Hartford Hospital

National Labor Relations Board - Board Decisions

Jul 31, 1995

318 N.L.R.B. 183 (N.L.R.B. 1995)

183
318 NLRB No. 13
HARTFORD HOSPITAL
1 On May 5, 1995, Administrative Law Judge Wallace H. Nations
issued the attached decision. The Respondent filed exceptions and a
supporting brief, the General Counsel filed an answering brief, and
the Respondent filed a brief in reply.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
2 The Respondent has requested oral argument. The request is de-
nied as the record, exceptions, and briefs adequately present the
issues and the positions of the parties.
3 In the remedy section of his decision, the judge mistakenly or-
dered that any backpay owing be computed in accordance with the
formula set forth in F. W. Woolworth Co., 90 NLRB 289 (1950).
The correct formula is as set forth in Ogle Protection Service, 183
NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971).
Hartford Hospital and New England Health Care
Employees Union, District 1199, AFL–CIO.
Case 34–CA–6785
July 31, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND TRUESDALE
The issue in this case1 is whether the judge correctly
found that the Respondent violated Section 8(a)(5) and
(1) of the Act by refusing to bargain with the Union
as the exclusive representative of a unit of technical
employees in a psychiatric hospital, after that hospital
merged with and became a wholly owned subsidiary of
the Respondent. 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,2
and conclusions and to adopt the recommended Order.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Hartford Hospital, Hart-
ford, Connecticut, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.
Craig Cohen, Esq., for the General Counsel.
Brian Clemow, Esq., Scott D. Macdonald, Esq., and Ray-
mond M. Bernstein, Esq., of Hartford, Connecticut, for the
Respondent.
John M. Creane, Esq. and Michael E. Passero, Esq., of Mil-
ford, Connecticut, for the Charging Party.
DECISION
STATEMENT OF THE CASE
WALLACE H. NATIONS, Administrative Law Judge. New
England Health Care Employees Union, District 1199, AFL–
CIO (the Union) filed a charge on October 24, 1994, and an
amended charge on November 21, 1994, alleging that Hart-
ford Hospital (Respondent) is engaging in unfair labor prac-
tices. On December 8, the Regional Director for Region 34
issued a complaint and notice of hearing wherein Respondent
is alleged to have engaged in activity in violation of Section
8(a)(1) and (5) of the National Labor Relations Act: (1) by
refusing to recognize and bargain with the Union as the rep-
resentative of a unit of employees formerly employed by a
psychiatric hospital, the Institute of Living (IOL), after a
merger of the Respondent and IOL on October 1, 1994; and,
(2) unilaterally instituting changes in those employees’ wages
and working conditions without affording the Union notice
and the opportunity to bargain.
A hearing was held in this matter on March 13 and 14,
1995. Briefs and reply briefs were received from the parties
on April 14, 1995. By letter dated April 19, 1995, Respond-
ent objected to the General Counsel’s reply brief, contending
it asserted a new theory that the General Counsel had dis-
avowed at hearing. For his part, the General Counsel filed
a motion shortly thereafter seeking to strike the letter. The
motion to strike is granted for the reasons asserted in the mo-
tion.
Pending before Chief Judge Peter C. Dorsey, United States
District Court for the District of Connecticut, is a petition
dated December 29, 1994, filed pursuant to Section 10(j) of
the Act, which alleges the same violations of the Act as in-
volved here. On March 30, 1995, Chief Judge Dorsey grant-
ed the Regional Director’s petition for preliminary injunction
pending final resolution of this matter by the Board by di-
recting Respondent to: (a) recognize and bargain, exclusively
and in good faith, with the Union about terms and conditions
of its members’ employment; (b) bargain about any union re-
quest for restoration of terms and conditions of employment
prevailing at IOL before the merger; (c) post and maintain
copies of the district court’s order where other employee no-
tices are posted, pending the Board’s proceedings and any
appeals thereof, and allow the Union to monitor compliance.
Based on the entire record in this proceeding, including
the demeanor of the witnesses, and after consideration of the
briefs, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent Hartford Hospital, a nonprofit Connecticut
corporation with offices and a place of business in Hartford,
Connecticut, has been engaged in the operation of an acute
care hospital. The Institute of Living, a nonprofit Connecticut
corporation with offices and a place of business in Hartford,
Connecticut, has been engaged in the operation of a psy-
chiatric hospital. It is admitted, and I find, that at all material
times, Respondent and IOL have each been employers en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act, and each have been health care institu-
tions within the meaning of Section 2(14) of the Act.
II. THE INVOLVED LABOR ORGANIZATION
It is admitted and I find that the Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues Presented for Determination
A brief recitation of background facts will make the issues
in this case clear. On March 5, 1981, the Union was certified
as the exclusive collective-bargaining representative of a unit
of employees of IOL. From about March 5, 1981, until about
184 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
September 30, 1994, the Union was recognized by the IOL
as the exclusive collective-bargaining representative of the
unit employees, and such recognition was embodied in suc-
cessive collective-bargaining agreements, the most recent of
which was effective from June 15, 1992, to June 14, 1994.
The IOL and Hartford Hospital merged on October 1, 1994,
with the IOL becoming a wholly owned subsidiary of Re-
spondent. The complaint alleges that following the merger,
IOL has continued to exist in basically unchanged form. Al-
ternatively, the complaint alleges that about October 1, Re-
spondent assumed the business of IOL at the IOL facility and
since that date has continued to operate the business of IOL
in basically unchanged form and has employed as a majority
of its employees at the IOL facility individuals who were
previously employees of IOL.
The complaint further alleges that Respondent has contin-
ued as the employing entity and is a successor of IOL at the
IOL facility and that at all time since October 1, 1994, the
Union has been the exclusive collective-bargaining represent-
ative of Respondent’s employees in the unit. About Septem-
ber 29, 1994, the Union, by letter, requested that Respondent
recognize it as the exclusive collective-bargaining representa-
tive of the unit and bargain collectively with it over the
wages, terms, and conditions of employment of the unit em-
ployees. Since about October 1, 1994, Respondent has failed
and refused to recognize and bargain with the Union. Since
about October 1, 1994, Respondent has made numerous
changes in the terms and conditions of employment of em-
ployees in the unit, including but not limited to, increasing
wages, changing the method for computing paid time off,
and implementing different pension and health plans. Re-
spondent made such unilateral changes without affording the
Union an opportunity to bargain over them. By its conduct,
the Respondent is alleged to have violated Section 8(a)(1)
and (5) of the Act.
The Respondent asserts it has no obligation to recognize
and bargain with the Union primarily because it contends
that since the merger the former IOL bargaining unit is no
longer a legally appropriate one. It contends that the only ap-
propriate unit would be a far larger one, encompassing all
Hartford Hospital employees falling within the job classifica-
tions set out in the unit description, or a hospitalwide unit
falling within one of the eight acute care health facility unit
descriptions contained in the Board’s Rules and Regulations.
For the reasons that are detailed below, I ultimately agree
with the position urged by the Union and the General Coun-
sel. Though both sides to this dispute find substantial support
for their positions in existing case law, only the position as-
serted by the General Counsel will give effect to the public
policies of the Act. If that position is accepted, the 14-year-
old bargaining unit, which is maintained virtually intact after
the merger, will continue to have the Union’s representation.
Because this unit is effectively segregated from the Hos-
pital’s other employees, there is no evidence that any labor
dispute that might occur between the unit and the Hospital
will spread to other of the Hospital’s employees. There is
likewise so little contact between the unit employees and the
other hospital employees that differences in wages and work-
ing conditions that might result from collective bargaining
should not prove to be a source of employee unrest. On the
other hand, to deny the continuation of representation to the
former IOL bargaining unit clearly might lead to unrest
among its members and result in labor turmoil. I believe it
is of utmost importance to keep the policies and purposes of
the Act in mind when viewing this case lest one may become
lost in the legal minutiae cast out by the parties.
B. Background Facts About the Involved Entities
The IOL, prior to October 1994, was a private psychiatric
hospital, with its main campus located on 34 acres of land
bordering Washington Street and Retreat Avenue in Hartford,
Connecticut. On this property are located several connected
and unconnected buildings, including locked psychiatric
units, as well as some open space and forested areas. IOL
also operated four residential group homes known as ‘‘transi-
tional living facilities,’’ two of which are located on the
main campus, and two of which are located in the surround-
ing community, one two blocks south of the campus and one
on the north side of Retreat Avenue, immediately adjacent to
the main Hartford Hospital campus. Both prior to October
1994 and after, IOL provided a wide variety of in-patient and
out-patient psychiatric services from its main campus and its
outlying facilities. Since March 5, 1981, based on a Board
certification, the Union has represented the employees of
IOL at both its main campus and outlying facilities in the
following unit:
All full-time and regular part-time technical employees,
including LPN’s, psychiatric technicians, residential
counselors, rehabilitation liaison instructors, rehabilita-
tion instructors, COTA’s, EEG technicians, X-Ray tech-
nicians, and dental technicians employed at the IOL fa-
cility, but excluding unit coordinators, rehabilitation co-
ordinators, electronics technician, audio-visual techni-
cian, dietary technician, all service and maintenance
employees, clerical employees and guards, professional
employees and supervisors as defined in the Act.
At the time of certification the unit consisted of approxi-
mately 250 employees employed in the various classifica-
tions noted in the unit description. Through attrition and lay-
offs that have occurred over the past 14 years, as of March
1995 there are approximately 85–90 former bargaining unit
employees who remain employed at the IOL. Within that
group there are approximately 27 residential counselors, 55
psychiatric technicians, 1 X-ray technician, 1 EEG techni-
cian, and 2 rehabilitation liaison instructors. Notwithstanding
the job classifications certified by the Board and enumerated
in the collective-bargaining agreement, there were no other
employees employed by IOL in any other bargaining unit
classifications except as noted above. The most recent collec-
tive-bargaining agreement between the Union and IOL was
effective from June 15, 1992, to June 14, 1994. Former bar-
gaining unit employees work in four in-patient psychiatric
units located in the Donnelly building on the IOL campus,
as well as in the on-campus and off-campus transitional liv-
ing facilities. In its last full fiscal year prior to its acquisition,
the IOL’s budget was approximately $32 million and it had
approximately 525 full-time employees. The IOL had about
427 licensed beds, of which just 110 were staffed.
Hartford Hospital is a large acute care facility with ap-
proximately 950 beds, of which about 650 were staffed and
fully operational. It is located on about 22 acres in down-
town Hartford, across the street from one side of the IOL
185HARTFORD HOSPITAL
main campus. Its campus consists of several buildings and an
unconnected parking lot. The Hospital offers a wide variety
of patient services at its facility, including in-patient psy-
chiatric services in an unlocked unit with approximately 40
beds. Prior to October 1994, this unit was located in the
Conklin building on the Hartford Hospital main campus and
was commonly referred to as CB-2. In addition to its in-pa-
tient psychiatric service, Hartford Hospital offered a small
day treatment program, a psychiatric emergency room, and a
‘‘consultation liaison service,’’ which provides an interface
between general medicine and psychiatry for patients with
both mental health and medical problems.
In its last full fiscal year prior to the acquisition of the
IOL, the Hospital’s budget was approximately $380 million
and it had approximately 4700 full-time employees.
C. The Events Leading to the Merger
For several years immediately preceding its combination
with the Hospital, the IOL had been hurt by payor-driven
changes in the mental health field. The constraints placed by
insurance companies on the utilization of mental health serv-
ices resulted in dramatic decreases both in the number of pa-
tients at the IOL and in the average length of their stays. As
a consequence, from 1990 to 1993, IOL’s inpatient days de-
clined from approximately 120,000 to 40,000. Cost-cutting
efforts, while helpful, did not address the more fundamental
trends in the medical marketplace afflicting the IOL. Thus,
despite eight reductions-in-force since 1989 that had brought
its complement of full-time employees from 1050 to 525, the
IOL operated at a loss every fiscal year since 1989. In its
last full fiscal year as an independent enterprise, the IOL lost
over a million dollars.
In order to avoid a continuation of this trend, the IOL
began a strategic planning process in 1992 that sought to de-
termine its long-term viability as an independent, stand-alone
psychiatric hospital. The conclusion reached by the IOL’s
management was that the IOL would not long survive with-
out becoming part of a larger, regional system of care that
included primary medicine in addition to psychiatry and,
more importantly, that involved the IOL’s joining forces with
a larger, financially more stable organization. Ultimately, the
IOL identified Hartford Hospital, with which it had long en-
joyed a collaborative relationship, as the ideal strategic part-
ner.
Hartford Hospital also saw advantages in combining with
the IOL. It had an interest in the preservation of another im-
portant hospital and nonprofit institution in the Hartford area.
(Tr. 215.) Hartford Hospital’s department of psychiatry also
was ill-equipped to compete on its own in the emerging man-
aged care marketplace. It lacked the full range of mental
health programs and services that the IOL offered, as well
as the comprehensive network of outside providers and nu-
merous managed care contracts that the IOL enjoyed. In the
Hospital’s judgment, it would not be likely to succeed in any
effort to develop these capabilities on its own in the current
marketplace.
With these goals in mind, the IOL and Hartford Hospital
executed on July 9, 1993, a document entitled ‘‘A Vision for
Collaboration & Memorandum of Understanding’’ (the
MOU). Under the heading ‘‘Program Overview,’’ the MOU
states that ‘‘[t]he core of this proposal is to create a single,
fully integrated mental health system of care under the aus-
pices of the IOL, under the overall umbrella of Hartford
Hospital. . . . While services would remain at both cam-
puses as appropriate, they would be governed, managed, and
led as a single service.’’ Under the heading ‘‘Organizational
Intent,’’ the MOU states the following:
It is the unequivocal intent of both organizations that
the identity, mission, and special focus of the Institute
of Living will be maintained and enhanced under a new
IOL.
All mental health programs on both campuses should
be integrated into a single new entity—the new IOL.
The new IOL requires and results from total integra-
tion of current Hartford and IOL programs plus new
ones, to create a mental health system of care which is
stronger and better than each predecessor entity could
achieve individually. Change would occur very quickly
as programs are integrated.
Corporately, the new IOL will become a wholly-
owned subsidiary of Hartford Hospital. The Hartford
Hospital Governing Board will be the sole member and
will have ultimate authority and responsibility for the
new IOL.
The HH Board of Directors will delegate to the new
IOL governing body substantial advocacy, advisory and
operational monitoring responsibility in continuing and
expanding IOL’s mission, tradition, and identity. In par-
ticular, the new IOL governing body will be responsible
for the development of a new multidisciplinary
neuropsychiatric program and other strategic initiatives
in psychiatry.
The new IOL’s governing body will consist of no
more than 15 members, each of whom will also be a
member of the HH Board of Directors. The present IOL
Board of Directors will remain in place in an advisory
capacity for up to three years following the new IOL’s
start-up, to allow for continuity and an orderly transi-
tion.
Of the initial IOL governing body’s membership, a
majority of members will be from among present IOL
Board members who will also be elected to the Hart-
ford Hospital Board of Directors. Of these, at least two
will also be elected to the Hartford Executive Commit-
tee.
The remaining additional members (one of whom
will be the Hartford Hospital CEO) of the initial IOL
governing body will be drawn from among present
Hartford Hospital Directors.
The initial IOL governing body members will be di-
vided into three classes with one, two and three year
terms. Vacancies, and all seats after the third year, will
be filled for one-year terms.
The new corporate organization, including govern-
ance through the IOL Executive Committee, will be ef-
fective immediately when this plan is implemented
(April 1, 1994).
As soon as practicable following approval of a bind-
ing Letter of Intent, three IOL Directors will be elected
to the HH Board of Directors, two of whom will be ap-
pointed to the HH Executive Committee. These three
Directors will be included in the initial IOL governing
body members described above.
186 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The IOL President will provide day-to-day executive
leadership, management direction, and governing body
interaction and will report to the Hartford Hospital
CEO.
The new IOL will have a single medical staff result-
ing from the integration of the staffs at HH and the
present IOL. As the Department of Psychiatry for Hart-
ford Hospital, the new IOL medical staff and the De-
partment Chair/Psychiatrist-in-Chief will be fully incor-
porated into the medical staff organization and structure
of Hartford Hospital.
The status of existing IOL subsidiary corporations
will be assessed and specified within the Letter of In-
tent. Both organizations recognize the importance of the
IOL National Board of Governors and will continue to
seek its advice and counsel.
Embodying these philosophical commitments—a sin-
gle new program as well as a strong IOL governing
board—is achieved by interweaving two strong strands
together. As to governance, the new IOL’s governing
body, nominated by common HH/IOL Nominating
Committee and all of whom will be Hartford Hospital
Directors, will have a specific focus on the mission, tra-
dition, and performance of the new IOL. The HH Board
of Directors will delegate substantial responsibilities to
this Executive Committee. At the same time, a seamless
program will result from oversight by Hartford Hos-
pital’s Board and the direct reporting relationship of the
IOL president to the Hartford Hospital CEO.
By letter of the same date as the MOU, the Union was no-
tified of the contemplated merger. By letter dated July 15,
1993, The Union’s vice president in charge of the hospital
division, Paul Fortier, requested a meeting with representa-
tives of the IOL to discuss the possible impact of the merger
on the employees represented by the Union. Representatives
of the IOL and the Union met on September 16, 1993, at
which time the Union was told that the contemplated merger
would not affect the relationship that the IOL had with the
Union. As noted above, the existing collective-bargaining
agreement between the parties was due to expire on June 14,
1994. The original target date for the merger was April 14,
1994.
On November 3, 1993, the Hartford Hospital and the IOL
entered into a legally binding letter of intent to formalize the
procedures to achieve the desired merger. Although Respond-
ent seems to argue on brief that the letter of intent was sig-
nificantly different than the MOU, it does not appear so to
me. In fact it appears to track the significant portions of the
MOU set forth above. In fact, the agenda for the IOL board
of directors meeting held November 2, 1993, reiterates the
goals and vision of the MOU and contemplates IOL becom-
ing a wholly owned subsidiary of Hartford Hospital, operat-
ing under one license, as it appears was always the aim of
the parties.
On November 9, 1993, Brian Clemow, Esquire (who was
representing both Hartford Hospital and IOL at the time), re-
versed the position taken at the September 16, 1993 meeting
and informed Fortier during a telephone conversation that
Hartford Hospital was not going to recognize the Union after
the merger and would not be a party to a successor collec-
tive-bargaining agreement. By letter dated November 19,
1993, Clemow reduced to writing the substance of the No-
vember 9 telephone conversation. Clemow’s letter explicitly
stated that in the interest of ‘‘operating efficiencies and ef-
fective delivery of services,’’ all current employees of the
IOL would become Hartford Hospital employees, subject to
the terms and conditions of comparable positions at the Hos-
pital. Although Clemow acknowledged the reversal from the
earlier position expressed at the September 16 meeting, he
noted that the Union had been advised during that meeting
‘‘that it was still early in the process, that the situation could
change, and that if it did, we would let you know imme-
diately.’’
On November 22, 1993, after being informed of the plan
to have IOL bargaining unit employees become employees of
Hartford Hospital, Fortier made a comprehensive request for
information from the IOL concerning the proposed merger,
which was supplied on or about December 9, 1993. On De-
cember 20, 1993, a similar information request was made by
the Union to Respondent’s President and CEO John Meehan,
along with a request for a meeting to discuss the impact of
the merger on the Union’s membership. By letter dated De-
cember 30, 1993, Meehan responded that Respondent was
under no legal obligation to provide information to the Union
and that it would not meet with the Union until it ‘‘rep-
resents a majority of Hartford Hospital employees in a unit
appropriate for collective bargaining.’’
By letter dated January 20, 1994, the Union requested the
IOL to open negotiations for a successor agreement. Al-
though this request was made earlier in time than usual, the
Union was still under the impression that the merger between
the IOL and Respondent was scheduled to take place on
April 1, 1994. By letter dated January 27, 1994, the IOL de-
clined the Union’s request to meet and bargain, stating that
historically the parties did not meet to bargain a successor
contract until 30 to 60 days prior to the expiration date. The
Union was also informed that the new target date for the
merger of the IOL and Respondent was October 1, 1994.
Prior to the onset of formal negotiations between the
Union and the IOL, the Union’s president, Jerry Brown, and
Respondent’s president, John Meehan, met informally to see
if there was any way to resolve the issue of successorship
on the merger of the two facilities. Although the Union was
advised it would receive a formal response from Meehan re-
garding the successorship issue, it was not until June 15,
1994, that Respondent, in essence, indicated it would not rec-
ognize the Union on merger with the IOL.
The Union and the IOL eventually met to negotiate a suc-
cessor collective-bargaining agreement on a number of occa-
sions between April 14 and June 27, 1994. Although eco-
nomic issues were discussed during these sessions, the Union
made it clear that its overriding concern was the proposed
merger and its impact on the bargaining unit. Although the
Union proposed certain successorship language, the IOL
made it clear it would not agree to any clause binding any-
one beyond October 1, 1994. Although the Union and IOL
were for all intents and purposes at impasse over the
successorship issue and correlative duration issue, it is undis-
puted that notwithstanding the contract expiration on June
14, 1994, the IOL continued to honor the terms of the con-
tract until October 1, 1994, the effective date of the merger.
Thereafter, by letter dated September 15, 1994, the IOL
withdrew all contract proposals on the table and directed all
187HARTFORD HOSPITAL
1 In this regard, the identical management personnel who had pre-
viously participated in grievance processing prior to the merger con-
tinued to participate in grievance processing subsequent to the merg-
er. On brief, Respondent attempts to minimize the supervisory status
of the unit employees immediate supervisors. It does not contend,
however, that these supervisors are not supervisors within the mean-
ing of the Act. (See Tr. 356.)
2 There is evidence indicating that James Nyez, an employee for-
merly employed at Hartford Hospital who transferred to CB–2 prior
to March 1, 1995, did receive his psychiatric training at the IOL fa-
cility and was trained there for approximately 1 month in anticipa-
tion of the relocation of the entire CB–2 unit to the IOL campus ef-
fective on March 1, 1995.
3 Apart from evidence indicating that since October 1, 1994, an X-
ray technician and EEG technician from Hartford Hospital each pro-
vided temporary coverage for vacationing IOL employees employed
in these respective job classifications, there were no other transfers,
temporary, or otherwise, prior to the relocation of the CB–2 unit to
the IOL facility.
4 Although approximately 40 people in total relocated from CB–
2 to the IOL facility effective March 1, 1995, of that number there
are only 9 employees employed in job classifications covered by the
former IOL Union’s collective-bargaining agreement; 5 licensed
practical nurses and 4 psychiatric aides.
communications by the Union concerning a new collective-
bargaining agreement be directed to Respondent. Shortly
after receipt of this letter, Fortier wrote to Respondent Presi-
dent Meehan seeking to meet with Respondent to discuss
recognition of the Union as well as the terms and conditions
to be applied to union members effective October 1, 1994.
By letter dated October 6, 1994, Meehan reiterated Respond-
ent’s earlier position that it did not believe it feasible to have
former IOL employees working with similarly situated em-
ployees of Respondent under different conditions of employ-
ment. The Respondent also indicated that the IOL bargaining
unit was not an appropriate unit and, accordingly, declined
to recognize the Union as the exclusive bargaining represent-
ative of the former IOL employees. The Union has had no
further contact with Respondent since the receipt of the Oc-
tober 6 letter.
D. The Manner in Which the IOL and Hartford
Hospital Have Operated Since the Merger
Subsequent to the October 1, 1994 merger, the IOL contin-
ued to exist in its corporate form as a wholly owned subsidi-
ary of Respondent. The IOL maintains its own board of di-
rectors. In addition, the IOL retains ownership of the IOL
real estate, including the land and buildings situated on the
IOL campus. The IOL also retains exclusive control over its
approximately $20 million endowment fund to be used ex-
clusively by and for the IOL. The IOL has also retained its
name as a magnet for fundraising efforts. According to Lau-
rence Berger, vice president of operations and codirector of
Respondent’s mental health network and former CEO at the
IOL, the merger of the IOL with Respondent envisioned that
in-patient psychiatric care will be provided exclusively at the
former IOL campus.
John Connor, a senior psychiatric technician at the IOL for
approximately 21 years, and currently classified as a psy-
chiatric aide under Respondent’s job classifications, testified
that he performs the same job responsibilities as an employee
of Respondent as he did while an employee of IOL. Both
prior and subsequent to October 1, 1994, Connor, as well as
all other former bargaining unit employees, have, without
change, been supervised by the identical supervisory staff.1
Subsequent to October 1, 1994, all of the former IOL bar-
gaining unit employees continued to work in the same jobs
as they held before the merger, without change. At no time
since October 1, 1994, have former IOL bargaining unit em-
ployees ever performed their jobs at the Hartford Hospital
main campus.2 Further, there is no evidence indicating that
between October 1, 1994, and March 1, 1995 (the date the
CB–2 unit was relocated to the IOL facility), any former em-
ployees from Hartford Hospital transferred to the IOL cam-
pus.3
Respondent asserts that all technical employees, regardless
of specialty, are interchangeable. According to Dr. Harold
Schwartz, Respondent’s director of psychiatry and medical
director of the mental health network, ‘‘[t]here are no thresh-
olds to cross, and it’s only a matter of orientation and famili-
arity.’’ On consolidation of the psychiatric services at the
IOL facility, however, even those psychiatric aides (as they
are now referred to) who perform identical work and possess
identical skills remain segregated. In this regard, despite the
relocation of the CB–2 unit from Hartford Hospital to the
IOL campus, the CB–2 unit remains staffed with the same
Hartford Hospital personnel who staffed that unit prior to its
relocation. Thus, Respondent’s assertion that there is no dif-
ference between the work being performed by, or the skill
level of, the psychiatric aides from Hartford Hospital and the
psychiatric aides from the IOL appears to be lacking in sub-
stance.4 The testimony of Dr. Schwartz indicates that it is the
custom and practice of Respondent to staff its departments
with personnel from that particular medical discipline before
looking elsewhere to fill staffing needs. Respondent asserts
that the current work force of psychiatric aides is largely
interchangeable in a functional sense and are available to
cover for each other’s work assignment, whether on an emer-
gency, temporary, or even a long-term basis. There is no
showing that this is any change from the situation that ex-
isted prior to merger. As noted elsewhere, however, there
had been no interchange of work functions between former
IOL psychiatric aides and CB–2 psychiatric aides. There is
no showing that any former IOL psychiatric aides have been
used to work in any other area of Hartford Hospital, nor
have any nonpsychiatric aides been shown to have performed
work in the psychiatric department housed on the IOL cam-
pus, post merger.
Prior to the merger and thereafter, Hartford Hospital has
maintained job classifications identical or similar to other job
classifications listed in the former IOL bargaining unit, such
as LPN’s, X-ray technicians, EEG technicians, laboratory
technicians, and certified occupational therapy assistants. Ac-
cording to Respondent, the education, skills, training, and
functions of the employees in each of these job classifica-
tions are essentially the same regardless of which department
in Hartford Hospital employees in those job classifications
work. Though this might be true, there remains a clear seg-
regation of the formal IOL bargaining unit, much as envi-
sioned in the MOU. The evidence also revealed that the psy-
chiatric bargaining unit personnel have extensive training in
dealing with mental health problems and patients that ap-
pears necessary and would make it unlikely that one not so
188 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
trained could perform adequately in the psychiatric depart-
ment.
With regard to other unchanged circumstances since the
merger, none of the former IOL unit employees were re-
quired to reapply or reinterview for positions with Hartford
Hospital effective October 1, 1994. Parking and dining facili-
ties for former IOL employees remained unchanged. The
process by which IOL patients were fed meals also remained
unchanged. The care and treatment of patients did not change
effective October 1, 1994. There were no new policy manu-
als modifying the psychiatric care, treatment, or procedures
to be followed on the merger of the two institutions. In fact,
the CB–2 staff who were to be relocating to the IOL campus
were trained by IOL personnel using IOL policy and proce-
dure manuals.
Certain aspects of the two former separate operations were
functionally integrated. The IOL surrendered its license to
operate a health care facility and now the Hartford Hospital
and the IOL operate under a single license. The combined
operation has a single, systemwide operating budget. At least
two Hartford Hospital operations, the geriatric medicine’s
ambulatory clinic, and the early child care program have
moved or plan to move from the Hartford Hospital campus
to unused space on the IOL campus.
Certain administrative functions have been consolidated
under the supervision of individual Hartford Hospital heads.
The combined organization has single vice presidents for fi-
nance, human resources, management information systems,
patient operations, clinical affairs, and planning and facilities
management. Prior to the merger, the IOL had its own de-
partment heads in each of these areas. The individuals for-
merly responsible for these functions at the IOL have either
left or now report to supervisors in the Hartford Hospital
chain of command. The responsibilities of the former IOL
managers who remain employed by the Hospital are not nec-
essarily limited to operations on the former IOL campus and
in many cases their responsibilities have been broadened to
include other Hartford Hospital functions.
There is a single, unified system of patient admissions,
with a single phone number and a single place where deci-
sions about physical placement and program placement are
made. Patients and medical records move freely throughout
the system as treatment dictates, without restriction.
In terms of physical integration within the Hospital’s men-
tal health system, certain psychiatric programs, and services
that existed at Hartford Hospital prior to the merger have
been extended to service patients housed on the former IOL
campus. These include emergency room services, emergency
psychiatry services for patients with both medical and psy-
chiatric treatment needs, and project recovery, a program for
substance-abusing women of child-bearing age. All of these
programs and services continue to be housed on the main
Hartford Hospital campus. IOL’s outpatient department was
relocated and consolidated on the main campus of Hartford
Hospital.
There has also been a centralization of the purchasing
functions of both IOL and Hartford Hospital, supplies of
both (with the exception of food and supplies used exclu-
sively in psychiatric treatment), laundry services, security,
pharmacy services, printing services, mail services, and tele-
phone services.
Because the combination of Hartford Hospital and IOL be-
came fully effective on October 1, 1994, all employees both
at the main Hartford Hospital campus and the former IOL
campus have worked under common personnel policies and
procedures, which were distributed in written form to all
former IOL employees. Common control over employee rela-
tions matters, both for former IOL employees and other Hart-
ford Hospital personnel, is maintained through a single per-
sonnel office, which is located on the main Hartford Hospital
campus.
Personnel and attendance records are now centrally main-
tained at Hartford Hospital’s personnel office for all employ-
ees, regardless of their worksite. Performance evaluations are
handled through the Hospital’s personnel office for all Hart-
ford Hospital employees, including former IOL employees,
using the same system and the same Hartford Hospital forms.
Decisions about employee discipline or discharge are handled
through the Hospital’s central personnel office for all em-
ployees, including former IOL personnel. Human resource
personnel are generally involved in disciplinary decisions,
depending on the severity of the particular action being
taken, and must specifically approve any discharges.
Since October 1, 1994, the Hospital has maintained a sin-
gle, unified system for the hiring of new employees, which
is centralized at the personnel office on the main Hospital
campus. Regardless of the location at which they may ulti-
mately work, job candidates must undergo an initial screen-
ing interview by human resources personnel at the central
personnel office. If they pass their screening interview, can-
didates are then interviewed ‘‘on site’’ at the locations to
which they will be assigned by the persons who will be their
immediate supervisors. Actual job offers are made through
the Hospital’s central personnel office, regardless of where
the job will be performed. Two psychiatric aides whose
worksite is in the Donnelly building on the former IOL cam-
pus have been hired through the personnel office on the main
Hartford Hospital campus since October 1, 1994. These two
employees were assigned to the former CB–2 unit relocated
to the Donnelly building on March 1, 1995.
All Hartford Hospital job openings are posted systemwide,
regardless of the campus on which the job is located. There
are no restrictions on job transfers between campuses. All
persons employed in the five in-patient psychiatric units at
Hartford Hospital, both the former CB–2 unit as well as the
four former IOL units, are under a single unified supervisory
structure. There does not appear to be any change in the su-
pervision of the former IOL bargaining unit members, except
that Dr. Schwartz has replaced the former CEO of the IOL
as the person in charge of the psychiatric department and the
Hospital’s director of nursing is different.
Common job classifications have been applied to all
former IOL employees and other Hartford Hospital person-
nel. Former IOL job titles have been changed as necessary
to conform to the corresponding Hartford Hospital job classi-
fication. Since October 1, unspecified joint orientation ses-
sions for employees in the mental health area at both the
main Hartford Hospital campus and the former IOL campus
have engaged in joint orientation sessions with each other.
E. Unilateral Changes in Working Conditions
Subsequent to the merger, Hartford Hospital has instituted
a number of unilateral changes in the wages, benefits, and
189HARTFORD HOSPITAL
5 Similarly, the unilateral changes would violate Sec. 8(a)(5) of the
Act under either approach. See NLRB v. Katz, 369 U.S. 736 (1962)
(unilateral changes in terms and conditions of employment concern-
ing matters that are mandatory subjects of bargaining over which a
union seeks to bargain violate Sec. 8(a)(5) of the Act). If it is a
merger, the Hospital would have been prohibited from changing any
terms and conditions of employment without bargaining. As a Burns
successor, under ‘‘perfectly clear’’ exception, the Hospital was not
free to make any changes in the terms and conditions of employment
of the IOL employees. Spruce-Up Corp., 209 NLRB 194, 195
(1974).
working conditions of the former IOL bargaining unit mem-
bers. These changes include the elimination of short-term
disability insurance, changes in the manner in which over-
time pay is calculated, minor variations in health insurance
coverage (essentially focusing on the insurance carrier),
elimination of wage increases, institution of lump sum bonus
payments, changes in pension plan provisions, changes af-
fecting seniority rights, changes to the supplemental life in-
surance benefits, changes with regard to the calculation of
shift differential premium pay for vacation and sick leave
purposes, changes impacting on personal paid time off poli-
cies, changes in the manner in which personal days are ac-
crued, elimination of Martin Luther King Day as an optional
holiday, and the elimination of dues-checkoff and binding ar-
bitration.
All employees of Hartford Hospital, including those for-
merly employed by IOL, work under a common wage and
benefit structure. With the exception noted below, employees
occupying the same job classifications receive the same
wages and benefits, regardless of where they work at Hart-
ford Hospital. All employees are covered by the same group
health insurance plan, and former IOL employees who are
members of the IOL pension plan have become members of
the Hartford Hospital pension plan. The exception to this
uniformity is with respect to former IOL employees who
were earning wage rates outside the rate ranges for their
Hartford Hospital counterparts at the time of the merger.
Those employees, including the more experienced psychiatric
aides, who were earning more than the maximum Hartford
Hospital rates were ‘‘red circled’’ rather than be reduced in
pay. Those former IOL employees who were earning less
than their Hartford Hospital counterparts were given in-
creases to bring them within corresponding Hartford Hospital
rate ranges.
F. Conclusions with Respect to the Legal Issues
1. Respondent is obligated to recognize and bargain
with the Union if the unit remains appropriate
The General Counsel asserts that there is no question that
if the former IOL bargaining unit continues to remain an ap-
propriate unit following the merger, Respondent would be re-
quired to recognize and bargain with the Union as the rep-
resentative of that unit because either (1) the merger is noth-
ing more than a corporate consolidation akin to a stock trans-
fer, as in Children’s Hospital of San Francisco, 312 NLRB
920, 926–928 (1993); or (2) Respondent is a successor em-
ployer to the IOL within the meaning of NLRB v. Burns Se-
curity Services, 406 U.S. 272 (1972), and Fall River Dyeing
Corp. v. NLRB, 482 U.S. 27 (1987).5 I believe that the
former analysis most nearly fits the facts of this case, though
a successorship analysis would also be appropriate.
In Children’s Hospital, supra, a case that poses facts strik-
ingly similar to the instant case, a merger occurred between
Children’s Hospital and Pacific Presbyterian Hospital, two
previously separate hospitals located about 1 mile apart. Fol-
lowing the merger, a new entity called the California Pacific
Medical Center was created, with the former Children’s Hos-
pital thereafter known as the California campus, and the
former Pacific Presbyterian Hospital known as the Pacific
campus. The approximately 600 registered nurses (RNs) at
Children’s Hospital had for many years been represented by
the California Nurses Association (CNA); the approximately
840 RNs at Pacific Presbyterian Hospital had never been rep-
resented by any labor organization. Following the merger,
the respondent therein (the new entity) refused to recognize
the CNA as the representative of the former Children’s Hos-
pital RNs because the number of RNs at Pacific Presbyterian
outnumbered the RNs at Children’s Hospital. Moreover, each
hospital continued to operate as a full service, acute care
medical facility, but with centralized management; common
personnel and labor relations functions, including hiring;
common wages, benefits, policies, and rules; common job
postings and training; and some sharing of equipment. In ad-
dition, the two formerly separate hospitals held themselves
out to the public as a single entity.
In the instant case, the IOL became a wholly owned sub-
sidiary of Hartford Hospital, with the aim of combining the
Hospital’s mental health services with those provided by the
former IOL. The letter of intent between the parties provides,
inter alia, that the ‘‘guiding organizational principles are to
be those expressed in the MOU, namely, the preservation and
enhancement of IOL’s identity, mission and special focus.’’
In keeping with this directive, the former IOL bargaining
unit continued to provide the same services in the same fa-
cilities and with the same immediate supervision as it had
prior to the October 1, 1994 merger. The much smaller men-
tal health staff of Hartford Hospital was moved to the IOL
campus and housed in the same building with the former
IOL staff in March 1995. As of the date of hearing, the Hart-
ford Hospital mental health staff had little if any interaction
with the former IOL staff, at least at the bargaining unit
level.
As was the case in Children’s Hospital, I believe that this
merger was in fact more akin to a stock transfer with Hart-
ford Hospital being the surviving entity. With respect to the
continuing obligation to bargain with the union representing
the subsidiary’s employees, the essential inquiry is whether
operations, as they impinged on bargaining unit members, re-
mained essentially the same after the transfer of ownership.
Phil Wall & Sons Distributing, 287 NLRB 1161 fn. 1, 1165
(1988). Herein, as in a true stock transfer situation, there was
no hiatus in operations and the daily operation of the former
IOL continued as before. The unrebutted testimony of John
Connor established that his job did not change before or after
October 1, 1994. Connor continues to perform his job re-
sponsibilities in the identical manner as he did before Octo-
ber 1, 1994. He continues to report to the same supervisors
to whom he reported prior to October 1, 1994. In all respects
his work remains unchanged since October 1, 1994, includ-
ing the employees with whom he associates in performing
such work. Such changes as have occurred post merger pri-
190 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Respondent attacks the General Counsel’s assertion of a
successorship theory here, inter alia, because it is contrary to the po-
sition taken by the General Counsel in the case of Pathology Insti-
tute, Case 32–CA–12599–1 (August 31, 1994). As noted by the ad-
ministrative law judge in his decision, however, the General Counsel
in that case did not make a successorship allegation because the
therein involved unit was not a unit defined in the Board’s Rules
and it could not be considered an ‘‘existing non-conforming unit.’’
That is not the situation in the instant case.
marily have to do with achieving economies of scale by
eliminating duplicating functions such as financial and ad-
ministrative services, patient admissions, and other services
detailed above in my fact findings. These changes have had
little impact on the day-to-day working conditions of the in-
volved bargaining unit personnel.
As stated by the administrative law judge in Children’s
Hospital, supra at 927:
The significance of the above conclusion to the
issues herein is clear. Thus, the Board has long held
‘‘that the ‘mere change of stock ownership does not ab-
solve a continuing corporation of responsibility under
the Act.’’’ Rockwood Energy Corp., supra; Miller
Trucking Services, 176 NLRB 556 (1969). In particular,
when a stock transfer occurs and the entity’s employees
are represented by a labor organization, the new owner
‘‘may not decline to recognize and bargain with the
[said labor organization] in the appropriate unit.’’ . . .
if the stock transfer occurs after the expiration of a col-
lective-bargaining agreement, the new owner is obli-
gated to continue to recognize and bargain with the
labor organization in an appropriate unit and to ‘‘main-
tain the terms and conditions of employment [the en-
tity] established . . . without unilateral change after the
agreement expired.’’ Rockwood Energy Corp., supra;
Phil Wall & Sons, supra; Hendricks-Miller Typographic
Co., supra . . . Western Boot & Shoe, 205 NLRB 999
(1973).
Respondent admits that the IOL continues to be an ongo-
ing not-for-profit corporation, which retains full ownership of
its real property and the building situated thereon. It also re-
tains sole control over its $20 million endowment fund that
is for the exclusive use of the IOL. In Children’s Hospital,
supra, at 927–928, citing Food & Commercial Workers v.
NLRB, 768 F.2d 587, 589 (6th Cir. 1982), the administrative
law judge therein noted:
[W]hile insisting that a new entity resulted from the
merger of the two hospitals, Respondent excused and
rationalized the retention of the Children’s Hospital cor-
porate structure as being necessary to take advantage of
the latter’s pre-existing tax exempt status as a charitable
institution; however, it is clear that an employer may
not justify gaining tax advantages by asserting its con-
tinued viability while, at the same time, denying its
continued existence in order to evade its obligations to
employees under the Act.
For the foregoing reasons, I find and conclude that the Re-
spondent had an obligation to recognize and bargain with the
Union with respect to the involved unit, if that unit is an ap-
propriate one within the meaning of the Act.
With respect to the question of whether Hartford Hospital
is a successor to the IOL, the Supreme Court in NLRB v.
Burns Security Services, supra, held that a new employer’s
duty to bargain with the union arose when it selected as its
work force the employees of the previous employer to per-
form the same tasks at the same place they worked before.
As the Court stated at 279:
It has been consistently held that a mere change of em-
ployers or [a mere change in] ownership in the employ-
ing industry is not such an ‘‘unusual circumstance’’ as
to affect the force of the Board’s certification within the
normal operative period if a majority of employees
after the change in ownership or management were em-
ployed by the preceding employer.
In Fall River Dyeing Corp., supra, the Supreme Court
noted that ‘‘[i]f the new employer makes a conscious deci-
sion to maintain generally the same business and to hire a
majority of its employees from the predecessor, the bargain-
ing obligation under § 8(a)(5) is activated.’’ (482 U.S. at 41.)
In determining whether an employer has generally main-
tained the same business, the Court in Fall River Dyeing fo-
cused on whether there is ‘‘substantial continuity’’ between
the new and the prior enterprises, noting the following fac-
tors:
[W]hether the business of both employers is essentially
the same; whether the employees of the new company
are doing the same jobs in the same working conditions
under the same supervisors; and whether the new entity
has the same production processes, produces the same
products, and basically has the same body of customers.
[Id. at 2437, citations omitted.]
The evidence in the instant case reflects that Hartford Hos-
pital has continued to operate, from the former IOL bargain-
ing unit employees’ point of view, the same business in the
same location under the same working conditions, and under
the same immediate supervision as was the case with the
IOL. The IOL is akin in my opinion to a subsidiary corpora-
tion of a larger corporation or a division of a corporation,
providing a product different from the other parts of the
Company. In this status, the business of the IOL continues
in all essential ways to be the same as before the merger.
In these circumstances, and as the overwhelming number of
employees within the unit are former IOL bargaining unit
members, I find that Hartford Hospital has a legal obligation
to recognize and bargain with the Union as a successor to
the IOL, again assuming the unit remains an appropriate
one.6
2. Does the involved unit continue to be an
appropriate one?
Section 9(a) of the Act provides in relevant part that:
Representatives designated or selected for the purposes
of collective bargaining by the majority of the employ-
ees in a unit appropriate for such purposes, shall be the
exclusive [bargaining] representative of all the employ-
ees in such unit for the purposes of collective bargain-
191HARTFORD HOSPITAL
7 Although Respondent notes that IOL bargaining unit employees
have jointly participated with other nonunit employees of Respond-
ent in orientation and in-service training conducted at Respondent’s
main campus, such interaction will not overcome the presumption
that the IOL bargaining unit remains appropriate. Staten Island Uni-
versity Hospital, supra.
ing in respect to rates of pay, wages, hours of employ-
ment, or other conditions of employment.
Neither the Board nor courts considering this issue require
that the unit be the most appropriate bargaining unit. Rather,
all that is required is that the unit be an appropriate bargain-
ing unit. American Hospital Assn. v. NLRB, 499 U.S. 606,
610 (1991); Staten Island University Hospital v. NLRB, 24
F.3d 450 (2d Cir. 1994). This determination, in turn, depends
on the degree to which employees in one location share a
community of interest distinct from the interests of employ-
ees employed by an employer at other locations. In cir-
cumstances such as are present here, a single facility unit
geographically separate and distinct from Respondent’s main
facility is appropriate because of the unique community of
interest shared among the psychiatric technicians (and other
bargaining unit personnel) formerly employed by the IOL.
Staten Island University Hospital v. NLRB, supra; Manor
Healthcare Corp., 285 NLRB 224 (1987).
In Manor Healthcare Corp., supra, the Board extended the
single facility presumption to the health care industry, the
presumption being a rebuttable one requiring the party op-
posing such a unit to do so ‘‘by a showing of circumstances
that militates against its appropriateness, including an in-
creased risk of work disruption or other adverse con-
sequences.’’ Id. The Board also indicated that it would con-
tinue to weigh the ‘‘traditional factors’’ normally utilized in
unit determination case, to determine if the presumption had
been overcome. These factors include: (1) geographic prox-
imity of the bargaining unit’s members; (2) members’ func-
tion and skill similarity; (3) similarity of members’ employ-
ment conditions; (4) administrative centralization; (5) mana-
gerial and supervisory control of the unit’s members; (6) em-
ployee interchange; (7) functional integration of the em-
ployer; and (8) bargaining history of the unit’s members.
Staten Island University Hospital, supra. As found by the
Chief Judge Dorsey in the companion 10(j) proceeding,
‘‘Most, if not all, of those factors suggest the union is an ap-
propriate unit.’’ For the reasons set forth below, I do not be-
lieve the presumption has been rebutted by the Respondent
and the former IOL bargaining unit remains an appropriate
one.
Giving a more detailed examination to the ‘‘traditional
factors’’ in unit determination supports the General Coun-
sel’s position that the former IOL bargaining unit retains a
community of interest and continues to be an appropriate
unit. With respect to the first of these eight factors, geo-
graphic proximity, I note that the court in Staten Island Uni-
versity Hospital held at 24 F.3d 450 (1994), ‘‘The geo-
graphic proximity factor neither compels nor precludes the
NLRB’s decision.’’ It further found that this factor offers lit-
tle guidance on the appropriateness of a bargaining unit. The
former IOL bargaining unit is housed in the Donnelly build-
ing on the southern portion of the former IOL campus, which
is across a street from the Hospital’s main campus. Though
the distance is not great, it is the same distance that always
existed before the merger. As will be noted in discussion of
the other factors, the former IOL bargaining unit is and re-
mains physically and functionally segregated from the other
employees of Hartford Hospital. This segregation appears to
me to accomplish separation of the two groups of employees
as successfully as would a more extensive geographic separa-
tion. Certainly, when one looks at the other factors involved
in this determination, the purpose behind need for geographic
separation is met in this case.
With respect to the matter of members’ function and skill
similarity, the actions of Respondent lend support to the con-
tinued appropriateness of the former IOL bargaining unit. I
believe this factor must be viewed together with the factors
of employee interchange and the functional integration of the
employer. When these factors are viewed together, it is clear
that the former IOL unit enjoys a community of interest
within itself and its skills and functions are different from
other Hartford Hospital employees.
Respondent attempted to demonstrate that the community
of interest of former IOL technical employees is now so
intertwined with that of the Hartford Hospital technical em-
ployees that the former IOL bargaining unit can no longer
be deemed appropriate. The unrebutted testimony of John
Connor as well as the testimony of Respondent’s own wit-
nesses belies any such claim. In fact, it appears that the
merger of the IOL and Hartford Hospital and subsequent re-
location of the psychiatric services formerly performed at
CB–2 have only served to further segregate and isolate the
psychiatric employees from the rest of Respondent’s em-
ployee population. Moreover, apart from the relocation of the
‘‘technical’’ employees (nine in total) from CB–2 to the IOL
facility, there has been no interchange or interaction between
any technical employees employed at Respondent’s main fa-
cility with the technical employees employed at the IOL fa-
cility.7 (Tr. 351, 357.) In fact, despite the alleged integration
of all psychiatric services to the IOL facility effective March
1, 1995, as of the hearing they too continue to be segregated
to the units they formally worked on prior to the October 1,
1994 merger. Testimony regarding the relative ease by which
a psychiatric technical employee could skillfully perform
his/her job duties in other departments at Respondent’s facil-
ity, and vice versa, is pure speculation, certainly in light of
the fact that no such transfers have occurred since October
1, 1994. Such evidence, or the lack thereof, only strengthens
the argument that the IOL bargaining unit remains appro-
priate and distinct.
Although Respondent asserts that the community of inter-
est enjoyed by the former IOL employees has been destroyed
since October 1, 1994, the evidence adduced here indicates
that just the opposite is true. In this regard the generalized
testimony proffered by Respondent’s witnesses that nothing
prevents it from completely intermingling the former IOL
psychiatric technical employees with Hartford Hospital’s
technical employees is not credible. In practice that would
not occur, as it has not occurred, because the very nature of
psychiatric services compels its segregation from other medi-
cal services. In Brattleboro Retreat, 310 NLRB 615, 616
(1993), the Board, citing 53 Fed.Reg. 33930, and Park
Manor, 284 NLRB 1515, 1570 (1984), noted that ‘‘psy-
chiatric hospitals differ from other acute care hospitals in
that therapeutic programs are highly integrated, there are
more paraprofessionals (mental health workers), and all em-
192 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 Although Respondent asserts that as a result of its merger with
IOL a great deal of functional and operational integration has oc-
curred, including the uniform application of benefits, personnel poli-
cies, and procedures as well as attempts at wage equalization, these
similarities have occurred only because Respondent refused to recog-
nize and bargain with the Union before unilaterally imposing terms
and conditions of employment upon the IOL bargaining unit. See
Empire Health Centers Group, supra.
ployees are specially trained in relating to patients as all em-
ployees’ actions have an impact on patient care. Thus, Re-
spondent’s plan could not possibly contemplate an inter-
mingling of all of its technical employees on a hospitalwide
basis. Certainly such an intermingling was not the vision of
the Hospital as set forth in the MOU. More significantly,
since the merger Respondent has further isolated and seg-
regated all psychiatric services it offers by consolidating and
performing them solely at the IOL facility, or the two off
campus locations of the IOL. Thus, Respondent’s actions in
the actual operation of its facilities certainly speaks far loud-
er than its proffered words at the hearing. Accordingly, the
evidentiary record clearly supports the General Counsel’s as-
sertion that the unique character and appropriateness of the
IOL bargaining unit has not only been preserved since the
merger, but has actually been strengthened as well. The func-
tional integration of IOL and Hartford Hospital seems to me
to be primarily in the area of shared administrative and sup-
port services, and not in core functions performed by the
IOL bargaining unit.
With respect to the factor of similarity of members’ em-
ployment conditions, I would note that from a day-to-day
view, the former IOL unit members working conditions have
not changed and to the extent that their wages, benefits, and
working conditions have been made similar to the other Hart-
ford Hospital employees, this has been the result of the Hos-
pital’s unilateral changes that are complained of here. As
noted by the Board in Empire Health Centers Group, 314
NLRB 1 (1994), the fact that the IOL and Hospital employ-
ees share the same wage and benefit structure after the merg-
er ‘‘begs the question.’’ In Empire Health, the Board explic-
itly rejected the argument that the combined work force of
two merged facilities was the only appropriate bargain unit
based on shared terms and conditions of employment since,
as in the instant case, the two groups shared the same wage
and benefit structure only because the employer refused to
bargain with the union representative of one group and uni-
laterally imposed on those employees a new wage and bene-
fit structure.8
With respect to the factors of administrative centralization
and managerial and supervisory control of the unit’s mem-
bers, the facts reflect there was a good deal of administrative
centralization and some top level changes in management.
The same was true in both Children’s Hospital and Staten
Island University Hospital as well. The court in Staten Island
University Hospital noted that while administrative cen-
tralization favors an employerwide unit, site-specific super-
vision, such as remains with the IOL unit, favors separate
units. As noted earlier, the immediate supervision of the IOL
bargaining unit members stayed the same after the merger.
The last of the eight factors, bargaining history of the
unit’s members, lends great weight to the continuing appro-
priateness of the former IOL bargaining unit. In Children’s
Hospital, in adopting the administrative law judge’s decision
in which he found that the respondent therein was obligated
to recognize and bargain with the CNA as the representative
of the RNs at the former Children’s Hospital, the Board spe-
cifically agreed with the judge’s primary reliance on the
‘‘long bargaining history’’ between the Children’s Hospital
and the CNA, stating:
That long term relationship was reasonably relied on by
the judge in finding that—where the proffered unit
choices are a unit consisting of the facility in which the
bargaining relationship had existed and a unit encom-
passing that facility and another which lacked a similar
bargaining history—the single facility is an appropriate
unit. [Id. at 920.]
Moreover, the Board noted that even without relying on
the bargaining history, it would affirm the judge’s decision
because of its agreement with the judge that other factors
warranted the finding on an appropriate unit, including the
lack of significant interchange between the nurses on the two
campuses, and ‘‘the absence of record evidence of any po-
tential for adverse consequences resulting from a labor dis-
pute in this unit.’’ Id.
Even assuming arguendo, however, that the IOL and Hart-
ford Hospital now constitute a single facility for the purposes
of applying the ‘‘single employer presumption,’’ the Union
has overcome the presumption that the only appropriate unit
would consist of all technical employees from both the IOL
and Hartford Hospital. In this regard, and for the reasons
given above, the evidence establishes that the IOL employees
continue to constitute an appropriate unit following the merg-
er. Moreover, there are no Board or court cases that would
preclude a labor organization from rebutting an employer’s
claim that only a single facility bargaining unit is appropriate
by establishing the appropriateness of some smaller unit
within the single facility, especially when that unit is an ex-
isting one with a long collective-bargaining history. Manor
Healthcare Corp., 285 NLRB 224, 227 (1987) (‘‘parties have
the opportunity to present any evidence that reasonably tends
to show the single facility to be inappropriate, and the Board
must consider the unique circumstances of a particular group
of employees before reaching a final determination’’).
As in Children’s Hospital, the instant case reveals a long
and well established bargaining history between the IOL and
the Union, coupled with the postmerger lack of employee
interchange, lack of common immediate supervision, and the
absence of evidence of any potential for undue adverse con-
sequences resulting from a labor dispute in the IOL unit. De-
spite the foregoing, Respondent contends that the IOL and
Hartford Hospital must be considered a ‘‘single facility’’ be-
cause of their geographic proximity and functional integra-
tion, and that if it is a single facility, the Board’s ‘‘single
facility presumption’’ as set forth in Brattleboro Retreat,
supra, precludes a finding that the IOL employees constitute
a separate appropriate unit following the merger. In this re-
gard, counsel for the General Counsel asserts that the evi-
dence adduced herein, including the continuing existence of
the IOL as a corporate entity, the continuing existence of the
IOL endowment fund and charitable solicitations in the name
of the IOL, the July 9, 1993 MOU and the April 29, 1994
agreed settlement indicates that the IOL continues to exist as
a separate entity following the merger. I agree with this
193HARTFORD HOSPITAL
view. Whether one views it as a subsidiary corporation or a
corporate division, it does continue to have a separate iden-
tity from the rest of Hartford Hospital, an identity separate
physically, by function, and by the skills of its unit employ-
ees. Equally significant is the lack of any evidence that a
labor dispute at the IOL would have a significant impact on
the delivery of services by Hartford Hospital at its main fa-
cility. Such evidence seriously undercuts Respondent’s asser-
tion that the IOL and the Hospital now constitute a single
full-service acute care facility. To the contrary, the evidence
indicates that after the merger Respondent continues to oper-
ate a full-service acute care hospital, with the IOL, as a sub-
sidiary or division, continuing to operate a psychiatric hos-
pital incorporating the former psychiatric services of the
Hartford Hospital, and the two entities are commonly admin-
istered and governed. Such a relationship is far more akin to
the relationship between the two hospitals described in Chil-
dren’s Hospital, supra, than to the relationship between the
entities in Brattleboro Retreat, supra.
Although the Respondent argues that the Second Circuit
opinion in Staten Island University Hospital v. NLRB, supra,
and the Board’s decision in Children’s Hospital, supra, are
not dispositive of the issues pending here, these cases are the
latest pronouncements by the Second Circuit and the Board,
respectively, regarding the continued appropriateness of a
single facility unit under circumstances similar to those exist-
ing here. Of critical importance to the Board and the court
in finding that these single facility units remained appropriate
after a merger was the long term, continuous bargaining his-
tory the single facility enjoyed prior to the merger. In both
Staten Island University Hospital and Children’s Hospital, as
in the instant case, there was a great deal of functional inte-
gration and administrative centralization following the merg-
er. Notwithstanding the ‘‘top down’’ merger undertaken in
those cases, the day-to-day activities of the employees at the
respective institutions, as in the instant case, remained essen-
tially unchanged.
Moreover, despite Respondent’s incorrect claim of com-
plete functional and administrative integration, Respondent
admits that the IOL continues to be an ongoing not-for-profit
corporation, which retains full ownership of its real property
and the building situated thereon. It also retains sole control
over its $20 million endowment fund, which is for the exclu-
sive use of the IOL.
Respondent also asserts that the decisions in NLRB v.
Catherine McCauley Health Center, 885 F.2d 341 (6th Cir.
1989), and Brattleboro Retreat, supra, are dispositive of the
issues involved in this proceeding. Again, this is not correct.
Respondent relies on these cases largely for the proposition
that given the geographic proximity between IOL and Re-
spondent’s main facility, the institutions should be treated as
a single facility. Certainly, the geographic proximity between
these two facilities is not great, but it also has not narrowed
since the merger. Nor would Respondent claim that prior to
October 1, 1994, IOL and Respondent were not indeed sepa-
rate and distinct facilities. In these circumstances, geographic
proximity offers little guidance on the continued appropriate-
ness of the IOL bargaining unit. Staten Island University
Hospital v. NLRB, supra. In Catherine McCauley Health
Center, supra, unlike the instant case, there was a great deal
of employee interchange with approximately 50 percent of
the former bargaining unit employees having been transferred
away from the involved facility. In my opinion, this is a seri-
ous distinction because it negates any notion of separateness
that would support a finding of community of interest. On
the other hand, I believe that the virtual absence of employee
interchange in the instant case strongly enhances the extent
of physical separation of the IOL from the main Hartford
Hospital.
Factually, Brattleboro Retreat, supra, is also distinguish-
able from the circumstances existing herein. In Brattleboro,
the unit that the petitioning labor organization sought to rep-
resent included technical employees employed at a psy-
chiatric facility (Rockwell Center), a nursing home (Linden
Lodge), and the Resource and Development Corp., which
held assets including a country club, a farm, and staff hous-
ing facilities wherein some of the petitioned-for unit employ-
ees were employed. Moreover, the functional integration of
the petitioned-for unit had occurred well before the petition
to represent the employees had been filed. Perhaps the most
critical distinction in Brattleboro was the lack of any prior
bargaining history at any time before the representation peti-
tion was filed. I believe that bargaining history is the single
most important factor relied on by the Board in finding that
a preexisting single facility bargaining unit remains appro-
priate subsequent to a merger.
Moreover, any reliance on the Sixth Circuit decision in
NLRB v. Catherine McCauley Health Center, supra, at this
time is questionable. That decision has never been relied on
by the Board or any court outside the Sixth Circuit since its
publication and it is certainly inapplicable where Second Cir-
cuit decisions have provided persuasive if not binding prece-
dent. See, e.g., Staten Island University Hospital v. NLRB,
supra; Hotel, Hospital, Nursing Home & Allied Services Em-
ployees Local 144 v. NLRB, 9 F.3d 218 (2d Cir. 1993).
Moreover, NLRB v. Catherine McCauley Health Center,
supra, was decided before the Board’s health care unit rules
were established, and to the extent it relies on the Second
Circuit’s opinion in Long Island-Jewish-Hillside Medical
Center v. NLRB, 685 F.2d 29, 34 (2d Cir. 1982), which held
that the ‘‘single-facility presumption is inapplicable in the
health care context,’’ it was overruled in American Hospital
Assn. v. NLRB, supra, and Hotel, Hospital, Nursing Home &
Allied Services Employees Local 144 v. NLRB, supra. Thus,
the viability of the Catherine McCauley decision is question-
able. It should also be noted that the underlying Board deci-
sion in Catherine McCauley Health Center, 287 NLRB 1114
(1988), found a violation of the Act for the employer’s re-
fusal to recognize and bargain with the union that had rep-
resented a service and maintenance unit at the employer’s
separate facility for less than 1 year.
With regard to any claim by Respondent that the instant
matter raises a novel application of the Board’s health care
bargaining unit rules, Respondent correctly cites American
Hospital Assn. v. NLRB, supra, as upholding those rules. Al-
though noting that the Board specified only eight specific
bargaining units, with three exceptions, Respondent incor-
rectly asserts that none of the exceptions are applicable to the
instant proceeding. To the contrary, in one of the exceptions
the Board, with Supreme Court approval, found appropriate
preexisting nonconforming units. As the legal successor of
the IOL, Respondent stands in the IOL’s shoes with regard
to the application of the health care unit rules. Thus, if the
unit rules are applied to the combined Respondent-IOL be-
194 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
cause of its status as an acute care hospital, as contended by
Respondent, the exception for preexisting nonconforming
units mandates the continuing viability of the IOL unit as an
appropriate unit following the merger. See Kaiser Founda-
tion Hospitals, 312 NLRB 933 (1993), wherein the Board
held at 935:
Finally, the Board’s long-standing policy of accord-
ing great deference to collective-bargaining history also
supports our decision not to apply the Rule automati-
cally to preexisting nonconforming units. We conclude
that this result is consistent with the design and purpose
of our decision to engage in rulemaking—and to further
the long-standing policy of promoting industrial and
labor stability—and does not conflict with the Con-
gress’ admonition against undue proliferation of bar-
gaining units in the health care industry.
On the other hand, if the unit rules are applied to a sepa-
rate Respondent-owned IOL, the exception for psychiatric in-
stitutions would preclude the application of the unit rules and
establish beyond any question that the IOL unit continues to
exist as an appropriate unit following the merger. Either way,
the unit survives and continued recognition and bargaining is
clearly warranted.
As I find that the involved bargaining unit continues to be
an appropriate one within the meaning of Section 9(a) of the
Act, and as I have heretofore found that Respondent has an
obligation to bargain with the Union if the involved unit con-
tinues to be appropriate, I find that the Respondent’s refusal
to recognize the Union as the exclusive collective-bargaining
representative of its employees in the unit violates Section
8(a)(1) and (5) of the Act. I further find that its unilateral
changes in the wages, benefits, and working conditions of the
unit employees, as set forth in the expired collective-bargain-
ing agreement between the IOL and the Union, also violates
Section 8(a)(1) and (5) of the Act. NLRB v. Katz, 369 U.S.
736 (1962); Spruce-Up Corp., 209 NLRB 194, 195 (1974).
CONCLUSIONS OF LAW
1. Hartford Hospital is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act,
and is a health care institution within the meaning of Section
2(14) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Since March 1981, the Union has been the certified ex-
clusive bargaining representative of the employees in the fol-
lowing unit found appropriate within the meaning of Section
9(a) of the Act:
All full-time and regular part-time technical employ-
ees, including LPN’s, psychiatric technicians, residential
counselors, rehabilitation liaison instructors, rehabilita-
tion instructors, COTA’s, EEG technicians, X-Ray tech-
nicians, and dental technicians employed at the IOL fa-
cility, but excluding unit coordinators, rehabilitation co-
ordinators, electronics technician, audio-visual techni-
cian, dietary technician, all service and maintenance
employees, clerical employees and guards, professional
employees and supervisors as defined in the Act.
4. Since October 1, 1994, Respondent has engaged in con-
duct in violation of Section 8(a)(1) and (5) of the Act by:
(a) Failing and refusing to bargain with the Union as the
exclusive collective-bargaining representative of its employ-
ees in the above-described unit.
(b) Unilaterally changing the terms and conditions of em-
ployment of its employees in the above-described unit with-
out affording the Union notice and the opportunity to bargain
in good faith.
5. The foregoing unfair labor practices committed by Re-
spondent are unfair labor practices affecting commerce with-
in the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in conduct in
violation of Section 8(a)(1) and (5) of the Act, it is ordered
to cease and desist therefrom, and to take the following af-
firmative action deemed necessary to effectuate the policies
of the Act.
Respondent is ordered to recognize and, on request, bar-
gain with the Union as the exclusive collective-bargaining
representative of its employees in the unit found here to be
appropriate. It is further ordered, on request of the Union, to
rescind all unilateral changes it has made since October 1,
1994, in the wages, hours of service, benefits, and working
conditions of its employees in the involved bargaining unit
and to restore the status quo ante. It is not entirely clear from
the record evidence whether any of the unilateral changes the
Respondent unlawfully imposed on the bargaining unit em-
ployees adversely affected them. In the event it is shown
subsequently at the compliance stage that the involved em-
ployees have lost wages or benefits as a result of those
changes, Respondent should be ordered to make these em-
ployees whole for such losses. In this regard, backpay should
be computed in accordance with the Board’s formula set
forth in F. W. Woolworth Co., 90 NLRB 289 (1950), with
interest computed in the matter set forth in New Horizons for
the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended9
ORDER
The Respondent, Hartford Hospital, Hartford, Connecticut,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain with the Union as the
exclusive collective-bargaining representative of its employ-
ees in the following unit:
All full-time and regular part-time technical employ-
ees, including LPN’s, psychiatric technicians, residential
counselors, rehabilitation liaison instructors, rehabilita-
tion instructors, COTA’s, EEG technicians, X-Ray tech-
nicians, and dental technicians employed at the IOL fa-
cility, but excluding unit coordinators, rehabilitation co-
ordinators, electronics technician, audio-visual techni-
195HARTFORD HOSPITAL
10 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
cian, dietary technician, all service and maintenance
employees, clerical employees and guards, professional
employees and supervisors as defined in the Act.
(b) Unilaterally changing the terms and conditions of em-
ployment of its employees in the above-described unit with-
out affording the Union notice and the opportunity to bargain
in good faith.
(c) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the rights guaranteed by
Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Extend recognition to the Union as the exclusive col-
lective-bargaining representative of its employees in the
above-described unit.
(b) On request of the Union, rescind the unilateral changes
it instituted on and after October 1, 1994, in the wages, ben-
efits, hours of work, and other working conditions of its em-
ployees in the above-described unit, and restore the wages,
hours of work, and other working conditions as set forth in
the collective-bargaining agreement between the Union and
the IOL that expired on June 14, 1994.
(c) In the event it is subsequently shown that any employ-
ees affected by the unlawful unilateral changes made by Re-
spondent on and after October 1, 1994, have suffered loss of
wages or benefits, Respondent is ordered to make such em-
ployees whole, with interest, in the manner set forth in the
remedy section of this decision.
(d) Preserve, and on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(e) Post at the Respondent’s Hartford, Connecticut facili-
ties copies of the attached notice marked ‘‘Appendix.’’10
Copies of the notice, on forms provided by the Regional Di-
rector for Region 34, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecutive
days in conspicuous places including all places where notices
to the Respondent’s 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.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps 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 fail and refuse to bargain with New Eng-
land Health Care Employees Union, District 1199, AFL–CIO
as the exclusive collective-bargaining representative of our
employees in the following unit:
All full-time and regular part-time technical employees,
including LPN’s, psychiatric technicians, residential
counselors, rehabilitation liaison instructors, rehabilita-
tion instructors, COTA’s, EEG technicians, X-Ray tech-
nicians, and dental technicians employed at the IOL fa-
cility, but excluding unit coordinators, rehabilitation co-
ordinators, electronics technician, audio-visual techni-
cian, dietary technician, all service and maintenance
employees, clerical employees and guards, professional
employees and supervisors as defined in the Act.
WE WILL NOT unilaterally change the terms and conditions
of employment of our employees in thethe above-described
unit without affording the Union notice and the opportunity
to bargain in good faith over such changes.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of rights
guaranteed them by Section 7 of the Act.
WE WILL extend recognition to the Union as the exclusive
collective-bargaining representative of our employees in the
above-described unit.
WE WILL, on request of the Union, rescind the unilateral
changes we instituted on and after October 1, 1994, in the
wages, benefits, hours of work, and other working conditions
of our employees in the above-described unit, and restore the
wages, hours of work, and other working conditions as set
forth in the collective-bargaining agreement between the
Union and the Institute of Living that expired on June 14,
1994.
WE WILL, in the event it is subsequently shown that any
employees affected by the unlawful unilateral changes made
by the Employer on and after October 1, 1994, have suffered
loss of wages or benefits, make such employees whole, with
interest.
HARTFORD HOSPITAL