-bargaining agreements.
According to Albert McNally, U.H.S. vice president for human
resources, during the 9 years that he has been at the hospital,
there have been only two grievances that went to arbitration.
The most recent contract runs from February 1, 1996, to Febru-
ary 1, 1999.
Under the terms of the past and present collective-bargaining
agreements, each classification of represented employee has a
fixed pay rate. (Albeit a few classifications have a starting pay
rate which is a little lower than the normal rate.) This is differ-
ent from the other employees of the hospitals, including the
engineering department employees at Binghamton Hospital,
who have wage rate ranges, generally divided into quintiles.
The collective-bargaining agreement contains a griev-
ance/arbitration provision, (art. X), as well as provisions relat-
ing to the finality of the contract, (art. XVIII) and management
rights, (art. III). As certain provisions of the contract are at
issue in the present case, these will be discussed at the appro-
priate time.
The terms and conditions of employment of nonrepresented
employees are governed solely by the terms of the U.H.S. Hu-
man Resources Policy and Procedure Manual, (the manual).
The policies set forth in this manual go back many years and
the manual is amended, usually on a biyearly basis, as changes
or modifications are made to policy. Copies of the manual are
maintained in departmental managers’ offices and are available
for inspection by rank-and-file employees. (Employees are
given, at the time of hire, an abbreviated version of the manual
and they are notified that if they have any questions as to the
application of policy, they can look at the manual.)
The employees who are represented by the Union are also
subject to the terms of the Human Resources Policy and Proce-
dure Manual, except as they may be inconsistent with the provi-
sions of the collective-bargaining agreement. Thus, the con-
tract’s management-rights clause at article III states:

All management functions and responsibilities which the
Hospital has not expressly modified or necessary implied or
restricted by a specific provision of this Agreement are re-
tained and vested exclusively in the Hospital except as herein
provided to the contrary. Without in any way limiting the
foregoing, the Hospital reserves the right to establish and ad-
minister policies and procedures related to maintenance of the
Hospital; to reprimand, suspend, discharge or otherwise disci-
pline employees for just cause (except that during the proba-
tionary period the provision of Article 1, section 4 shall gov-
ern); to hire, transfer, promote layoff and recall employees to
work; to determine the number of employees and the duties to
be performed; to maintain the efficiency of employees and es-
tablish standards of performance; to establish, expand, reduce,
alter, combine and consolidate all maintenance department
operations, to determine the assignment of work, the qualifi-
cations required, the size and composition of the work force;
to make or change Hospital rules, regulations, policies and
practices not inconsistent with the terms of this Agreement; to
contract out maintenance and/or construction work subject to
the provisions of Article 1, Section 8; and otherwise to man-
age the Hospital, attain and maintain full operating efficiency
and direct the work force except as expressly modified or re-
stricted by a specific provision of this agreement.

On a very limited basis, the previous collective-bargaining
agreement has specifically referred to provisions in the hospi-
tal’s manual. In the 1994–1996 collective-bargaining agree-
ment, the parties agreed that terminal benefits would be paid in
accordance with the manual’s policy, Section 4.1 and that
leaves of absence for family leave purposes would be in accor-
dance with section 4.8 of the manual. Thus, for those limited
purposes the employer and the union agreed to describe the
benefits as being the same as those given to all other employees
in the hospitals.
The manual is a series of documents contained in a loose leaf
book, which is updated on a regular basis. Article 1.1 of the
manual states;
Our practices policies and benefits are continually evaluated,
and from time to time, UHS Hospitals may make changes.
CHARLES S. WILSON MEMORIAL HOSPITAL 1533
Changes in policies and procedures will be issued as needed,
and it is the responsibility of policy manual holders to keep
their manual current.
. . . .
All UHS Hospitals employees are expected to comply with
the Personnel Policies and Procedures in this manual.
B. Section 5 of the Manual and
Section 8(a)(1) of the Act.
Section 5 of the manual has been in the book, in its present
form, since 1990. It states:
5.5.3 Supervisor’s Awareness:
In order to effectively respond to union organizing efforts, or-
ganizing activity must be reported as soon as it appears.
Change in usual routine, presence of strangers and change in
employee concerns and/or morals may be signs of union or-
ganizing activity. Supervisors are in the best position to no-
tice such changes and it is each supervisor’s responsibility to
report them, whether among his/her own employees or any-
where throughout UHS, to the Manager, Employer/Employee
Relations or the Vice President of Human Resources.
5.5.4. Direct contact by Organizers:
If you are ever contacted by either an employee or an “out-
sider” who identifies himself/herself as an organizer, immedi-
ately:

Tell him/her to contact the Vice President of Human Re-
sources or the Manager Employment/Employee Relations.
Terminate the conversation
Contact the Vice President of Human Resources and report
all circumstances of your conversation made a written con-
firmation of your conversation with the organizer and for-
ward it to the Vice President of Human Resources.

The Respondent argues that this provision of the manual is
directed only to supervisors and not to employees. It therefore
argues that under Twin County Grocers, Inc., 244 NLRB 1028
(1979), it cannot be construed as being violative of the Act.
However, as noted above, the manual is, by its terms, binding
on all employees and this provision is not specifically reserved
for supervisory behavior. As the manual is available to any
employee and as this provision could reasonably be construed,
on its face, as requiring employees to refrain from and/or report
solicitations from union representatives, it is concluded that the
continued maintenance of this policy constitutes a violation of
Section 8(a)(1) of the Act, even though it obviously was not
designed to affect the represented employees who are the sub-
ject matter in the present case. See Headquarters Plaza Hotel,
276 NLRB 925, 926–927 (1985); McGaw of Puerto Rico, Inc.,
322 NLRB 438, 446 (1996); and D&W Food Centers Inc., 305
NLRB 553, 555–556 (1991). (This provision of the manual
could also be construed by employees who read it as meaning
that employee union activities will be placed under surveil-
lance.)
C. Alleged Modifications of the Contract
1. “Pay Plus.” bonus or wage increase?
During the period from 1984 to 1996, the Hospital had a va-
riety of different programs designed to compensate nonunit
employees. During some years, there were merit increases and
at other times there were across-the-board pay increases. Also,
at various times there were various bonus programs where peo-
ple were paid additional amounts that did not affect their basic
wage rates. As these programs were announced by the Hospital
when they went into affect, the represented employees, no
doubt were somewhat familiar with these programs even
though they were not affected by them; their wages being de-
termined by collective bargaining.
The 1994 to 1996 contract at schedule B states that certain
payments were to be given over the life of the agreement.
These were $450 following ratification; $450 on August 1,
1994; $340 on February 1, 1995; and $340 on July 1, 1995. It
is not clear to me whether these payments, which were de-
scribed in the contract as “lump-sum payments” were in lieu of
wage rate increases or were in addition to increases.
During the negotiations that took place in December 1995
and January 1996, the hospital’s original position was that it
would not agree to give pay increases but rather would agree to
give them lump-sum payments in lieu of wage increases. This
proposal was based on the idea that granting lump-sum pay-
ments in lieu of wage increases would not cause a rise in other
benefits that were based on the wage rates. The Union opposed
this idea and demanded wage increases.
McNally, at one point, offered a 10-cent-per-hour wage in-
crease during the first year of a contract, an increase of 5-cent-
per-hour during the second year and some “structured” lump-
sum payments. This also was rejected by the Union.
On January 11, 1996, McNally offered a 20-cent-per-hour
wage increase during the first year plus the commitment to pay
to the unit employees whatever bonus program was given to the
nonunion employees. The Union countered with a proposal for
a 3-year contract and indicated that they would accept the com-
pany proposal for years 1 and 2, and would accept a freeze for
year 3 if the Company would drop its demand to eliminate the
union-security clause. McNally finally agreed to offer a 20-
cent-per-hour wage increase of the first year of the contract
plus a lump-sum payment of $650, 3 months after ratification,
plus a guarantee that the employees would receive, in the sec-
ond and third years of the contract, the same bonus program
offered to all other employees. For better or worse, the phrase
lump-sum payments was used interchangeably with the term
bonus and the contract, which at schedule A sets the new rates,
contains the following language at schedule B;
Schedule B.
3 months after ratification—$650
1997. Same bonus program for which nonbargaining unit
will be eligible.
1998. Same bonus program for which nonbargaining unit
will be eligible.

There is no dispute that when the Union’s representative
asked McNally, at the January 11 meeting, if the unit employ-
ees would be eligible for the same pay increases given to non-
union employees, the company’s response was no; that the
guarantee applied only to any annual bonuses paid to other
employees.
At or about the same time that the Company was negotiating
with the Union, it was also developing a pay and bonus plan for
its other 3000 employees. This resulted in what was called the
team plus/pay plus program that was announced to employees
on January 31, 1996. This was before the union contract was
executed which was on May 7, 1996.
In any event, the program for the nonunit employees pro-
vided for a two part package: (a) the team plus program which
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1534
was designed as a bonus program, the amounts determined by
among other things, the hospital’s profits; and (b) the pay plus
program which was designed, for the most part, to increase the
wage rates given to nonunion employees.
In year one of the collective-bargaining agreement, the unit
employees got the wage increase that was called for (i.e., 20
cents per hour plus the $650 lump sum payment). In the second
and third year of the contract, the unit employees got the same
team plus bonuses that were given to all other employees.
They did not get, however, any of the pay plus increases which
the employer construed as being outside the term “bonus” and
therefore not included in the collective-bargaining agreement.
The reason that the Union asserts that it was entitled, under
its contract, to certain pay plus payments is because under the
Pay Plus program some, but not all of the payments, were in the
nature of lump sum payments to employees and not increases in
their hourly wage rates. This requires a little explanation.
The pay plus program which was implemented in 1996 in-
volved various levels of increases in the wage rates of all non-
union employees within each classification’s wage range. As
set up, the plan tended to be weighted in favor of people at the
lower end of each wage range. However, for some people
within some classifications, who were near or at the top of the
pay classification’s range, the pay plus program contemplated
giving them a lesser percentage amount of money without
changing the upper limit of the pay scale. Thus, if an employee
in classification A was at the top of his or her pay range, that
person would receive a lump sum amount, for example in the
amount of 2.5 percent, in lieu of a wage increase. On the other
hand, another employee within the same classification who was
at the bottom of the pay range might receive a 6 percent in-
crease in his or her hourly rate. (Each wage range was divided
into fifths.) It is pretty obvious to me that the pay plus program
was planned and implemented as a wage increase program and
not as a bonus plan. To the extent that some employees would
receive a lump sum payment instead of wage increases, this
was a function of the employer’s desire to retain a maximum
rate within each classification while at the same time allowing
employees at the top of the pay range to participate, at least to
some extent, in the wage increases given to others within the
same classification.
In the announcement of the new pay program on January 31,
1996, the Company, at that portion describing the Pay Plus
portion, stated: “Every eligible employee will get a salary pay-
ment (either a raise or a second bonus) based on a new system
designed to make salaries more fair and equitable.”
Given the fact that the January 31 announcement described
the pay plus program as giving employees either a raise or
“second bonus” and also given the fact that some portion of the
employees would get “lump sum payments” instead of wage
increases, the Union expressed its opinion that these constituted
a “bonus” to which its members should be entitled to in 1997
and 1998 under the terms of the collective-bargaining agree-
ment. McNally refused, indicating that he interpreted the con-
tract as requiring the company only to give whatever bonuses
were given to nonunit employees; these being sole payments
through the Team Plus program.
2. Shift differentials
For all employees the Hospital provides shift differentials
whereby people working on evening and night shifts are paid
more than what they would earn during a daytime shift. The
nonunion employees are covered by the Hospital’s Human
Resource Policy and Procedure Manual and the bargaining unit
employees are covered by their collective-bargaining agree-
ment. For some time before 1996, the nonunion employees’
shift differentials were greater than those for the unionized
employees. (The shift differential for the bargaining unit em-
ployees was 85 cents per hour and according to Mr. Shoemaker
was paid when employees worked 3-1/2 or 4 hours before or
after regular shift.)
At the commencement of negotiations, the Union asked that
the shift differential be raised to $2 per hour; that figure being
the amount of the differential for nonunion employees working
on the third shift.
Ultimately the parties agreed to the following language at
Article VI, Section 3:
Shift Differential. Employees shall be paid a shift differential
of $.90 per hour in accordance with the Hospital’s Human
Resources Policy 3.7 Shift Differential.
Since the contract language provides for an amount which
was different from the amount given to nonunit employees, the
incorporation of human resources policy 3.7 can only refer to
the eligibility requirements for obtaining the differential. That
is, under what circumstances, an employee would be paid the
difference.
McNally testified that when the above language was dis-
cussed, he told the Union’s representatives that the hospital
reserved the right to make changes in section 3.7 in accordance
with section 1.1 of the Human Resources Policy Manual. The
Union’s representatives do not recall any such reservation and
there is nothing in writing to memorialize it.
On April 11, 1997, the employees were told that the shift dif-
ferential policy was being revised effective April 13, 1997.
The changes involved modifications of the eligibility rules
which had the affect of reducing the ability of employees to
obtain the shift differential in certain situations. (All parties
agreed that the changes were made and that they had an impact
on the bargaining unit employees.)
William Finch, the interim union president told Tony
Lemisch that the Union objected to the proposed changes inso-
far as they affected the bargaining unit employees. On April 15,
1997, the Union sent a letter protesting the change. The letter
read:
Local 1990 would like to inform you that we do not
recognize the revision of Human Resource Policy 3.7 for
the collective bargaining unit. We do not argue your right
to change this policy for the non-bargaining unit of U.H.S.
Hospitals.
We have been advised by the International Brother-
hood of Painters & Allied Trades that should U.H.S. Hos-
pitals take unilateral action by changing a mandatory bar-
gaining subject of wages (which includes shift differential
and the eligibility to achieve it), our collective Bargaining
Unit Agreement, it would constitute a violation of the Na-
tional Labor Relations Act.
We urge U.H.S. Hospitals to take a closer look at this
policy change for the collective bargaining until to prevent
an unfair labor practice charge being filed with the Na-
tional Labor Relations board.

On April 16, 1997, the Union’s representatives met with
McNally and Lemisch. At this meeting, McNally asserted that
the employer had the right to change section 3.7, inasmuch as
by incorporating that provision into the collective-bargaining
CHARLES S. WILSON MEMORIAL HOSPITAL 1535
agreement, the Union agreed, in effect, to the employer’s right
to modify it pursuant to section 1.1 of the Human Resources
Policy Manual. That is, as section 3.7 was subject to modifica-
tion, by agreeing to incorporate that section into the contract,
the parties, a fortiori, recognized the possibility that it might be
altered by the employer during the life of the agreement. The
Union’s representatives took the position that under the finality
clause of the contract, the company could not change section
3.7 insofar as it affected unit employees because the contract
incorporated the provisions of section 3.7 as they existed at the
time of the contract’s execution. The Union demanded that the
hospital retain the old terms of the old section 3.7 for the life of
the contract. Alternatively the Union proposed that they would
agree to the new section 3.7 if the hospital raised the differen-
tial pay for the unit employees to match the amount paid to
nonunion employees. McNally refused. The Union’s represen-
tatives stated that they would be forced to file an unfair labor
practice charge and McNally stated that if it was illegal to make
changes in section 3.7, it would also be illegal for the hospital
to have made the changes in the paid time off carryover and the
Family Leave Act provisions of the Human Resources Policy
4.1 which had previously been incorporated by reference into
the collective-bargaining agreement at article 7, section 6.
McNally stated that if the Union filed the unfair labor practice
charge regarding the change in section 3.7, he would have to
consider withdrawing the “favorable” changes made to section
4.1 which had been put into affect vis a vis all employees in-
cluding unit employees. As the changes to section 4.1 were not
particularly impressive, the Union’s representatives indicated
that they were not sufficiently significant to induce them to
refrain from pushing for the status quo regarding the shift dif-
ferential policy.
3. Legal discussion regarding alleged contract changes
It seems to me that what we have here involves a matter of
contract interpretation, where the resolution requires an inter-
pretation of the language used in the contract in light of the
objectively manifested intent of the parties when they made the
contract. In one instance the issue being, what was the meaning
of the word “bonus” as it was used in schedule B of the 1996–
1999 collective-bargaining agreement. In the second instance,
the issue is whether, by incorporating section 3.7 of the Hospi-
tal’s Human Resource Policy into the union contract (dealing
with differential pay), the parties agreed that the Respondent
therefore had the right to make changes in that policy, pursuant
to section 1.1 of its Human Resource Policy Manual.
The next question is whether this is the type of issue that
should be decided by the Board, especially as the parties to the
contract have established a grievance/arbitration procedure to
resolve matters of contract interpretation and enforcement.
Section 8(d) of the Act provides, inter alia, that neither party
to a collective-bargaining agreement may terminate or modify
such contract during its term. The effect of Section 8(d) is that
in order for a change or modification to be made in an existing
contract, the consent of both parties is necessary.1 In the present
case, it is the General Counsel’s theory that the Respondent

1 This is unlike the more typical unilateral change case where the
employer changes a term or condition of employment that is not spe-
cifically defined by the collective-bargaining agreement. In such cases,
the employer’s obligation is to notify and bargain with the Union. If an
impasse is reached after good-faith bargaining, the employer may make
the proposed change. NLRB v. Katz, 369 U.S. 736 (1962).
unilaterally modified specific provisions of the 1996–1999
contract without the Union’s consent.
In my opinion, the disputes between the parties regarding the
bonuses and the differential pay are essentially disputes con-
cerning the interpretation of the collective-bargaining agree-
ment. While the Union may have a reasonable basis for its
interpretation of the respective contract clauses, the employer’s
interpretations of the clauses are, in my opinion, also plausible.
The evidence in the present case shows that the relationship
between the employer and the Union has been amicable and
businesslike; there being no evidence of animus, bad faith or
intention to undermine the Union. The contract provides a
grievance/arbitration procedure to resolve disputes regarding
contract interpretation and the disputes involved in the present
case surely could have been resolved in that forum. Accord-
ingly, I shall recommend that these allegations of the complaint
be dismissed. Westinghouse Electric Corp., 313 NLRB 452
(1993); Crest Litho, 308 NLRB 108, 110 (1992); Atwood &
Morrill Co., 289 NLRB 794, 795 (1988); NCR Corp., 271
NLRB 1212, (1984).2 See however, Carrier Corp., 319 NLRB
184, 196 (1995), where the administrative law judge found that
the employer’s interpretation of the contract was implausible.
Notwithstanding the above, I conclude that the Respondent,
on April 16, 1998, violated the Act when McNally told union
representatives, (who also were employees), that if they filed an
unfair labor practice charge over the differential pay issue, he
would consider rescinding certain other changes that the hospi-
tal made regarding section 4.1 of the policy manual, which
favored the bargaining unit employees. McNally may have
intended these remarks merely to illustrate his argument that
the contract gave the employer the right to modify human re-
sources policies which are incorporated by reference into the
union contract and that if a change in one was a violation of
law, then any other changes made in similar policies incorpo-
rated by reference, would also be a violation of the law. That
may have been his intention, but a reasonable person hearing
his remarks might have reasonably construed them as going
beyond an argument and amounting to a threat to withdraw
benefits previously granted in the event that the Union filed an
unfair labor practice charge. Therefore to this extent, I con-
clude that the Respondent violated Section 8(a)(1) of the Act.
D. Alleged Refusal to Furnish Timecards
Karen Hadaway became the secretary in the engineering de-
partment in 1994 and part of her responsibility was to gather
the timecards and transmit the information to payroll. Her du-
ties included ascertaining what appropriate rates of pay were
applicable when the employees worked overtime or were on
call or when they worked in circumstances where shift differen-
tials were required. When employees had questions about their
pay, they typically would go to her and review their paychecks
with the timecards at the time that they received their pay.
McNally testified that when Hadaway started in the engi-
neering department, she more effectively then her predecessor,
applied the appropriate contract rates to the employees there.
This apparently, caused some disputes, especially during the
2 The fact that the Respondent has not urged in the present case that
the matter be deferred to arbitration pursuant to Collyer Insulated Wire,
193 NLRB 837 (1971), is not relevant. In the circumstances of this
case, it is not the Respondent’s obligation to initiate the arbitration
provisions of the contract, which at this point would be untimely. NCR
Corp., supra at fn. 7.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1536
winter months when the various pay policies would come into
play. As the contract’s provisions for overtime, on-call pay, and
shift differentials might all come into play during a winter
storm (for which Binghamton and Johnson City are noted) this
was fertile ground for confusion and contention.
As early as December 1995 the Union began making re-
quests that the hospital do audits of its timecard and payroll
records for extensive periods of time. The company’s response
was that it was not going to do this. For example, in a letter
dated December 7, 1995, from McNally to Shoemaker, he
stated:

In the past whenever there have been individual con-
cerns regarding a specific payroll we have researched the
matter. When it was appropriate we have made adjust-
ments. This has been our practice and we will continue to
research individual and specific concerns in the future.
In your letter of December 6, you have not identified
any specific concerns with individuals’ paychecks. De-
partmental wide review of all payroll records for the Engi-
neering Department to identify “possible mispayments” is
neither practical nor reasonable and we are not prepared to
go forward with this request. However, if any employee
has a specific concern we will be glad to research that mat-
ter. 3

On June 25, 1996, Union Representative Walter Sawicki
wrote to Tony Lemisch regarding alleged payroll errors. He
stated:

We are making a second request for such a meeting,
and at that time we would like to see verification of the in-
formation that you have that no payroll errors were made.
Such verification should be made utilizing payroll sheets
and time cards for November through March of each year
beginning with the year 1980 when new wording was ap-
plied to the collective Bargaining Agreement, Section 2,
Article A, Page 8. This wording was in effect until Janu-
ary 1996 when new wording was again added.

This memorandum was passed from Lemisch to manager
Roger Brown who wrote on the document; “I think you know
my feeling on this. There is no way we are going back 16 years
in some witch hunt.”
On April 1, 1997, the Union sent another memorandum to
McNally stating, in pertinent part;

Mr. McNally, Local 1990 would like to request a
meeting to be scheduled concerning the persistent payroll
mistakes in the Wilson Engineering Department. This
concern was brought to your attention March 4, 1997, in a
grievance response meeting. However, you felt it did not
pertain to the issue at hand and suggested a separate meet-
ing to be scheduled.
We have since tried to correct this problem through
our manager of the Engineering Department but the results
have been unsuccessful. Local 1990 now feels a meeting

3 Similar requests were made by individual employees. In April
1996, employee James McManus requested an audit of his time going
back to 1994 and if discrepancies were found, an audit for the past 5
years. Another employee, Christopher Allen, also made a request for a
review of his time cards dating back to 1989. These requests were
refused.
with your involvement is imperative to help correct this
situation . . . .

Mr. McNally’s response was:

Thank you for your recent correspondence relative to
alleged payroll mistakes. . . . My understanding from Tony
Lemisch is that the actual number of errors is quite low.
In addition I am advised that several of the acknowledged
discrepancies were in favor of the employees which indi-
cates to me that this matter is not all that serious. To ad-
dress your request about finding a solution, I would sug-
gest that you work closely in the future with Tony and
Karen to minimize miscommunication and to improve the
accuracy of the data submitted on the time cards.

Thus, from at least 1996, the employees have raised ques-
tions regarding the application of the appropriate rates of pay,
particularly during the winter months. In representing the em-
ployees, the Union’s representatives instructed employees to
make copies of their own timecards and also made several re-
quests on the company, in writing, that the Hospital do an ex-
tensive audit. The company has consistently refused these
audit requests and there is no contention, in this case, that such
refusals constitute a violation of the Act.
Michael Shoemaker testified that at some time in later 1996
or early 1997, various employees had questions about their pay
and that he and Walter Sawicki brought to the attention of Ms.
Hadaway that many employees were complaining that they
were not being paid properly. He then testified that he “be-
lieved” at that time, that “we requested some timecards, and she
said that we were not able to access the timecards at that time.”
In relation to this testimony, Mr. Shoemaker could not recall
when these requests were made or for which employees the
requested timecards were made. Unlike the Union’s normal
practice of putting such matters in memoranda or letters, these
alleged timecard requests were not put in writing.
William Finch, testified that he took over Shoemaker’s role
as union president when Shoemaker was out on disability from
October 1996 to March 1997. Finch also testified that he made
many verbal requests to Karen Hadaway and Tony Lemisch for
timecards and that they refused. When pressed as to whose
timecards he sought, Mr. Finch recalled that he made verbal
requests for the timecards of employees Terry Rundell and Jim
McManus regarding questions they had on shift differentials.
He could not recall, however, when such requests were made
and therefore, it is impossible to ascertain whether any verbal
requests and denials were within the 10(b) statute of limitations
period.
Apart from a written request for his own timecards, made
around January 24, 1997, none of the other alleged timecard
requests were made in writing. Finch’s written request stated:

I, William Finch . . . request to see my time cards for
the pay period of 2/4/96 to 2/17/96, 3/3/96 to 3/16/96 and
12/8/96 to 12/21/96 regarding the possibility of missed
payment of shift-differential per Local 1990’s contract
starting February 1st 1996 to present.

On January 28, 1997, Mr. Lemisch wrote to Mr. Finch and
stated;

In response to your recent request, which was pre-
sented to me by Walter Sawicki on 1/24/97 to see your
timecards for the pay periods of 2/4/96 – 2/17/96, 3/3/96 -
CHARLES S. WILSON MEMORIAL HOSPITAL 1537
3/16/96 and 12/8/96 – 12/21/96, as a courtesy your request
will be honored for the most recent pay period requested.
As your request is outside the timeframe designated in the
contract (within 7 calendar days of the date of the incident
. . . .), no further copies will be provided nor review per-
formed.
I have attached a copy of your 12/8/96–12/21/96 time-
card.

With respect to Finch’s written request for his own time-
cards, I note that under article X of the contract, a grievance
regarding pay for any of these dates, with the possible excep-
tion of the last pay period, would be barred as the contract re-
quires grievance to be filed within 7 days of an occurrence.
Both Hadaway and Lemisch credibly denied that they received
any of the verbal requests for timecards that were mentioned by
Shoemaker and Finch. This therefore, leaves for consideration
the question as to whether the employer’s refusal to furnish some
of the timecards in response to Finch’s written request, violated
Section 8(a)(1) and (5) of the Act.
Where information is sought for the purpose of evaluating
and processing a grievance, the legal test is whether the infor-
mation is relevant to the grievance. And in this respect, the
determination of relevancy is made based on a liberal, discovery
type of standard. NLRB v. Acme Industrial Co., 385 U.S. 432, 437
(1967); and Knappton Maritime Corp., 292 NLRB 236 (1988).
Moreover, the fact that the information sought may tend to dis-
prove a grievance is as equally relevant as those situations where
the information would tend to support a grievance. This is
because the process of resolving grievances is best served by the
disclosure of information which will tend to resolve grievances one
way or the other, at the earliest stage of the procedure and not bur-
den the parties with unwarranted arbitrations. NLRB v. Acme In-
dustrial Co., supra; Square D Electric Co., 266 NLRB 795, 797
(1983); and Ohio Power Co., 216 NLRB 987, 991 (1975).
In W. L. Molding Co. 272 NLRB 1239 (1984), the Board
concluded that the employer had violated the act by failing to
honor a union’s request for information regarding subcontract-
ing and transferring of unit work. The Board, although not
passing on the merits of the Union’s grievance claim, stated:

As the judge noted, a broad discovery-type standard is appli-
cable to requests for information relevant to a union’s func-
tions of negotiating and policing compliance with a collec-
tive-bargaining agreement . . . . “[I]t is not the Board’s func-
tion in this type case to pass on the merits of the Union’s
claim that Respondent breached the collective bargaining
agreement or . . . . committed an unfair labor practice.” . . . .
Thus, the union need not demonstrate actual instances of con-
tractual violations before the employer must supply informa-
tion. . . . . “Nor must the bargaining agent show that the in-
formation which triggered its request is accurate, nonhearsay,
or even ultimately reliable. The Board’s only function in such
situation is in ‘acting upon the probability that the desired in-
formation was relevant, and that it would be of use to the un-
ion in carrying out its statutory duties and responsibilities.”
[Citations omitted.]

If the information requested by Union Representative Finch
was relevant to a grievance filed or even to evaluate whether a
grievance could be filed, the employer’s refusal to furnish
timecards would constitute a violation of the Act. Neverthe-
less, Finch’s request for his timecards, for the purpose of de-
termining whether a shift differential was improperly withheld
from him, went back to a period which was outside the “limita-
tion” period of the grievance/arbitration provisions of the col-
lective-bargaining agreement. (As noted above, a grievance
must be filed within 7 days of the occurrence giving rise to the
grievance.) Therefore, the Union could not have filed a griev-
ance for such periods, no matter what the time cards showed.
And to the extent that a grievance might have been timely filed
regarding the pay period from 12/8/96 to 12/21/96, the timcards
for that period were turned over.
In sum, I therefore conclude that the Respondent has not vio-
lated the Act by refusing to turn over information which is rele-
vant to the enforcement of the collective-bargaining agreement.
CONCLUSIONS OF LAW
1. By maintaining in force and effect a rule requiring em-
ployees to refrain from talking to union representatives and
requiring them to report any conversations with union represen-
tatives to management, the Respondent violated Section 8(a)(1)
of the Act.
2. By telling employees that if the Union filed an unfair labor
practice charge, the employer would withdraw certain benefits
previously given to employee, the Respondent violated Section
8(a)(1) of the Act.4
3. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(1), (2), (6), and (7) of the Act.
4. The Respondent has not violated the Act in any other
manner encompassed by the complaint.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
[Recommended Order omitted from publication.]

4 Although I have concluded that the Employer threatened to with-
draw certain benefits, the evidence does not indicate that this threat was
ever carried out.