Enloe Medical Center

National Labor Relations Board - Board Decisions

Oct 29, 2004

343 N.L.R.B. 470 (N.L.R.B. 2004)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
343 NLRB No. 61
470
Enloe Medical Center and California Nurses Associa-
tion. Case 20–CA–31241
October 29, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
On February 23, 2004, Administrative Law Judge John
J. McCarrick issued the attached decision. The Respon-
dent filed exceptions and a supporting brief. The Gen-
eral Counsel filed an answering brief 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 conclusions2 as
modified and to adopt the recommended Order as modi-
fied below.3

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance 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.
The judge found, and we agree, that Union Representative Kevin
Baker requested that the Respondent bargain about the effects of its
change to the on-call policy in a May 9, 2003 e-mail message, and that
the Respondent violated Sec. 8(a)(5) by refusing the request. In light of
this finding, we find it unnecessary to rely on the judge’s finding that
Baker made two additional requests to engage in effects bargaining on
May 12 and 14. Nor do we pass on the judge’s finding that the Re-
spondent’s announcement of the change to the on-call policy was pre-
sented to the Union as a fait accompli, absolving the Union from its
obligation to request effects bargaining.
2 In adopting the judge’s conclusion that the Respondent violated
Sec. 8(a)(1) by “coaching” nurses Cathe Lawson and Cindy Smith
against their continued “complaining” and “negative behavior,” Chair-
man Battista does not suggest that employers are generally prohibited
from counseling employees about factors relating to employee morale.
See generally SKD Jonesville Division L.P., 340 NLRB 101, 102
(2003). Here, however, Chairman Battista finds that the Respondent
violated the Act because the particular “complaining” and “negative
behavior” included Sec. 7 activity. In this context, the Respondent’s
admonition that the negative behavior and complaining were expected
to cease was unlawful.
3 The Respondent correctly observes in its exceptions that there was
no allegation or evidence that the violations found by the judge resulted
in any economic loss to employees and that the judge, therefore, erred
by including a recordkeeping provision in his recommended Order for
the purpose of calculating backpay. We shall modify the recommended
Order by deleting this provision. As requested by the Respondent, we
shall also modify the language of pars. 1(a) and 2(a) of the recom-
mended Order, and include a new notice, to specify that the Respon-
dent’s bargaining obligation pertains to the effects of its change to the
on-call policy.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Enloe
Medical Center, Chico, California, its officers, agents,
successors, and assigns, shall take the action set forth in
the Order as modified.
1. Substitute the following for the first two lines of
paragraph 1(a).
“(a) Failing to bargain in good faith with the Union, as
the exclusive representative of employees in the follow-
ing appropriate unit, concerning the effects of its change
in the on-call policy in the Women’s Services Depart-
ment.”
2. Substitute the following for the first four lines of
paragraph 2(a).
“(a) On request, bargain with the Union as the exclu-
sive representative of employees in the unit described in
paragraph 1(a) above, concerning the effects of its
change in the on-call policy in the Women’s Services
Department.”
3. Delete paragraph 2(b) and reletter the following
paragraphs.
4. Substitute the attached notice for that of the admin-
istrative law judge.
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 Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT fail to bargain in good faith with the
California Nurses Association as the exclusive represen-
tative of our employees in the following appropriate bar-
gaining unit concerning the effects of our change in the
on-call policy in the Women’s Services Department:
All full-time and regular part-time, per diem, and cas-
ual registered nurses whose duties primarily involve
ENLOE MEDICAL CENTER 471
providing patient care, i.e., those classified as “regis-
tered nurse” in the following areas: ambulatory ser-
vices, cardiac cath lab, cardio stepdown, behavioral
health, cancer center, extended care, children’s health,
prompt care, CT scanner, DCU, emergency, EOC-
cardio-pulmonary rehab, EOC-endoscopy clinic, EOC-
Infusion, EOC-prompt care, EOC-surgery, gastro-
intestinal, home care, hospice, ICU/CCU, interven-
tional radiology, med/surg oncology, medical/surgical
(also known as Medical East), med/surg ortho (also
known as Third Floor), N/TSICU, ob-maternity, pedi-
atrics, post-anesthesia care, radiation-oncology, radiol-
ogy, rehabilitation care, surgery services, SWAT (float
pool nurse), Touchstone (also known as Options for
Recovery), women’s services, and wound/ostomy ser-
vices; and breast educator nurse; diabetes educator
nurse; cardiovascular educator nurse; rehab intake co-
ordinator; relief charge nurses; and registered nurse
first assists, employed by the employer at its facilities
located at Esplanade Hospital at 1531 Esplanade,
Chico, California 95926; Cohasset Hospital at 560 Co-
hasset Road, Chico, California 95926; Rehabilitation
Center, at 340 West East Avenue, Chico, California
95926; Outpatient Center at 888 Lakeside Village
Commons, Chico, California 95928; Homecare &
Hospice at 1390 East Lassen Avenue, Chico, California
95973; and Children’s Health Center at 277 Cohasset
Road, Chico, California 95926. Excluding: all other
employees, office clerical employees; managerial em-
ployees; guards; outside registry nurses; “traveler” reg-
istered nurses; confidential employees nurse practitio-
ners; Case Managers, all other educators including
Acute Care Educator, Clinical Coordinator Educator,
Clinical Educator, and RN-Educator; Admitting Nurse;
Employee Health Nurse; Infection Control Nurse; Liai-
son Nurses; program manager, registered nurses at Los
Molinos clinic; registered nurses in Public Relations;
registered nurses employed in positions which do not
require current licensure as an RN; and supervisors as
defined in the Act, including but not limited to, Admin-
istrative House Supervisor, Charge Nurse, Chief Flight
Nurse/PCC, Clinical Coordinator, Clinical Director,
Coordinator-Projects (Surgery Services), Coordinator
(RN), Director, Manager, Nurse Directors, Quality Pro-
ject Coordinator, Quality/Risk/Trauma Coordinator
(Utilization Management), Supervisor-EOC, Trauma
Care Coordinator, Vice President Outpatient Services
and Vice President Surgical Services.
WE WILL NOT bypass the Union and deal directly with
employees in the bargaining unit concerning wages,
hours, and other terms and conditions of employment.
WE WILL NOT direct employees not to discuss working
conditions with other employees.
WE WILL NOT direct employees to talk to us about their
working conditions, rather than discussing them with
other unit employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
the rights guaranteed you by Section 7 of the Act.
WE WILL bargain in good faith with the Union as your
exclusive collective-bargaining representative concerning
the effects of our change in the on-call policy in the
Women’s Services Department.
ENLOE MEDICAL CENTER
Marilyn O’Rourke, Esq., for the General Counsel.
Laurence R. Arnold, Esq. (Foley and Lardner), of San Fran-
cisco, California, for the Respondent.
Donald Nielsen, Esq., Director, Arbitrations and Central Valley
California Nurses Association, of Fresno, California, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
JOHN J. MCCARRICK, Administrative Law Judge. This case
was tried in Chico, California, on October 28, 2003, upon the
General Counsel’s complaint that alleged Enloe Medical Center
(Respondent) violated Section 8(a)(1) and (5) of the Act by:
directing employees not to discuss working conditions with
other employees, by directing employees to talk to Respondent
about their working conditions, rather than discussing them
with other unit employees, by refusing to bargain with Califor-
nia Nurses Association (the Union) about the effects of its
change in on-call policy from voluntary to mandatory and by
dealing directly with employees regarding the effects of the
change in on-call policy. Respondent timely denied any
wrongdoing. On the entire record, including my observation of
the demeanor of the witnesses, and after considering the briefs
filed by the parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, with an office and place of busi-
ness in Chico, California (Respondent’s facility), has been en-
gaged in the operation of a hospital and medical clinics provid-
ing inpatient and outpatient medical care. During the past 12
months, Respondent in conducting its business operations de-
rived gross revenues in excess of $250,000 and purchased and
received goods valued in excess of $5000 which originated
outside the State of California. Respondent admits and I find
that it is an employer engaged 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. THE ISSUES
1. Did Respondent violate Section 8(a)(1) of the Act by:
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD472
(a) Directing employees not to discuss working conditions
with other employees?
(b) Directing employees to talk to Respondent about their
working conditions, rather than discussing them with other unit
employees?
2. Did Respondent violate Section 8(a)(1) and (5) of the Act
by:
(a) Refusing to bargain in good faith with the Union by fail-
ing to afford the Union an opportunity to bargain over the ef-
fects of its change in the on-call policy in the Women’s Ser-
vices Department?
(b) Refusing to bargain in good faith with the Union by by-
passing the Union and dealing directly with employees regard-
ing the effects of the change in on-call policy?
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. Introduction
Respondent is a hospital providing acute and outpatient care
services. Respondent’s Women’s Center consists of the labor
and delivery departments. Pam Sime (Sime) is Respondent’s
vice president of human resources, Peggy Chelgren-Smith
(Chelgren-Smith) is Respondent’s director of the Women’s
Center, and Jennifer Eddlemon (Eddlemon) is the clinical coor-
dinator of the Women’s Center.
Since on or about September 20, 2000,1 the Union has been
the certified collective-bargaining representative of Respon-
dent’s full-time, regular part-time, per diem, and casual regis-
tered nurses whose duties involve providing patient care at
Respondent’s facilities in Chico, California. Kevin Baker
(Baker) is the union representative at Respondent’s Chico fa-
cilities. Cindy Smith (Smith) and Cathe Lawson are registered
nurses and members of the bargaining unit.
2. The bargaining history
On July 8, 2002, the parties entered into an initial collective-
bargaining agreement (Agreement) effective by its terms from
January 14, 2002, to January 13, 2006.2 It is Respondent’s
position that several provisions in the Agreement reflect that the
Union waived its right to bargain over both the decision and ef-
fects of the decision to change Respondent’s on-call policy.
Those provisions are set forth below:
ARTICLE 2
MANAGEMENT RIGHTS
Except as otherwise specifically provided in this
Agreement, the Employer retains the sole and exclusive
right to exercise all the authority, rights and/or functions of
management. The Employer expressly retains the complete
and exclusive authority, right and power to manage its op-
erations and to direct its Nurses except as the terms of this
Agreement specifically limit said authority, rights and pow-
ers.
These retained authorities, rights and powers include,
but are not limited to:

1 All dates herein refer to 2003, unless otherwise noted.
2 R. Exh. 1.
Nurses.
The right to select and assign work to Nurses in accor-
dance with requirements as determined by management; to
determine the existence, amount or lack of work, to increase
or decrease the working forces; to determine the levels of
staffing and number of Nurses to be employed in each posi-
tion; to make and enforce reasonable rules for the mainte-
nance of technical standards, discipline, efficiency or safety;
to hire, promote, demote, transfer, layoff and recall Nurses;
to assign Nurses to duties and hours of work; to create or
discontinue job functions; to determine safety, health and
property protection measures; to maintain order and effi-
ciency in the Employer’s operations; to discharge, suspend
and otherwise discipline employees; to determine the quali-
fications required, size, composition and distribution of the
working force; to supervise and direct Nurses in the per-
formance of their duties; to set standards to insure the proper
and efficient use of the working force and equipment; and
otherwise to take such action management may determine to
be necessary for safe, orderly, and efficient and economical
operations. The Employer retains the sole and exclusive
right to establish from time to time and to maintain the rea-
sonable standards of performance required of bargaining
unit Nurses.
Agreement article 6, compensation and hours of work, section
h, on call and callback. This article provides for the method of
payment of on-call and call-back nurses,
ARTICLE 12
SCHEDULING
Section A Posting of Schedules
Nurses’ work schedules and days off must be posted at
least ten (10) days in advance of their commencement.
Section B Changes in Schedules
1. Once posted, the schedule will not be arbitrar-
ily changed. Nurses may change days off with other
Nurses in their classification and department/unit
who have equivalent skills and/or competencies,
provided overtime or other premium pay does not
result, and so long as the change is approved in ad-
vance in writing by the appropriate immediate su-
pervisor(s). Approval will not be unreasonably de-
nied.
ARTICLE 21
PERSONNEL AND OTHER POLICIES
The Employer’s human resource policies, operating
policies and other policies will continue to apply to covered
Nurses, provided they are not in conflict with the express
provisions of this Agreement. During the life of this
Agreement, the Employer may revise, withdraw or supple-
ment existing policies, and may promulgate and imple-
ment [emphasis added] additional policies, as it deems ap-
propriate. Covered nurses will be advised of any revised,
supplemented or new policies through posting, and will
ENLOE MEDICAL CENTER 473
receive a copy of the employee handbook and a copy of
any individual written revisions to the handbook. A copy
of revised, supplemented or new human resources policies
will also be forwarded to the Union.
Since the Agreement was ratified, Respondent has promul-
gated and implemented several policies, including policies on
floating, low census (daily layoffs), and major holidays off. In
addition Respondent combined two units to create one DCU
unit. There is no evidence that the Union requested bargaining
over these new policies.
3. The on-call policy
At the March 31 and April 1 monthly staff meetings in the
Women’s Center, Eddlemon told the nurses on her staff that she
intended to adopt a mandatory on-call policy.3 At the staff
meetings of April 30 and May 1, Eddlemon again announced
the change from a voluntary to a mandatory on-call policy for
nurses in the Women’s Center. She posted a copy of the policy
and said it would become effective with the next schedule. The
policy required the nurses in the Women’s Center to take one
mandatory 4-hour on-call shift every 4 weeks in addition to
their regular shift. Eddlemon said there would be a 30-minute
response time to get to work once an RN was called in to work.
When asked what would happen if a person lived more than 30
minutes away, Eddlemon said that if anyone had problems
meeting the time requirement, they should come to her and she
would individually work something out with that person. Ed-
dlemon told the nurses to come to see her if they had any ques-
tions concerning the new policy. During the second week in
May, Smith saw a message written on the white board in the
breakroom that stated if there were any questions about on-call
work, RNs should speak to Eddelmon. The new policy was
implemented on about May 10.
In early April, Union Representative Baker learned of the
on-call policy change and called Vice President of Human Re-
sources Sime. Baker asked Sime about the change and said
Respondent could not do it without going through the Union.
Sime replied that Respondent had done nothing yet. On May 7,
Sime e-mailed Baker and advised that Respondent was imple-
menting the new on-call policy on May 12. On May 9, Baker
e-mailed Sime and said, inter alia, “Enloe does not have the
‘right’ to change one’s working conditions without first bar-
gaining the impacts with the Union.”4 On May 12, Baker
learned that the on-call policy had been implemented. That day
Baker called Sime and asked her when Respondent was plan-
ning to sit down and bargain the impacts of this decision with
the Union. Sime replied that Respondent had no obligation to
bargain with the Union. On about May 14, Baker again asked
Sime if she was going to respond to his e-mail and whether
Respondent was going to sit down and bargain with the Union.
There has been no bargaining over the effects of Respon-
dent’s decision to implement the new on-call policy.

3 Until that time Respondent had a voluntary on-call policy in the
Women’s Center.
4 GC Exh. 6.
4. The alleged 8(a)(1) conduct
In late winter or early spring 2003, Eddlemon made a change
in the patient rand card, a written record used by nurses to pass
patient information from shift to shift. The change in the Rand
Card was a subject of discussion among the nurses in the
Women’s Center. In mid-April nurses Lawson and Smith met
with Eddlemon to discuss the change in the rand card. Both
Lawson and Smith expressed their dissatisfaction with the new
system and expressed concern for patient safety. Lawson said
the change was a violation of hospital policy. Eddlemon said
she would get the policy changed. Lawson and Smith also
discussed the proposed on-call policy change and said they did
not agree with it. Lawson said that there were too many
changes being handed down to the nurses and they were com-
plaining that they were overwhelmed and upset.
At the April 24 charge nurses’ meeting, the charge nurses
presented Eddlemon with their concerns, inter alia, that some of
the nurses were expressing negative attitudes and were com-
plaining at the nurses’ station. The four nurses named were:
Smith, Lawson, Pinkham, and Murphy. It was decided that
Eddlemon and Chelgren-Smith would “coach” Lawson and
Smith. Simes defined “Coaching” as mentoring an employee to
correct a potential concern. While not part of the disciplinary
process, coaching may lead to discipline if the “potential” prob-
lem is not corrected.5
On April 29 Smith and Lawson were called into separate
meetings with Chelgren-Smith and Eddlemon. Eddlemon read
a prepared written document to each nurse. The paragraph read
to Smith and Lawson was identical in text and stated:
Your co-workers have talked to me about how your
sometimes negative behavior affects all of the staff. For
example, here are some quotes: “she brings me down,
there is no team spirit, she is always complaining, some-
times I just can’t take it, it makes coming to work very dif-
ficult.”
I’m wondering if you perceive yourself as doing this.
Sometimes we do not recognize ourselves as others see us
and it can be enlightening and/or devastating to learn how
we are perceived by other. Once we know that, it is up to
us to make the necessary changes within ourselves so that
we are perceived by others in a more positive way.
We need you on our team and expect that your nega-
tive behavior will change. How can we help you through
this process?6
Both Smith and Lawson’s feedback was recorded on the pre-
pared document. It was noted that both Smith and Lawson
agreed to refrain from negative comments or complaining in the
nurses’ station. During the meeting, Eddlemon told Smith that
some of Smith’s coworkers had come to her complaining that
Smith had been complaining. Eddlemon said she did not want
that kind of attitude carried out in our department and that if
Smith had anything to complain about, she should complain
directly to Eddlemon.

5 GC Exh. 8, Procedure, Level 1—Verbal Counseling.
6 GC Exhs. 3 and 4.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD474
B. The Analysis
1. The 8(a)(1) allegations
It is well recognized that an employer violates Section
8(a)(1) of the Act by threatening an employee with reprisals for
discussing working conditions with other employees and by
telling employees to talk to employer representatives about
working conditions rather than other employees. It is well
established that Section 7 protects employees’ right to dis-
cuss such matters with each other. SKD Jonesville Division
L.P., 340 NLRB 101 (2003); Keller Ford, 336 NLRB 722
(2001). Accordingly, a blanket prohibition on such discus-
sions violates Section 8(a)(1), Hilton’s Environmental, Inc.,
320 NLRB 437 fn. 2 (1995).
Without context, the statements that Eddlemon read to both
Smith and Lawson on April 29 appear innocuous and unrelated
to union or protected-concerted activities. The statement ap-
pears to be dealing only with Smith and Lawson’s negative
attitudes are negatively affecting coworkers. Eddlemon did not
provide specific examples of Smith and Lawson’s negative
attitude. However, the record reflects that the only instances of
complaints and negative attitude of Smith and Lawson had to
do with their discussion of working conditions, including the
Rand cards and on-call policy, with their fellow nurses. Thus,
Eddlemon’s reference to negative attitudes and complaints must
have been about Smith and Lawson’s protected concerted activ-
ity. While Respondent may argue that the April 29 meetings
between Eddlemon, Smith and Lawson were not discipline but
only coaching, there is no dispute that this coaching could lead
to discipline if the behavior was not corrected.7 Eddlemon’s
“coaching” of Smith and Lawson amounted to a directive to
stop engaging in protected concerted activity or face formal
discipline. I find that Eddlemon’s April 29 “coaching” of Smith
and Lawson to cease complaining to fellow employees and to
come to management with their complaints violated Section
8(a)(1) of the Act.
2. The 8(a)(5) allegations
(a) The on-call policy and effects bargaining
There is no dispute that the Respondent’s decision to issue a
new on-call policy did not violate Section 8(a)(5) of the Act.
What is at issue is whether Respondent had an obligation to
bargain over the effects of the new on-call policy. Respondent
contends that Charging Party waived its right to bargain over
the effects of Respondent’s decision to institute the new on-call
policy both in the terms of the parties’ collective-bargaining
agreement and by failing to demand effects bargaining. Re-
spondent argues further that Federal court of appeals rather than
Board precedent should be followed in analyzing whether Re-
spondent had an obligation to engage in effects bargaining re-
garding the on-call policy change. Respondent urges the Board
to abandon its “clear and unmistakable waiver standard as set
forth in Good Samaritan Hospital, 335 NLRB 901 (2001), and
adopt Federal courts of appeals law.8 It is unnecessary to ad-

7 See fn. 5, supra.
8 See Gratiot Community Hospital v. NLRB, 51 F.3d 1255 (6th Cir.
1995); NLRB v. Postal Service, 8 F.3d 832, 836 (D.C. Cir. 1993).
dress Respondent’s argument. When there is a conflict between
court and Board law, the Board’s duty to apply uniform policies
under the Act, as well as the Act’s venue provisions for review
of Board decisions, preclude the Board from acquiescing in
contrary decisions by the courts of appeals. Tim Foley Plumb-
ing Service, 337 NLRB 328 fn. 5 (2001); Sandusky Mall, 329
NLRB 618 fn. 10 (1999). Thus, I am bound to follow Board
precedent rather than contrary precedents of the courts of ap-
peals.
It is well settled that a union does not waive its statutory bar-
gaining rights unless it has done so in a manner that is both
clear and unmistakable. Metropolitan Edison Co. v. NLRB, 460
U.S. 693, 708 (1983). In evaluating whether there has been a
clear and unmistakable waiver, both the Board and courts look
to the precise wording of the relevant contract provisions to
determine if the waiver is clear and unmistakable. Generalized
management-rights clauses that do not refer to any particular
subject area do not operate as waivers of statutory bargaining
rights. In Johnson-Bateman Co., 295 NLRB 180, 184 (1969),
the Board found that the reservation in a management-rights
clause of an employer’s unilateral right to issue, enforce, and
change company rules did not constitute a waiver of the union’s
right to bargain about the implementation of drug/alcohol test-
ing of current employees, because there was no specific refer-
ence in that clause to drug/alcohol testing. Also, in Control
Services, 303 NRLB 481, 483–484 (1991), the Board found
that the management-rights clause, which reserved to the em-
ployer the right to schedule hours of work and to relieve em-
ployees of duty, did not grant the employer the unilateral right
to reduce employees’ hours, because the union did not specifi-
cally waive its right to bargain over the number of hours em-
ployees would work.
In Good Samaritan Hospital, 335 NLRB 901 (2001), the
Board found that the charging party union waived its right to
bargain over the implementation (emphasis added) of a staffing
matrix for registered nurses in a collective-bargaining agree-
ment. The Board concluded that the collective-bargaining lan-
guage underlined below evidenced the Union’s waiver. In this
regard the pertinent provision of the collective-bargaining
agreement stated:
SECTION 1. IN GENERAL Except as specifically
abridged by express provision of this Agreement, nothing
herein shall be interpreted as interfering in any way with
the Hospital’s right to determine and direct the policies,
modes, and methods of providing patient care, to decide
the number of employees to be assigned to any shift or job,
[emphasis added] or the equipment to be employed in the
performance of such work, to employ registry or traveling
nurses when necessary to supplement staffing, to float em-
ployees from one working area to another working area
within the division in which they are qualified to work, or
to determine appropriate staffing levels.[emphasis added]
Thus, the hospital reserves and retains, solely and exclu-
sively, all the rights, privileges and prerogatives which it
would have in the absence of this Agreement, except to the
extent that such rights, privileges and prerogatives are spe-
ENLOE MEDICAL CENTER 475
cifically abridged by express provisions of this Agree-
ment.
. . . .
SECTION 2. ELABORATION OF RIGHTS In expan-
sion rather than in limitation of the foregoing Section A,
the Hospital shall have the following unilateral rights: (A)
To determine the number, location, and types of facilities;
(B) To subcontract any of the work or service; (C) To se-
lect, hire, and train employees, and to discipline and dis-
charge employees for just cause; (D) To adopt, add to,
amend, change or rescind any reasonable Hospital work
rules.9
Notwithstanding this contract provision, the Board held that the
union had not waived its right to effects bargaining. The Board
stated:
On the other hand, we find that there was no waiver of the
Respondent’s obligation to bargain about the effects of its de-
cision to implement [emphasis added] new staffing matrices.
Contractual language waiving a Union’s bargaining rights as
to a certain decision does not constitute a waiver of the right
to bargain over that decision’s effects. Even when the em-
ployer has no statutory obligation to bargain regarding a busi-
ness decision because it does not involve “wages, hours, and
other terms and conditions of employment” under Section
8(d), the Board has found a duty to bargain over effects. An
employer has an obligation to give a union notice and an op-
portunity to bargain about the effects on unit employees of a
managerial decision even if it has no obligation to bargain
about the decision itself. KIRO, Inc., 317 NLRB 1325, 1327
(1995), citing First National Maintenance Corp. v. NLRB,
452 U.S. 666, 681–682 (1981). Although in the present case
we have found that the Respondent is not obligated to bargain
concerning its decision based on the Union’s waiver, rather
than because the decision does not fall within the statutory
scope of bargaining, the principle remains the same. In the ab-
sence of a clear and unmistakable waiver by the Union con-
cerning effects bargaining, such bargaining is still required.
We find no clear and unmistakable waiver as to effects bar-
gaining in this case.10
The Board added, “The Respondent had an obligation to bar-
gain about effects, on the Union’s request, as long as there were
alternatives that the parties could explore without calling into
question the Respondent’s underlying, nonbargainable decision.
See, e.g., Bridon Cordage, Inc., 329 NLRB 258 (1999). The
Respondent has failed to establish here that there are no bar-
gainable alternatives.”11
Respondent argues that Agreement articles 2, 6H, 12, and 21
demonstrate that the Union clearly and unmistakably waived its
right to effects bargaining over the new on-call policy. How-
ever, a comparison of the Agreement articles Respondent cites
with the contract provisions in Good Samaritan Hospital, su-
pra, results in a contrary conclusion.

9 Good Samaritan Hospital, supra at 902.
10 Id.
11 Id. at 903–904.
Agreement articles 2, 6H, and 12 make no reference to a
waiver by the Union of the right to bargain over the effects of
Respondent’s on-call policy. Under First National Mainte-
nance, supra; Good Samaritan, supra; Control Services, supra;
and Johnson-Bateman, supra, the requisite specificity in waiv-
ing the right to bargain over the on-call policy is lacking.
While Agreement article 21 references the right to promul-
gate and implement new human relations policies that apply to
nurses, arguably giving rise to the Union’s waiver of the right
to bargain over the implementation of the new on-call policy, it
does not operate as a waiver by the Union of its right to bargain
over the effects of Respondent’s implementation of the new on-
call policy. There is no mention of a waiver of the right to
effects bargaining over on-call policy. Respondent cannot rely
on the generalized right to promulgate and implement new
policy to refuse to engage in effects bargaining over the on-call
policy. In this regard, Respondent’s reliance on the use of the
term “implementation” in article 21 is misplaced. Respondent
would have me parse the term “implementation” to mean the
Union waived the right to effects bargaining. This is a miscon-
struction of the term implementation as it has been applied by
the Board. Respondent confuses implementation, i.e., putting
into effect with effects bargaining. The Board has used the
term implementation in conjunction with bargaining over deci-
sions, as in “to implement [emphasis added] new staffing matri-
ces.” or the “effects of its decision to implement [emphasis
added] new staffing matrices.” Good Samaritan Hospital, supra
at 902. The Board used the term implement similarly in King
Soopers, supra at 1, in stating “The Respondent did not notify
or bargain with the Union before implementing [emphasis
added] the policy.” I find that the Union has neither clearly nor
unmistakably waived its right in the terms of the Agreement to
bargain over the effects of Respondent’s decision to implement
the new on-call policy.
Respondent also contends that by its failure to demand ef-
fects bargaining when Respondent has implemented other pol-
icy in the past and by waiving the right to receive notices of
policy changes other than human relations policy, the Union
has shown it waived its right to effects bargaining over the on-
call policy.
A union may waive its right to bargain about mandatory sub-
jects in any of three ways: by express provision in the collec-
tive-bargaining agreement, which I have concluded did not
occur as to effects bargaining, by the conduct of the parties
(including past practice, bargaining history, and action or inac-
tion), or by a combination of the two. United Technologies
Corp., 274 NLRB 504, 507 (1985).
Initially, contrary to Respondent’s assertion, I find there is
no evidence the Union waived its right to receive notices of
policy changes. The language in Agreement article 21 is cer-
tainly not sufficiently specific with respect to waiver of receiv-
ing notices of policy changes to operate as a waiver.
Moreover, there is no bargaining history concerning the on-
call policy other than the manner in which rates of pay are cal-
culated. The evidence adduced at the hearing concerning past
practice establishes only that Respondent has notified the Un-
ion about schedule changes and the Union has acquiesced in the
changes. It is clear that past acquiescence to previous changes
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD476
does not operate to waive a union’s right to bargain over future
changes. Owens-Brockway Plastic, 311 NLRB 519, 526
(1993). I find that there has been no waiver of the right to ef-
fects bargaining over on-call policy by past bargaining history
or conduct.
Respondent next argues that under Good Samaritan because
Union Representative Baker could not give examples of any
bargainable effects, there were no alternatives the parties could
have explored without calling into question Respondent’s un-
derlying non bargainable decision. Respondent cannot rely on
Baker’s courtroom enumeration of alternatives to satisfy its
burden under Good Samaritan that there were no alternatives.
Indeed the Board has indicated it is not proper to prejudge the
range of alternative bargaining subjects prior to bargaining.
“The obligation to provide the Union with notice and an oppor-
tunity to bargain about effects is not conditioned on [a] view
. . . as to what, if any effects will be identified or how they will
be resolved by the parties.”12
Respondent next in order contends that the Good Samaritan
rule is inapplicable in cases where the union waived its right to
bargain over the decision. Respondent essentially argues that
the Board should change the rule in Good Samaritan because it
is absurd to distinguish between an employer’s decision to im-
plement rules and their effects. The only case Respondent cites
to support this novel theory is Peerless Publications, Inc., 283
NLRB 334 (1987). However, the Board has found that Peer-
less Publications is of limited applicability outside the narrow
factual situation presented in the newspaper industry.13 I find
no support for Respondent’s argument.
Finally Respondent argues that the Union did not demand
bargaining over the effects of the on-call policy. While Board
law is clear that a union must make a timely demand for bar-
gaining,14 it is also clear that a union is absolved from that re-
quirement when the employer presents the union with a fait
accompli by implementing a decision without prior timely no-
tice of the decision to implement.15
First, I find that the Union made a timely request to bargain
over the effects of Respondent’s implementing the new on-call
policy. On May 9, Baker e-mailed Sime and said, inter alia,
“Enloe does not have the ‘right’ to change one’s working con-
ditions without first bargaining the impacts with the Union.” A
reasonable reading of this e-mail indicates that Respondent was
put on notice that the Union was demanding bargaining before
the on-call policy was implemented. Moreover, Baker’s uncon-
tradicted, credited testimony was that he demanded effects
bargaining on May 12, when Baker called Sime and asked her
when Respondent was planning to sit down and bargain the
impacts of this decision with the Union. Sime replied that Re-
spondent had no obligation to bargain with the Union. Again
on about May 14, Baker again asked Sime if she was going to
respond to his e-mail and whether Respondent was going to sit
down and bargain with the Union.

12 Id.
13 King Soopers, Inc., 340 NLRB 628 (2003).
14 Lenz & Riecke, 340 NLRB 143, 146 (2003).
15 Bridon Cordage, 329 NLRB 258 (1999).
Assuming, arguendo, that Baker’s May 9 e-mail was not a
sufficient demand for bargaining, I find that the requirement to
demand bargaining was absolved by Sime’s May 7 e-mail that
presented Baker with the fait accompli that Respondent was
implementing the new on-call policy on May 12. Moreover,
Sime’s statement on May 12 that Respondent did not have to
bargain with the Union establishes Respondent had no intent to
bargain, further absolving the Union of the requirement to de-
mand effects bargaining.
(b) Respondent’s direct dealing and bypassing the Union
Whether Respondent has engaged in unlawful direct dealing
with its employees in violation of Section 8(a)(5) and thereby
bypassed the Union, it must be shown that Respondent is com-
municating with its represented employees and that the discus-
sion is for the purpose of establishing or changing the wages,
hours, and terms and conditions of employment within the
meaning of Section 8(d) to the exclusion of the Union; South-
ern California Gas Co., 316 NLRB 979, 982 (1995); Obie Pa-
cific, 196 NLRB 458, 459 (1972).
The General Counsel argues that Respondent bypassed the
Union and dealt directly with represented employees in early
May, when Eddlemon told employees that they should come to
her and she would individually work something out with that
person and that the nurses should come to see her if they had
any questions concerning the new [on call] policy and in the
second week of May when Respondent placed a message on the
white board in the breakroom that stated if there were any ques-
tions about on-call work, RNs should speak to Eddlemon. Re-
spondent argues there was no direct dealing.
There is no dispute that Eddlemon communicated with em-
ployees represented by the Union in May about the new on-call
policy. At the May staff meetings, in response to a question
about the 30 minutes a nurse was given to report to work after
being called for those nurses who lived more than 30 minutes
from the hospital, Eddlemon replied that the nurses should
come to her to work something out. The purpose of the discus-
sion dealt with a mandatory subject of bargaining, i.e., changing
the response time to report to work. This is precisely the type of
adjustment that was contemplated in Good Samaritan without
effecting the underlying decision to institute a mandatory on-call
policy. By arrogating to itself the adjustment of the effects of the
on-call policy to the exclusion of the Union, Respondent dealt
directly with the represented employees and bypassed the Union
in violation of Section 8(a)(5) of the Act.
CONCLUSION OF LAW
By directing employees not to discuss working conditions with
other employees, by directing employees to talk to Respondent
about their working conditions rather than discussing them with
other employees, by refusing to bargain in good faith with the
Union by failing to afford the Union an opportunity to bargain
over the effects of its change in the on-call policy in the
Women’s Services Department and by bypassing the Union and
dealing directly with employees regarding the effects of the
change in the on-call policy, Respondent has engaged in unfair
labor practices affecting commerce within the meaning of Sec-
tion 8(a)(1) and (5) and Section 2(6) and (7) of the Act.
ENLOE MEDICAL CENTER 477
REMEDY
Having found that 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.
Respondent must bargain with the Union as the exclusive rep-
resentative of the employees in the following appropriate unit
concerning terms and conditions of employment and, if an under-
standing is reached, embody the understanding in a signed
agreement:
All full-time and regular part-time, per diem, and casual reg-
istered nurses whose duties primarily involve providing pa-
tient care, i.e., those classified as “registered nurse’ in the
following areas: ambulatory services, cardiac cath lab,
cardio stepdown, behavioral health, cancer center, extended
care, children’s health, prompt care, CT scanner, DCU,
emergency, EOC-cardio-pulmonary rehab, EOC-endoscopy
clinic, EOC-Infusion, EOC-prompt care, EOC-surgery, gas-
tro-intestinal, home care, hospice, ICU/CCU, interventional
radiology, med/surg oncology, medical/surgical (also
known as Medical East), med/surg ortho (also known as
Third Floor), N/TSICU, ob-maternity, pedicatrics, post-
anesthesia care, radiation-oncology, radiology, rehabilitation
care, surgery services, SWAT (float pool nurse), Touch-
stone (also known as Options for Recovery), women’s ser-
vices, and wound/ostomy services: and breast educator
nurse; diabetes educator nurse; cardiovascular educator
nurse; rehab intake coordinator; relief charge nurses; and
registered nurse first assists, employed by the employer at
its facilities located at Esplanade Hospital at 1531 Espla-
nade, Chico, California 95926; Cohasset Hospital at 560
Cohasset Road, Chico, California 95926; Rehabilitation
Center at 340 West East Avenue, Chico, California 95926;
Outpatient Center at 888 Lakeside Village Commons,
Chico, California 95928; Homecare & Hospice at 1390 East
Lassen Avenue, Chico, California 95973; and Children’s
Health Center at 277 Cohasset Road, Chico, California
95926. Excluding: all other employees, office clerical em-
ployees; managerial employees; guards; outside registry
nurses; “traveler” registered nurses; confidential employees
nurse practitioners; Case Managers, all other educators in-
cluding Acute Care Educators, Clinical Coordinator Educa-
tor, Clinical Educator, and RN-Educator; Admitting Nurse;
Employee Health Nurse; Infection Control Nurse; Liaison
Nurses; program manager, registered nurses at Los Molinos
clinic; registered nurses in Public Relations; registered
nurses employed in positions which do not require current
licensure as an RN; and supervisors as defined in the Act,
including but not limited to, Administrative House Supervi-
sor, Charge Nurse, Chief Flight Nurse/PCC, Clinical Coor-
dinator, Clinical Director, Coordinator-Projects (Surgery
Services), Coordinator (RN), Director, Manager, Nurse Di-
rectors, Quality Project Coordinator, Quality/Risk/Trauma
Coordinator (Utilization Management), Supervisor-EOC,
Trauma Care Coordinator, Vice President Outpatient Ser-
vices and Vice President Surgical Services,
On these findings of fact and conclusions of law and on the en-
tire record, I issue the following recommended16
ORDER
The Respondent, Enloe Medical Center, Inc., Chico, Califor-
nia, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing to bargain in good faith with the Union as the ex-
clusive representative of our employees in the following appro-
priate unit:
All full-time and regular part-time, per diem, and casual reg-
istered nurses whose duties primarily involve providing pa-
tient care, i.e., those classified as “registered nurse’ in the
following areas: ambulatory services, cardiac cath lab,
cardio stepdown, behavioral health, cancer center, extended
care, children’s health, prompt care, CT scanner, DCU,
emergency, EOC-cardio-pulmonary rehab, EOC-endoscopy
clinic, EOC-Infusion, EOC-prompt care, EOC-surgery, gas-
tro-intestinal, home care, hospice, ICU/CCU, interventional
radiology, med/surg oncology, medical/surgical (also
known as Medical East), med/surg ortho (also known as
Third Floor), N/TSICU, ob-maternity, pedicatrics, post-
anesthesia care, radiation-oncology, radiology, rehabilitation
care, surgery services, SWAT (float pool nurse), Touch-
stone (also known as Options for Recovery), women’s ser-
vices, and wound/ostomy services: and breast educator
nurse; diabetes educator nurse; cardiovascular educator
nurse; rehab intake coordinator; relief charge nurses; and
registered nurse first assists, employed by the employer at
its facilities located at Esplanade Hospital at 1531 Espla-
nade, Chico, California 95926; Cohasset Hospital at 560
Cohasset Road, Chico, California 95926; Rehabilitation
Center at 340 West East Avenue, Chico, California 95926;
Outpatient Center at 888 Lakeside Village Commons,
Chico, California 95928; Homecare & Hospice at 1390 East
Lassen Avenue, Chico, California 95973; and Children’s
Health Center at 277 Cohasset Road, Chico, California
95926. Excluding: all other employees, office clerical em-
ployees; managerial employees; guards; outside registry
nurses; “traveler” registered nurses; confidential employees
nurse practitioners; Case Managers, all other educators in-
cluding Acute Care Educators, Clinical Coordinator Educa-
tor, Clinical Educator, and RN-Educator; Admitting Nurse;
Employee Health Nurse; Infection Control Nurse; Liaison
Nurses; program manager, registered nurses at Los Molinos
clinic; registered nurses in Public Relations; registered
nurses employed in positions which do not require current
licensure as an RN; and supervisors as defined in the Act,
including but not limited to, Administrative House Supervi-
sor, Charge Nurse, Chief Flight Nurse/PCC, Clinical Coor-
dinator, Clinical Director, Coordinator-Projects (Surgery
Services), Coordinator (RN), Director, Manager, Nurse Di-

16 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD478
rectors, Quality Project Coordinator, Quality/Risk/Trauma
Coordinator (Utilization Management), Supervisor-EOC,
Trauma Care Coordinator, Vice President Outpatient Ser-
vices and Vice President Surgical Services,
(b) Bypassing the Union and dealing directly with bargaining
unit employees concerning wages, hours and other terms and-
conditions of employment.
(c) Directing employees not to discuss working conditions
with other employees.
(d) Directing employees to talk to Respondent about their
working conditions, rather than discussing them with other unit
employees.
(e) In any like or related manner interfere with, restrain, or co-
erce employees in the exercise of rights guaranteed them by Sec-
tion 7 of the Act.
2. Take the following affirmative action necessary to effectu-
ate the policies of the Act.
(a) On request, bargain with the Union as the exclusive repre-
sentative of the employees in the following appropriate unit con-
cerning terms and conditions of employment and, if an under-
standing is reached, embody the understanding in a signed
agreement:
All full-time and regular part-time, per diem, and casual reg-
istered nurses whose duties primarily involve providing pa-
tient care, i.e., those classified as “registered nurse’ in the
following areas: ambulatory services, cardiac cath lab,
cardio stepdown, behavioral health, cancer center, extended
care, children’s health, prompt care, CT scanner, DCU,
emergency, EOC-cardio-pulmonary rehab, EOC-endoscopy
clinic, EOC-Infusion, EOC-prompt care, EOC-surgery, gas-
tro-intestinal, home care, hospice, ICU/CCU, interventional
radiology, med/surg oncology, medical/surgical (also
known as Medical East), med/surg ortho (also known as
Third Floor), N/TSICU, ob-maternity, pedicatrics, post-
anesthesia care, radiation-oncology, radiology, rehabilitation
care, surgery services, SWAT (float pool nurse), Touch-
stone (also known as Options for Recovery), women’s ser-
vices, and wound/ostomy services: and breast educator
nurse; diabetes educator nurse; cardiovascular educator
nurse; rehab intake coordinator; relief charge nurses; and
registered nurse first assists, employed by the employer at
its facilities located at Esplanade Hospital at 1531 Espla-
nade, Chico, California 95926; Cohasset Hospital at 560
Cohasset Road, Chico, California 95926; Rehabilitation
Center at 340 West East Avenue, Chico, California 95926;
Outpatient Center at 888 Lakeside Village Commons,
Chico, California 95928; Homecare & Hospice at 1390 East
Lassen Avenue, Chico, California 95973; and Children’s
Health Center at 277 Cohasset Road, Chico, California
95926. Excluding: all other employees, office clerical em-
ployees; managerial employees; guards; outside registry
nurses; “traveler” registered nurses; confidential employees
nurse practitioners; Case Managers, all other educators in-
cluding Acute Care Educators, Clinical Coordinator Educa-
tor, Clinical Educator, and RN-Educator; Admitting Nurse;
Employee Health Nurse; Infection Control Nurse; Liaison
Nurses; program manager, registered nurses at Los Molinos
clinic; registered nurses in Public Relations; registered
nurses employed in positions which do not require current
licensure as an RN; and supervisors as defined in the Act,
including but not limited to, Administrative House Supervi-
sor, Charge Nurse, Chief Flight Nurse/PCC, Clinical Coor-
dinator, Clinical Director, Coordinator-Projects (Surgery
Services), Coordinator (RN), Director, Manager, Nurse Di-
rectors, Quality Project Coordinator, Quality/Risk/Trauma
Coordinator (Utilization Management), Supervisor-EOC,
Trauma Care Coordinator, Vice President Outpatient Ser-
vices and Vice President Surgical Services,
(b) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board or
its agents, all payroll records, social security payment records,
timecards, personnel records and papers, and all other records,
including an electronic copy of such records if stored in elec-
tronic form necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Within 14 days after service by the Region, post at its facil-
ity in Chico, California, copies of the attached notice marked
“Appendix.”17 Copies of the notice, on forms provided by the
Regional Director for Region 20 after being signed by the Re-
spondent’s authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for 60 con-
secutive 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 Respondent 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 April
29, 2003.
(d) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.

17 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.”