Lee's Summit Hospital & Health Midwest

National Labor Relations Board - Board Decisions

Mar 20, 2003

338 N.L.R.B. 841 (N.L.R.B. 2003)

LEE’S SUMMIT HOSPITAL & HEALTH MIDWEST 841
Lee’s Summit Hospital and Health Midwest and
Nurses United for Improved Patient Care

Medical Center of Independence and Health Midwest
and Mary Nash. Cases 17–CA–21072 and 17–
CA–21220
March 20, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
On September 28, 2001, Administrative Law Judge
Gerald A. Wacknov issued the attached decision. The
Respondents, Charging Party Mary Nash, and the Gen-
eral Counsel each filed exceptions and supporting briefs.
The Respondents and the General Counsel also filed an-
swering and reply briefs. In addition, the General Coun-
sel filed a motion to strike Respondents’ reply brief, the
Respondents filed a response to the motion to strike, the
General Counsel filed a surresponse, and the Respon-
dents filed a reply.1
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,2 and conclusions,3

1 We deny the General Counsel’s motion to strike.
2 The General Counsel and Charging Party Nash have excepted to
some of the judge’s credibility findings. The Board’s established policy
is not to overrule an administrative law judge’s credibility resolutions
unless the clear preponderance 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 exam-
ined the record and find no basis for reversing the findings.
3 In adopting the judge’s conclusion that the Respondent unilaterally
withheld the 2000 annual wage adjustment in violation of Sec. 8(a)(5),
we do not rely on the judge’s speculation as to the Respondent’s moti-
vation. As the judge stated elsewhere, “the Respondent’s specific
intent for withholding the annual wage adjustment is immaterial,”
citing Daily News of Los Angeles, 315 NLRB 1236, 1242 (1994), enfd.
73 F.3d 406 (D.C. Cir. 1996), cert. denied 519 U.S. 1090 (1997).
In adopting the judge’s dismissal of the allegation that the Respon-
dent unlawfully threatened massive layoffs of closure in the event of a
strike, we do so solely on the ground that the General Counsel did not
meet his burden of proving the allegation by a preponderance of the
evidence.
In adopting the judge’s finding that the Respondent violated Sec.
8(a)(5) by unilaterally withholding the 2000 annual wage adjustment,
we also adopt his finding that the wage adjustment had become an
established pattern and practice over many years, and therefore consti-
tuted a condition of employment that the Respondent was not free to
change unilaterally. Between 1996 and 1999, the Respondent granted a
general wage increase to the employees in all of the Health Midwest
health care institutions, including the employees at Lee’s Summit Hos-
pital, in the amount of 2, 2.5, 3, and 3 percent, respectively. In each of
these years, the Respondent based the amount of the adjustment on a
comparison of market wages and the Respondent’s profitability for the
and to adopt the recommended Order as modified4 and
set forth in full below.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondents, Lee’s Summit Hospital and Health Mid-
west, Kansas City, Missouri, their officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Unilaterally withholding the 2000 annual wage ad-
justment and any subsequent annual wage adjustments
from unit employees.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act.
(a) Make whole the unit employees for any monetary
losses they may have suffered by reason of the unilateral
withholding of annual wage adjustments that the em-
ployees would have received from 2000 to the present,
with interest, in the manner set forth in the remedy sec-
tion of the judge’s decision.
(b) Within 14 days after service by the Region, post at
the Respondent Lee’s Summit Hospital the attached no-
tice marked “Appendix.”5 Copies of the notice, on forms
provided by the Regional Director for Region 17, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places including

year. Moreover, we are not required to engage in any guesswork as to
whether the Respondent would have exercised its discretion to grant a
general wage adjustment in 2000, and if so, how much. This is because
the Respondent, in fact, granted a 3-percent general wage increase in
2000 to the employees in all of the Health Midwest health care institu-
tions, except of course the unit employees at Lee’s Summit Hospital.
Chairman Battista agrees with his colleagues. He notes, however, that
Respondent was not necessarily bound to give a wage increase and to
bargain from that point. The Union was certified in April 2000 for the
employees at Lee’s Summit. The Respondent could have proposed that
the past practice be discontinued at Lee’s Summit because wages were to
be collectively bargained there. Assuming that impasse on this proposal
had been reached by September, it would have been lawful for the Re-
spondent to discontinue the practice as to Lee’s Summit at that time.
4 We shall modify the judge’s recommended Order in accordance
with Indian Hills Care Center, 321 NLRB 144 (1996); Excel Con-
tainer, 325 NLRB 17 (1997); and Ferguson Electric Co., 335 NLRB 15
(2001). We shall also substitute a new notice in accordance with Ishi-
kawa Gasket America, 337 NLRB 175 (2001).
5 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.”
338 NLRB No. 116
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 842
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respon-
dent 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 cur-
rent employees and former employees employed by the
Respondent at any time since October 2, 2000.
(c) Preserve and, within 14 days of a request or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(d) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

APPENDIX

NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board had 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 unilaterally withhold the 2000 annual
wage adjustment from registered nurses in the following
collective-bargaining unit represented by Nurses United
for Improved Patient Care:

All full-time and regular part-time registered nurses
employed at Lee’s Summit Hospital at 530 NW
Murray Road, Lee’s Summit, Missouri, excluding all
other professional employees, office clerical employ-
ees, guards and supervisors as defined in the Act and all
other employees.

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 make whole the unit employees for any
monetary losses they may have suffered, with interest, by
reason of the withholding of annual wage adjustments
that the employees would have received from 2000 to the
present.

LEE’S SUMMIT HOSPITAL AND HEALTH
MIDWEST

David A. Nixon, Esq., for the General Counsel.
David L. Wing, Esq., Jeffrey M. Place, Esq., and Michael F.
Delaney, Paralegal (Spencer, Fane, Britt & Browne), of
Kansas City, Missouri, for the Respondents.
Joseph L. Hiersteiner, Esq. (General Counsel), of Kansas City,
Missouri, for Heath Midwest.
Walter R. Roher, Esq. (Roher & Wood), of Kansas City, Mis-
souri, for the Charging Parties.
DECISION
STATEMENT OF THE CASE
GERALD A. WACKNOV, Administrative Law Judge. Pursuant
to notice a hearing in this matter was held before me in Over-
land Park, Kansas, on August 14, 2001. The charge in Case 17–
CA–21072 was filed on the captioned case was filed on Febru-
ary 1, 2001, by Nurses United for Improved Patient Care (Un-
ion). Thereafter, on May 17, 2001, the Regional Director for
Region 17 of the Board (the Board) issued a complaint and
notice of hearing alleging a violation of Section 8(a)(1) and (5)
of the Act. The charge in Case 17–CA–21220 was filed by
Mary Nash, an individual, on May 31, 2001, alleging violations
of Section 8(a)(1) of the Act. Thereafter, on July 16, 2001, the
Regional Director issued an order consolidating cases, consoli-
dated complaint, and notice of hearing alleging that Lee’s Sum-
mit Hospital and Health Midwest and Medical Center of Inde-
pendence and Health Midwest (Respondents) had engaged in
violations of Section 8(a)(1) and (5) of the Act. The Re-
spondents, in their answer to the complaint, duly filed, deny
that they have violated the Act as alleged.
The parties were afforded a full opportunity to be heard, to
call, examine, and cross-examine witnesses, and to introduce
relevant evidence. Since the close of the hearing, briefs have
been received from counsel for the General Counsel (the Gen-
eral Counsel), counsel for the Respondents and counsel for the
Union and Charging Party Mary Nash. Upon the entire record,
and based upon my observation of the witnesses and considera-
tion of the briefs submitted, I make the following
LEE’S SUMMIT HOSPITAL & HEALTH MIDWEST 843
FINDINGS OF FACT
I. JURISDICTION
Respondent Health Midwest is engaged in the business of
owning and managing heath care institutions, including Lee’s
Summit Hospital and Medical Center of Independence, located
within the State of Missouri. Health Midwest maintains its
office in Kansas City, Missouri. In the course and conduct of its
business operations the Respondent Health Midwest annually
derives gross revenues in excess of $250,000 and purchases and
receives products, goods, and materials valued in excess of
$10,000 directly from points outside the State of Missouri.
Similarly, Lee’s Summit Hospital and Medical Center of Inde-
pendence are each directly engaged in interstate commerce and
each meets the Board’s jurisdictional standards for health care
institutions. It is admitted and I find that the Respondents
Health Midwest, Lee’s Summit Hospital, and Medical Center
of Independence are, and at all material times have been, em-
ployers engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted and I find that at all material times the Union is
and has been a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. Issues
The principal issues in this proceeding are whether the Re-
spondent Lee’s Summit Hospital and Heath Midwest unlaw-
fully withheld an annual wage increase from employees in vio-
lation of Section 8(a)(5) of the Act, and whether the Respon-
dent Medical Center of Independence and Health Midwest
unlawfully threatened employees that reprisals would result if
the Union was voted in to their facility, in violation of Section
8)a)(1) of the Act.
B. Facts and Analysis
On April 24, 2000, the Union was certified as the exclusive
collective-bargaining representative for all full-time and regular
part-time registered nurses employed at Lee’s Summit Hospital.
Apparently commencing in 1994, the Respondent Health
Midwest, as part of its budgeting process, has determined
whether or not to grant a general wage adjustment to all em-
ployees of health care institutions under the Health Midwest
umbrella, including the employees at Lee’s Summit Hospital,
and, taking into account market conditions, the amount of the
wage adjustment. These wage adjustments are announced and
implemented in the early fall of each year. Since 1994, and
with the exception of 1995, when no wage adjustment was
granted, the Respondent has granted a general wage adjust-
ments each year. Since 1996, and continuing through the year
2000, a period of 5 years, the Respondent has granted a general
wage adjustment to all employees at each of its approximately
9 or 10 health care institutions in the amount of 2, 2.5, 3, 3, and
3 percent respectively, with the exception of the Lee’s Summit
Hospital registered nurses who are represented by the Union, as
noted below.
On September 19, 2000, Joseph Hiersteiner, senior vice
president and general counsel for Health Midwest, sent an
email, entitled “Wage Adjustment” to the Union, that states,
inter alia, as follows:

Today, Health Midwest will announce a wage adjustment, ef-
fective with pay periods beginning October 2, 2000, that will
affect most employees. Of course at the appropriate time, we
will be bargaining all economic issues, including wages, in
our negotiations concerning the Lee’s Summit Hospital
nurses. They will not be receiving an increased [sic] based
upon the announcement today.

The Respondent and the Union had commenced bargaining
negotiations prior to September 19, 2000, and had agreed to
defer economic issues to a later stage of bargaining. On Sep-
tember 25, 2000, during the first bargaining session following
the foregoing email to the Union, and prior to the time any
economic issues had been discussed, the Union protested the
Respondent’s action and stated that the unit employees should
receive the 3-percent general wage adjustment. The Respon-
dent’s chief negotiator, Gina Kaiser, an attorney who was hired
to negotiate the contract on behalf of the Respondent, advised
the union representatives that the wage increase was appropri-
ately a subject of bargaining and that the Respondent needed to
know what the Union’s overall economic proposal might be
before it could determine whether a 3-percent wage adjustment
for bargaining unit employees would be appropriate. Kaiser
also stated, however, in the alternative, that if the Union was
willing to agree that the 3-percent increase would constitute the
first year’s increase under the contract, then Kaiser would
recommend that the unit employees be given the 3-percent
wage adjustment at the same time as the other employees. The
Union would not so agree.
Senior Vice President and General Counsel Hiersteiner testi-
fied as follows regarding the matter:

I consulted with people regarding other aspects of the decision
and came to the conclusion that because the wage adjustment
was a discretionary matter, in fact, it had not been given in
one year [1995], that it would be improper for us simply to
implement it and that it was a matter that should be covered
by negotiations.

It is clear, and I find, that the annual wage adjustment had
become an established pattern and practice over a period of
many years, and therefore constituted a condition of employ-
ment which the Respondent was not at liberty to unilaterally
change. The fact that there was some discretion in the amount
of the annual increase, and that in fact no increase was granted
in 1995, apparently due to economic conditions, is insufficient
to alter this finding. During each year since 1994, all the Re-
spondent’s employees had been treated identically, and the
Respondent was not privileged to change this pattern at its
whim in order to give it an advantage at the bargaining table.
Daily News of Los Angeles, 304 NLRB 511 (1991); Daily News
of Los Angeles, 315 NLRB 1236 (1994). The Respondent’s
reliance upon Stone Container Corp., 313 NLRB 336 (1993), is
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 844
misplaced.1 Accordingly, I find that the Respondent’s failure to
grant the annual wage adjustment to the represented nurses is
violative of Section 8(a)(1) and (5) of the Act, as alleged.
While under the circumstances, the Respondent’s specific in-
tent for withholding the annual wage adjustment is immaterial,2
the various explanations provided by the Respondent to justify
its conduct do seem to shed some light on its true motive. Thus,
Senior Vice President Hiersteiner testified that because he be-
lieved the wage adjustment was discretionary, “it would have
been improper for us simply to implement it.” This testimony
strongly presupposes a consistent corollary belief that it would
not have been improper to implement it if the Union was agree-
able. Here, the Union was not only agreeable but insistent.
Therefore, under Hiersteiner’s rationale there would seem to be
no impediment to the granting of the increase, yet, for an unex-
plained reason, the Respondent elected not to do so. Further,
Hiersteiner’s foregoing rationale for withholding the wage in-
crease differs from the explanation advanced by Kaiser,
namely, that the automatic granting of the increase would give
the Union an advantage and/or the Respondent a disadvantage
in bargaining economic issues. The advancing of improbable
and inconsistent rationales for particular conduct is suspect, and
is supportive of a discriminatory intent.
In May 2001, during the course of Respondent’s preelection
campaign at Respondent’s Medical Center of Independence
hospital, Kaiser, on behalf of the Respondent, conducted a se-
ries of some seven apparently lengthy meetings among groups
of nurses, with approximately 35 nurses in attendance at each
meeting. During the presentations by Kaiser, those in the audi-
ence would ask questions and Kaiser would answer them. It is
alleged that at one of these meetings Kaiser was asked by an
employee, Stephanie Srader, who was not a member of the
agreed-upon bargaining unit, what would happen in the event
of a strike at the hospital. According to the testimony of Mary
Nash, Cara Busenhardt, and Jo Ann Still, all of whom are ac-
tive union supporters, Kaiser succinctly replied, without elabo-
ration or explanation, that in the event of a strike there could (or
would) be massive layoffs and the hospital could (or would)
close.
Kaiser, Teddy Jackson, regional director for human re-
sources, and Michelle Smith, vice president for patient services,
recalled that someone asked a question about what would hap-
pen at the hospital in the event of a strike. Each testified that
Kaiser responded by stating that in the event of a strike by the
RNs, and if there were a decrease in census or patients to be
cared for at the hospital, there was the possibility that there
would be layoffs and that the staff could be redeployed to other
Health Midwest hospitals. Nothing was said about “massive”
layoffs or “closure” of the hospital.

1 See the Board’s discussion and analysis of Stone Container in
Daily News of Los Angeles, 315 NLRB 1236, 1240 (1994).
2 See NLRB v. Katz, 396 U.S. 736 (1962).
After carefully considering the testimony of each of the wit-
nesses, and the parties’ very comprehensive briefs on this issue,
find that each of them were attempting to give a truthful ac-
count of Kaiser’s statement to the best of their recollections. It
seems likely that if Kaiser did make such a statement to the
effect that, without more, a strike would result in massive lay-
offs and closure of the hospital, in other words, threaten to
close the hospital in the event of a strike, those active union
proponents in attendance, who apparently were not hesitant to
speak up at the meeting and in fact did so, would have asked
Kaiser to elaborate; the fact that they did not speak up indicates
that they did not take the statement as a threat. Nor was em-
ployee Srader, who asked the question, called as a witness by
either party. Indeed, Srader, who was not included within the
bargaining unit, might be a most disinterested witness and the
most likely person to have listened attentively to the response.
Under the circumstances, I am simply unable to determine pre-
cisely what Kaiser said in response to the question. Accord-
ingly, I shall dismiss this allegation of the complaint.
CONCLUSIONS OF LAW
1. The Respondents are employers engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Union is the exclusive bargaining representative of
Respondent’s employees in the following appropriate unit:

All full-time and regular part-time registered nurses employed
at Lee’s Summit Hospital at 530 NW Murray Road, Lee’s
Summit, Missouri, EXCLUDING all other professional employ-
ees, office clerical employees, guards and supervisors as de-
fined in the Act and all other employees.

4. By unilaterally withholding the 2000 annual wage ad-
justment from unit employees the Respondent has violated and
is violating Section 8(a)(1) and (5) of the Act as set forth
herein.
THE REMEDY
Having found that the Respondent has violated and is violat-
ing Section 8(a)(1) and (5) of the Act, I recommend that it be
required to cease and desist therefrom and from in any other
like or related manner interfering with, restraining, or coercing
its employees in the exercise of their rights under Section 7 of
the Act. It is recommended that the unit employees be made
whole for the 2000 annual wage increase they would have re-
ceived, and for any other increase in wages that would have
automatically resulted from timely receiving the 2000 annual
wage increase. The amounts shall be computed on a quarterly
basis in the manner set forth in F. W. Woolworth Co., 90 NLRB
289 (1950), plus interest as computed in New Horizons for the
Retarded, 283 NLRB 1173 (1987). Further, the Respondent
shall be required to post an appropriate notice to employees.
[Recommended Order omitted from publication.]