Mt. Sinai Hospital

National Labor Relations Board - Board Decisions

Jul 31, 2000

331 N.L.R.B. 895 (N.L.R.B. 2000)

MT. SINAI HOSPITAL 895
Mt. Sinai Hospital and 1199, National Health and Hu-
man Service Employees Union. Case 2–CA–28197
July 31, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND HURTGEN
On September 18, 1997, Administrative Law Judge Mi-
chael A. Marcionese issued the attached decision. The
Respondent filed exceptions and a supporting brief. The
General Counsel and the Charging Party filed answering
briefs, and the Respondent filed a reply brief.
The National Labor Relations Board has delegated its
authority in this matter to a three-member panel.
The Board has considered the decision and the record in
light of the exceptions and briefs and has decided to affirm
the judge’s rulings, findings,1 and conclusions2 and to adopt
the recommended Order.
ORDER
The National Labor Relations Board adopts the recom-
mended Order of the administrative law judge and orders
that the Respondent, Mt. Sinai Hospital, New York, New
York, its officers, agents, successors, and assigns, shall take
the action set forth in the Order.

1 The Respondent has excepted to some of the judge’s credibility find-
ings. 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 examined the record and find no basis for reversing the find-
ings.
2 In rejecting the Respondent’s argument that the Union waived its right
to bargain over the January 1995 removal of sous chefs from the unit to the
assistant culinary manager (ACM) position, we apply the well-settled “clear
and unmistakable” standard. Metropolitan Edison Co. v. NLRB, 460 U.S.
693 (1983). However, even under the “contract coverage” test applied by
our concurring colleague, we would reach the same result.
We further agree with the judge that Respondent’s unilateral action con-
stituted a change in the scope of the unit. As the Board stated in Holy Cross
Hospital, 319 NLRB 1361 (1995), once a position has been included within
the scope of the unit, the employer cannot remove it without the consent of
the union or the Board. Here, the parties agreed to arbitrate the unit status of
the sous chefs, and the arbitrator placed them in the unit. The Respondent
effectively removed the position of sous chef from the unit when it reclassi-
fied the three employees who occupied the position but continued to have
them do the same work. Moreover, the unit sous chef position, that the
Respondent subsequently posted was substantially altered. Thus, the Re-
spondent violated Sec. 8(a)(5) of the Act by reclassifying the position in
order to remove it from the unit. There is no dispute that the Respondent
never consulted with the Union and that the Union never agreed in the
contract to the alteration.
Finally, we agree with the judge’s alternative rationale—and the one on
which our concurring colleague relies, that even were the Respondent’s
unilateral change to constitute a transfer of unit work, rather than an altera-
tion of the unit, the Respondent violated Sec. 8(a)(5) because there had been
no agreement, impasse, or waiver.
MEMBER HURTGEN, concurring in part.
I agree with my colleagues and the judge that the Re-
spondent violated Section 8(a)(5) by refusing to provide the
Union with requested information and by unilaterally re-
classifying the sous chefs as assistant culinary managers
(ACMs). With respect to the latter 8(a)(5) violation, how-
ever, I find it unlawful only as a unilateral transfer of unit
work.
I agree with my colleagues that the sous chefs were unit
employees prior to Respondent’s action. I assume ar-
guendo, as did the judge, that the new ACM position was a
supervisory one. In my view, an employer does not have to
bargain about the creation of a supervisory position. Nor
does an employer have to bargain about the filling of that
supervisory position. However, where, as here, a unit em-
ployee is selected for the supervisory position, and the
promoted employee takes with him some of his unit work,
the employer must bargain about that removal of work
from the unit.1 That is the situation here. Indeed, Respon-
dent’s ACMs spend most of their time performing unit
work. Thus, Respondent’s unilateral removal of unit work
was unlawful.
The judge and my colleagues rejected the Respondent’s
waiver defense under the “clear and unmistakable waiver”
analysis of Metropolitan Edison Co. v. NLRB, 460 U.S.
693 (1983). In my view, the “contract coverage” analysis,
set forth by the D.C. Circuit in NLRB v. Postal Service, 8
F.3d 832 (1993), rather than “clear and unmistakable
waiver” analysis, is the appropriate test to determine
whether the Respondent was obligated to bargain. As I
have said elsewhere, where a contract clause is offered as a
defense, our task is simply to interpret the language of that
clause.2
Here, the management rights clause provides that the Re-
spondent retains the exclusive right to “discontinue, reor-
ganize or combine any operation even if the effect is a re-
duction in unit work or in the number of unit employees.”
In my view, the decision to transfer work out of the unit
does not fall within this language. Therefore, under a “con-
tract coverage” analysis, the Respondent was not privileged
to act unilaterally.
Nor do I find a privilege based on the Union’s failure to
secure a contract provision limiting performance of unit
work by supervisors. The Respondent argues that during
1992 contract negotiations, the Union proposed language
addressing its concern that, by creating new nonunit posi-
tions to perform unit work, the Respondent was eroding the
bargaining unit. The Union’s proposal was not adopted.
However, the parties agreed to maintain the status quo, i.e.,
the Union would continue to challenge the Respondent’s
efforts to allow supervisors to perform unit work. The par-
ties agreed to monitoring provisions, and an expedited me-
1 Legal Aid Bureau, 319 NLRB 159 (1995).
2 Central Illinois Public Service Co., 326 NLRB 928, 943 fn. 23 (1998);
Dorsey Trailers, Inc., 327 NLRB 835 (1999).
331 NLRB No. 111
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 896
diation/arbitration procedure. In addition, the parties
agreed to treat the 1992 discussions on this subject as “non-
precedential.” That is, they expressly agreed that neither
would use statements or proposals made during negotia-
tions against the other in any future proceedings, including
arbitrations and NLRB proceedings. Based on the above,
bargaining history does not establish a Respondent privi-
lege.
Finally, I agree with the judge that an employer privilege
may not be inferred from the 1992 adoption of monitoring
and enforcement provisions. These provisions merely es-
tablished a procedure for investigating claims of erosion of
the bargaining unit. These provisions cannot be construed
as the grant of a privilege to refuse to bargain about the
transfer of work out of the unit.
I reject the Respondent’s defense that the Board should
“Collyerize” this case, i.e., send the parties to the arbitrator
for him to determine whether Respondent was privileged to
transfer the unit work. Concededly, as discussed above, the
dispute turns on the meaning of the contract. However,
Respondent unlawfully refused to supply information rele-
vant to that dispute. Under Board law, a refusal to supply
information is not subject to Collyer deferral.3 And, in the
instant case, that information was inextricably related to the
matter on which deferral is sought (the transfer of unit
work). Where, as here, an employer unlawfully refuses to
provide information relevant to a potential grievance con-
cerning transfer of work, I would not find merit to an em-
ployer argument that the case should be deferred to griev-
ance-arbitration.
In sum, I would not “Collyerize” this case, and I would
find that the Respondent was not privileged to refuse to
bargain over the transfer of work.
In view of the limited nature of the violation that I would
find, the remedy that I would impose would permit Re-
spondent to retain the supervisory positions and to retain
the persons occupying those positions. However, the Re-
spondent would have to return the unit work back to the
unit, bargain about any future removal, and supply the rele-
vant information.

Nancy K. Reibstein and Susannah Z. Ringel, Esqs., for the General
Counsel.
David R. Marshall and Michael Davis, Esqs., of New York, New
York, for the Respondent.
Sherri Levine and Daniel J. Ratner, Esqs., of New York, New
York, for the Charging Party.
DECISION
STATEMENT OF THE CASE
MICHAEL A. MARCIONESE, Administrative Law Judge. This
case was tried in New York, New York, on various dates between
February 24 and April 4, 1997. The charge was filed by 1199,
National Health and Human Service Employees Union (the Un-

3 Postal Service, 302 NLRB 918 (1991).
ion), on February 15, 1995, and amended on June 12, 1995.1 The
complaint issued August 8, 1996.
The complaint, as amended at the hearing, alleges that Mt. Si-
nai Hospital (Respondent) violated Section 8(a)(5) and (1) of the
Act by, unilaterally and/or without the Union’s consent, bestowing
supervisory authority upon a sous chef position that had been
included in the bargaining unit by an arbitrator and reclassifying
the position as “assistant culinary manager” in order to remove the
position from the unit. The complaint further characterized Re-
spondent’s conduct as an attempt to erode the bargaining unit.
Finally, the complaint alleges that Respondent failed and refused
to furnish the Union, upon request, with information regarding the
disputed classification. Respondent, in its answer, denied the
specific allegations in the complaint and raised several affirmative
defenses based upon the 10(b) statute of limitations, waiver, and
deferral to arbitration.
Respondent filed a motion for deferral to arbitration on Febru-
ary 21, 1997, several days before the hearing opened. This motion
was opposed by the General Counsel and the Charging Party. At
the outset of the hearing, I denied the motion as an untimely filed
Motion for Summary Judgment to the extent it sought dismissal of
the complaint. I advised the parties that I would defer ruling on
the deferral request in the motion until after I had heard evidence
and received briefs from the parties. The deferral issue will be
addressed infra.
On the entire record,2 including my observation of the de-
meanor of the witnesses, and after considering the briefs filed by
the General Counsel, Respondent, and Charging Party, I make the
following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, operates a hospital at its facility
in New York, New York, where it annually derives revenues in
excess of $1 million and purchases and receives goods and sup-
plies valued in excess of $5000 directly from points outside New
York State. The Respondent admits and I find that it is an em-
ployer engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Overview
The Respondent is a member of the League of Voluntary Hos-
pitals and Homes of New York (the League). The League acts as
the collective-bargaining agent for its members in negotiations
with the Union for various bargaining units. As a member, Re-
spondent is party to a collective-bargaining agreement with the
Union covering a unit of service and maintenance employees,
which is the unit pertinent here. The agreement in effect at the
time of the events in dispute was effective for the period July 1,
1992, through June 30, 1995. On September 17, 1994, the League
and the Union signed a memorandum agreement extending the
1992–1995 collective-bargaining agreement through June 30,
1998, with modifications.
1 All dates are in 1995 unless otherwise indicated.
2 Respondent’s unopposed motion to correct the transcript is granted and
received in evidence as R. Exh. 76. GC Exh. 9 and R. Exh. 60 were inad-
vertently included in the record even though they were neither offered nor
received. I have stricken them from the record.
MT. SINAI HOSPITAL 897
There is no dispute that, in about June 1993, Respondent
opened a new unit called the 11 west private unit. This unit was
created to provide private-paying patients with accommodations
and services equivalent to that available in a four-star hotel, in-
cluding gourmet meals on demand for the patient and guests.
Respondent created several new positions to staff this unit because
the type and quality of services provided to patients were intended
to be significantly different than those provided to patients in the
remainder of the hospital. In addition, to ensure higher quality
food service and the ability to satisfy the demands of high-paying
patients, a separate kitchen was established on the unit, with its
own staff. Included in the new positions created to staff the 11
west kitchen were sous chefs.
A controversy arose over the unit placement of the sous chefs,
with Respondent taking the position that they were statutory su-
pervisors and the Union arguing for their inclusion in the unit.
The matter was referred to arbitration under the collective-
bargaining agreement, with hearings held on June 27 and August
15, 1994. The arbitrator, Richard Adelman, issued his award on
December 14, 1994, determining that the sous chefs should be in
the bargaining unit and remanding the matter to the parties to
negotiate the terms of employment for this position. In reaching
his decision, Arbitrator Adelman specifically found that the sous
chefs were not supervisors as defined in the Act. He summarized
the evidence before him as follows:

In short, the evidence demonstrates that the sous chefs
who work in the kitchen on 11 West spend at least 90% of
their work time performing bargaining unit functions, and al-
though they may perform occasional supervisory functions,
these functions are either of a routine nature that do not re-
quire the exercise of any independent judgment, or, at the
time of the hearing, these functions have been performed too
sporadically or infrequently by the sous chefs to provide a
basis for concluding that the sous chefs on 11 West are su-
pervisors. Rather, the sous chefs work as lead persons in the
kitchen, and, as such, are employees who should be in the
unit.

Earlier in his decision, Arbitrator Adelman rejected the Union’s
contention that the unit status of the sous chefs must be deter-
mined as of the date 11 west opened and that, once established as
a unit position, could not be altered during the term of the agree-
ment. In discussing this contention, Arbitrator Adelman inter-
preted the contract as permitting Respondent to exclude the posi-
tion during the term of the contract, even if the position started out
as an employee, if the employee thereafter began to perform func-
tions that would give the position supervisory status. According
to the arbitrator: “[T]here is no contractual or statutory provision
which prevents the Hospital from excluding supervisors at the
point that such employees attain supervisory status.” It is Respon-
dent’s actions in response to Arbitrator Adelman’s award which
form the basis of the complaint’s allegations.
There is no dispute that a meeting was held on January 19, for
the ostensible purpose of negotiating the wage rate for the newly
included unit sous chef position. There is also no dispute that
Respondent’s director of labor relations, Glenn Courounis, in-
formed the Union for the first time at this meeting that the three
individuals who held the sous chef position at the time of the arbi-
trator’s award now occupied a new nonunit position called assis-
tant culinary manager (ACM) and that Respondent would post
one unit sous chef position. Courounis quoted a salary for the new
unit sous chef of $536/week. There is a dispute whether this was
merely a proposal for the Union to consider. There is also a dis-
pute as to whether the Union’s representative, Estela Vazquez,
requested any information from Respondent and whether Respon-
dent provided any information during this meeting.
Based on these rather simple facts, a host of issues have been
raised by the pleadings and the parties’ positions stated at the
hearing. Specifically, I must determine:
1. Whether the allegations of the complaint are time barred un-
der Section 10(b) of the Act because the sous chef position was
created in May 1993.
2. Whether the Board should defer to Arbitrator Adelman’s
award pursuant to Spielberg Mfg. Co., 112 NLRB 1080 (1955),
and if so, whether that award permits the actions Respondent took.
3. Whether the Board should defer the dispute regarding the
January 1995 change of incumbent sous chefs to ACMs to the
contractual grievance/arbitration procedures under Collyer Insu-
lated Wire, 192 NLRB 837 (1971).
4. Whether the sous chef and/or ACM positions were statutory
supervisors.
5. Whether Respondent had any obligation under Section
8(a)(5) and (d) of the Act to notify and bargain with the Union
before taking the action it did in January 1995.
6. Whether the Union waived any right it had to bargain about
this matter through contract language or bargaining history.
7. Whether the Union requested and Respondent failed to pro-
vide any relevant and necessary information at the January 19,
1995 meeting.
8. If the Union requested such information, whether the Union
waived any statutory right it had to the information by agreeing to
a contract provision requiring Respondent to regularly disclose
information regarding nonunit positions.
In addition, numerous procedural and evidentiary issues were
raised in the course of the hearing and ruled upon at that time. To
the extent these rulings are still in contention, I reaffirm my rul-
ings made at the hearing.3
Finally, while every apparent or nonapparent conflict in the
evidence may not have been specifically resolved here, my find-
ings are based on my examination of the entire record, my obser-
vation of the witnesses’ demeanor while testifying, and my
evaluation of the reliability of their testimony. Accordingly, any
testimony which is inconsistent with or contrary to my findings is
hereby discredited.
B. Section 10(b)
Respondent argues that the sous chefs have been supervisors
since the position was created in 1993 and that no change in their

3 At the hearing, I rejected the Charging Party’s attempt to exclude evi-
dence as to the supervisory status of sous chefs during the period prior to
Arbitrator Adelman’s award under the theory that the arbitrator’s decision
was the “law of the case.” In the absence of deferral, the arbitrator’s deci-
sion is not binding on the Board. See J. R. Simplot Co., 311 NLRB 572,
573 fn. 9 (1993). The Charging Party also sought to exclude evidence
regarding collective-bargaining negotiations in 1992 based on a purported
agreement between the League and the Union that neither party could use
statements and demands made in those negotiations as evidence in any
forum, including NLRB proceedings. Such an agreement is also not bind-
ing on the Board, assuming arguendo, that there was an agreement. I also
limited admission of evidence regarding supervisory status to the period
from creation of the sous chef position through calendar year 1995 in order
to avoid undue delay and waste of time (see Fed.R.Evid. 403). Because the
record contains ample evidence of the sous chef/ACM’s duties and respon-
sibilities prior to 1996, receipt of evidence beyond that point would be cu-
mulative and have protracted the litigation unreasonably.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 898
duties and responsibilities occurred in January 1995. In support of
this argument, Respondent’s counsel took the position that the
only thing that happened in January 1995 was a change in title.
Under this view of the case, any obligation Respondent had to
bargain would have arisen in 1993, more than 6 months before the
instant charge was filed. The General Counsel argues that the
complaint’s allegations are based solely on Respondent’s actions
in January 1995, after issuance of Arbitrator Adelman’s award,
and that the underlying charge was filed within 6 months of these
events.
Although Respondent is correct that any allegation that Re-
spondent refused to bargain with the Union about the creation of
the sous chef position is barred by Section 10(b) of the Act, the
complaint before me contains no such allegation and I will make
no finding as to the lawfulness of Respondent’s actions in 1993.
Rather, the issues before me, as alleged in the complaint, are
whether Respondent’s promotion and/or reclassification of the
individuals occupying the position of sous chef in December 1994
to ACMs in January 1995 violated Section 8(a)(5) and whether
any information requested by the Union was unlawfully withheld
in January 1995. I note that Respondent’s own witnesses, Cour-
ounis, Hogarty, and former Executive Chef Cynthia Narduli, con-
ceded that a change did occur in January 1995 beyond a mere
change in title and that this change was specifically for the pur-
pose of addressing the arbitrator’s award. Thus, Section 10(b)
does not bar consideration of this conduct as a potential unfair
labor practice.
C. Deferral
1. Spielberg deferral
As noted above, the parties have already submitted their dispute
over the unit placement of sous chefs to arbitration, which resulted
in the December 1994 award from Arbitrator Adelman. Although
it is Respondent who formally moved for deferral to that award
pursuant to Spielberg Mfg. Co., supra, and Olin Corp., 268 NLRB
573 (1984), the General Counsel and the Charging Party essen-
tially seek the same result, for different reasons, when they argue
that Arbitrator Adelman’s finding that sous chefs are not supervi-
sors is the “law of the case.”
Under the policy announced in Spielberg and Olin, the Board
will defer to an arbitration decision when (1) the arbitral proceed-
ings appear to have been fair and regular, (2) all parties have
agreed to be bound by the results of arbitration, (3) the arbitrator
has considered the unfair labor practice issues, and (4) the arbitra-
tor’s decision is not clearly repugnant to the policies and purposes
of the Act. The Board has held that the party seeking to have the
Board ignore the determination of the arbitrator has the burden to
show that the standards for deferral have not been met. Olin,
supra at 573–574. On the other hand, the Board has held that it
will not defer to arbitration those issues which fall within the
scope of its primary jurisdiction, i.e., determinations of questions
concerning representation, accretion and appropriate unit. Marion
Power Shovel, 230 NLRB 576 (1977). Thus, it is necessary to
determine what was the nature of the dispute submitted to Arbitra-
tor Adelman for resolution.
As stated at the beginning of the arbitrator’s decision, the par-
ties agreed that the issue before him was whether the sous chefs
on 11 west should be in the bargaining unit. Resolution of this
issue turned solely on whether they were statutory supervisors.
Thus, it is apparent that the arbitrator was not faced with a ques-
tion of contract interpretation, but rather interpretation of the stat-
ute and its application to the dispute in order to determine the
representational rights of a new group of employees. See Hill-
Rom Co., 297 NLRB 351, 357–359 (1989), enf. denied on other
grounds 957 F.2d 454 (7th Cir. 1992); Brunswick Corp., 254
NLRB 1120, 1121 (1981); and Peerless Publications, 190 NLRB
658 (1971). Cf. St. Mary’s Medical Center, 322 NLRB 954
(1997) (the Board held that deferral to arbitrator’s decision that
working chef should be included in the unit was appropriate be-
cause issue before the arbitrator was whether contractual language
excluding employees with 600 hours of training applied to the
working chef and arbitrator determined intent of the parties was
that this exclusion did not apply. The Board then decided the
accretion issue itself).
The instant case is distinguishable from those relied on by Re-
spondent where the issue was whether contractual provisions
permitted unilateral action by an employer, notwithstanding any
statutory bargaining obligation. Resolution of the ultimate issue in
those cases did not rest solely on interpretation of the statute, but
turned on contract interpretation. See, e.g., Dennison National
Co., 296 NLRB 169 (1989) (involving employer’s elimination of
a bargaining unit position); Reichhold Chemicals, 275 NLRB
1414 (1985) (involving promotion of unit employees to nonunit
supervisory positions). In those cases, the dispute as characterized
by the Board, did not involve unit placement or representation
issues, but whether the employer had the contractual right to take
unilateral action affecting employees’ wages, hours, and terms and
conditions of employment. Moreover, there was no allegation in
those cases that the employer’s conduct constituted an alteration in
the scope of the bargaining unit. The arbitrator was thus, called on
to interpret the contract to determine whether the Union had
waived its right to bargain over these subjects rather than to de-
termine whether the Union had the right to represent a disputed
class of employees.
Moreover, even were I to agree with Respondent that the dis-
pute before Arbitrator Adelman was subject to the Board’s Spiel-
berg and Olin deferral policies, I would not defer to that portion of
his award on which Respondent relies, i.e., the language appar-
ently authorizing Respondent to unilaterally remove a unit posi-
tion “at the point that such employees attain supervisory status.”
Although the arbitrator was addressing a contention raised by the
Union in this part of his decision, this discussion is nothing more
than dicta, because it was not necessary to resolution of the issue
before him as he and the parties themselves framed it. Arbitrator
Adelman was called on to determine the unit status of the sous
chefs based on the evidence before him. Having done that, it was
nothing more than speculation for him to consider what rights the
employer had in futuro with respect to that position.
Finally, to the extent it might be argued that this portion of the
arbitration award is not dicta, deferral would nevertheless be im-
proper. The arbitrator’s opinion that “no . . . statutory provision
. . . prevents the Hospital from excluding supervisors at the point
that such employees attain supervisory status” is “clearly repug-
nant to the purposes and policies of the Act.” Significantly, Arbi-
trator Adelman did not interpret the contract as either waiving the
Union’s right to bargain before such a change or as consenting to
a midterm exclusion of a unit classification based on unilateral
delegation of supervisory authority by the Employer. He relied
solely on the exclusion of supervisors from the unit description to
reach this conclusion. It is well-established Board law that once a
position has been included in a bargaining unit, by Board determi-
nation or consent of the parties, an employer cannot remove the
position without the consent of the Union. See Holy Cross Hospi-
tal, 319 NLRB 1361 (1995), and cases cited therein. Thus, Arbi-
MT. SINAI HOSPITAL 899
trator Adelman’s determination of Respondent’s rights with re-
gard to future treatment of the sous chefs is not “susceptible to an
interpretation consistent with the Act.” Olin, supra at 577.
Accordingly, I decline deferral to the December 1994 award of
Arbitrator Adelman in all respects. It will thus, be necessary to
determine de novo whether the sous chefs who were promoted
and/or reclassified to ACMs in January were supervisors within
the meaning of the Act when Respondent took the actions it did.
2. Collyer deferral
Respondent also argues that any dispute regarding Respon-
dent’s January actions in response to Arbitrator Adelman’s award
should be deferred under the Board’s prearbitral deferral policies
announced in Collyer, supra, and United Technologies, 268
NLRB 557 (1984). Respondent argues that the collective-
bargaining agreement contains specific provisions governing the
dispute regarding the ACMs, including resolution of such disputes
through arbitration. Respondent further argues that Arbitrator
Adelman, in remanding the case to the parties to negotiate the
wage rate for the sous chefs, retained jurisdiction for 60 days to
hear evidence and argument as to the appropriate remedy in the
event the parties were unable to agree. Respondent contends that
the Union’s claims as to the ACM position is a claim of
noncompliance with the award and should be referred back to the
arbitrator, stating its willingness to extend the retention period
under that award. The General Counsel and the Charging Party
oppose prearbitral deferral on the grounds that Respondent’s con-
duct in January also raises representation issues which the Board
has historically declined to defer, that the 8(a)(5) information
request allegations are not deferrable under established Board
policy, and that Respondent’s conduct evidences a rejection of the
principles of collective bargaining.
The Board generally will defer resolution of unfair labor prac-
tice allegations to a contractual grievance/arbitration procedure
where (1) the dispute arises in the context of a long and productive
collective-bargaining relationship; (2) there is no claim of em-
ployer enmity to employees’ exercise of protected rights; (3) the
parties’ collective-bargaining agreement provides for arbitration in
a broad range of disputes and the arbitration clause clearly en-
compasses the dispute at issue; (4) the Employer has asserted its
willingness to submit the dispute to arbitration; and (5) the dispute
is eminently well suited to resolution by arbitration, in that the
contract and its meaning lay at the center of the dispute. Clarkson
Industries, 312 NLRB 349 (1993). Similar to its practice under
Spielberg, the Board will not defer, under Collyer, disputes raising
issues as to unit scope, composition and representation of employ-
ees. See McDonnell Douglas Corp., 312 NLRB 373, 375 (1993),
enf. denied and remanded 59 F.3d 230 (D.C. Cir. 1995); Marion
Power Shovel Co., supra; and Commonwealth Gas Co., 218
NLRB 857 (1975). The Board also will generally not defer in-
formation request allegations to arbitration. Clarkson Industries,
supra, and cases cited therein. Cf. United Aircraft Corp., 204
NLRB 879 (1972), enfd. 525 F.2d 237 (2d Cir. 1975) (the Board
deferred information request allegation to arbitration where collec-
tive-bargaining agreement specified type of information the em-
ployer was obligated to provide at step 1 of grievance procedure
and the complaint raised issue whether this was a waiver of the
union’s right to other information).4

4 It is unclear whether this decision is still good law in light of the
Board’s later decisions in Postal Service, 280 NLRB 685, fn. 2 (1986), and
United Technologies, 274 NLRB 504, 505 (1985), suggesting that it will
The contract’s grievance/arbitration provisions (arts. XXXI and
XXXII) broadly define a grievance as “a dispute or complaint
arising between the parties . . . under or out of this agreement or
the interpretation, application, performance, termination or any
alleged breach thereof” and provides for arbitration of any such
grievance which is not settled through the first three steps and
through a separate mediation step (art. XXXIA) added in 1992
which is available for certain types of grievances. Moreover, the
contract contains a specific procedure (art. XXVII, sec. 4), also
included as a result of the 1992 negotiations, for monitoring and
enforcement of the recognition and subcontracting provisions of
the contract, which also provides for submission to expedited
mediation and arbitration of any dispute regarding, inter alia,
whether an employee in a nonunion position “below supervisor”
should be covered by the contract, or whether the recognition
clause is being violated. This same section of the contract also
obligates Respondent to furnish certain information to the Union
on a regular basis.5 There is no dispute that the Union has arbi-
trated disputes about unit inclusion of disputed positions before
and after the instant dispute.
Although the instant dispute may satisfy the first four criteria
for prearbitral deferral under Collyer, it does not satisfy the fifth
and final one.6 The dispute regarding Respondent’s creation of
the ACM position and promotion of the three incumbent sous
chefs into this new or reclassified position in January is not “emi-
nently well-suited for resolution by arbitration” because the con-
tract and its meaning do not lay at the center of the dispute. Thus,
there is no dispute that the unit excludes “supervisors” and that if a
new supervisory position is created by Respondent, it should be
excluded. What is in dispute is whether the sous chefs were “su-
pervisors” in January when Respondent took the actions it did and
whether, if they were not, did they become supervisors as a result
of the changes implemented at that time. Resolution of this dis-
pute does not require interpretation of any provision of the con-
tract. Rather, it requires interpretation and application of the statu-
tory definition of “supervisor.” Resolution of this dispute will
determine the composition of the unit and the representational
rights of those individuals occupying the disputed position. The
dispute here thus falls within those which the Board has histori-
cally declined to defer.
Moreover, in light of more recent case law, I conclude that the
information request allegations are not deferrable. Because these
allegations are “intimately connected” with the other allegations of
the complaint, the whole case is not deferrable. Postal Service,
302 NLRB 918 (1991). Cf. Clarkson Industries, supra at 353 fn.
21.

never defer a refusal to furnish information allegation. See, e.g., Clarkson
Industries, supra at 353.
5 Respondent also relies on these provisions and the bargaining which
preceded their inclusion in the collective-bargaining agreement for its
waiver argument, to be discussed infra.
6 Although the General Counsel and the Charging Party argue that Re-
spondent’s conduct here evidences a disregard for the arbitration process, I
find it unnecessary to resolve this question. There clearly has been a long
collective-bargaining relationship between the parties which appears to have
been productive, although the record does not contain much evidence on this
point. There is no allegation of unlawful interference with employee rights
or antiunion animus before me. Moreover, Respondent’s actions in January
were in reliance on that portion of Arbitrator Adelman’s award which I
found to be dicta. I am not prepared to find that as such, Respondent was
repudiating the award or engaging in conduct which would make future
resort to arbitration futile.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 900
D. Supervisory Status of Sous Chefs
The 11 west private unit is a 19-bed unit. It is organized in a
fashion similar to a four-star hotel or restaurant, with a “front of
the house,” consisting of the receptionist, guest service attendants,
or “GSA,” who serve as a concierge for the patients, housekeep-
ing, maintenance staff, and the kitchen, or “back of the house,”
staffed by the sous chefs and food preparers. In order to manage
this new unit, Respondent hired Hogarty from the hospitality in-
dustry, with no previous experience in a health care setting. When
Hogarty began working for Respondent, most of the job descrip-
tions and staffing decisions had already been made. She testified
that she set up the management structure, modeled after that found
in the hotels at which she had worked, with the front of the house
under the supervision of “Assistant Managers.” According to
Hogarty, Respondent had already decided to staff the kitchen with
an executive chef and food preparers. Hogarty decided, again
based on her experience working in four-star hotels, to have a sous
chef on each shift, under the executive chef, to provide more su-
pervision and ensure higher quality food production. On April 29,
1993, Respondent posted openings for, inter alia, three sous chefs
and five food preparers. Respondent’s records show that Cynthia
Narduli was initially hired as a sous chef on May 17, 1993, and
reclassified to “Culinary Manager” on June 14, 1993. She hired
the rest of the staff to open the 11 west kitchen. Narduli remained
in her position until she left for other employment in May 1996.
From its inception, the 11 west kitchen has operated from ap-
proximately 6:30 a.m. until approximately 9:30 p.m., 7 days a
week. There has always been one sous chef or ACM and one
food preparer assigned to a morning shift (generally 6:30 a.m.–
2:30 p.m.) and one sous chef or ACM and two food preparers
assigned to an evening shift (generally 1:30–9:30 p.m.). During
periods of high census, Respondent adds a third food preparer on a
10 a.m.–3 p.m. shift. Respondent’s records show that until Janu-
ary 1994, Respondent covered these shifts with two full-time sous
chefs and Narduli. In January 1994, Kathy Dawson was hired as a
part-time relief sous chef to cover days off and other leave for the
two full-time sous chefs. Respondent has generally covered the
food preparers schedules with three full-time and three part-time
employees. During the busiest part of the day, when the two shifts
overlap, and when the census is high, there would be two sous
chefs and four food preparers on duty. For most of the time, there
is one sous chef and one–two food preparers working in the
kitchen.
Hogarty testified that she developed the job description for the
sous chef position after she was hired and that she did so on short
notice. According to Hogarty, she initially developed global du-
ties, such as purchasing, discipline, and menu development, and
then used boilerplate from existing job descriptions to prepared a
position analysis questionnaire (PAQ), which is a document used
by Respondent to establish or reevaluate supervisory and manage-
rial positions. This questionnaire is used by Respondent’s wage
and compensation department to determine the salary for such
positions. The PAQ for the sous chefs is dated June 7, 1993.
According to the general summary in the PAQ:

[T]he purpose of this position is to prepare excellent quality
food for patients and their guests on 11 West. The Sous Chef
will supervise the kitchen utility staff. The Sous Chef is re-
sponsible for reviewing menus, assuring that food prepara-
tion and production conforms with State Health Department
regulations and oversees appropriate level of sanitation and
maintenance of the work area.

The Sous Chef will provide relief coverage for the Executive
Chef.

The PAQ then lists and briefly describes seven areas of responsi-
bility:7

1. Oversees all preparation of soups, sauces, meats,
poultry, fish, grill items, vegetables, and starches.
2. Reviews menus and assembles foods, supplies and
equipment for daily food preparation. Sets up and prepares
equipment for use in food preparation.
3. Tests and evaluates all new food products brought in
for possible use, both regular and for modified diets.
4. Meets with executive chef and food production super-
visors to discuss daily production and special events.
6. [sic] Assists in care and maintenance of work areas,
equipments and supplies. Reports supply shortages/low stock
levels.
7. Alerts supervisor to problems and need concerning
equipment and food supplies. Detects spoiled or unattractive
food, defective supplies/equipment or other unusual condi-
tions and reports these to supervisor.
8. Counsels and disciplines employees. Prepares job
performance appraisals and reviews the evaluation with the
employee.

The PAQ also indicates that the sous chef will be responsible for
recommending hire and termination of kitchen utility employees;
adjusting the staffing pattern and assignment of work to meet
operational needs; and contacting human resources for recruitment
of staff and dealing with labor relations to resolve employee is-
sues. However, final disposition regarding hiring and firing are
expressly beyond their scope of authority.
Narduli testified, in contrast to Hogarty, that it was she who
created the sous chef job description and determined their qualifi-
cations. According to Narduli, there was no specific job descrip-
tion for the position when she began hiring sous chefs, but that she
had in mind what their duties would be from her experience work-
ing in restaurants. This experience is what she used in interview-
ing and selecting the first sous chefs hired. Narduli claimed that
the unwritten job description was eventually reduced to writing.
At one point in her testimony, Narduli candidly testified that there
is a difference between a written job description and a working job
description. Her working job description, as testified to at the
hearing, required the sous chefs primarily to visit with patients in
order to develop menu items that they would like and that would
comport with any special diets they were on. The sous chefs
would also be expected to order the food needed to prepare these
menu items, both regular offerings and daily specials, and “super-
vise” the kitchen staff. When initially asked to explain what she
meant by “supervise,” Narduli testified that the sous chef was
responsible for determining the work flow on his or her shift,
assigning tasks to the food preparers and providing them with
recipes, instruction, and other information they would need to
complete the tasks and to ensure quality of food preparation and
presentation. In response to further leading questions, Narduli
testified that the sous chefs were responsible for assigning and
approving overtime and disciplining employees and that they
could take these actions independently. With respect to discipline,
Narduli testified that the sous chefs could give out warning notices
if something was going wrong in the kitchen. The authorization
of overtime, according to Narduli, consisted of asking a food pre-

7 There is no item numbered “5” on the PAQ in evidence.
MT. SINAI HOSPITAL 901
parer to stay late to finish cleaning chores or to work through a
break, if needed to finish preparing an item, and then initialing the
employees timecard where the overtime was recorded.
In June 1994, when the arbitration hearing opened, Ray
Przelomski was the evening sous chef and Dawson, as part-time
relief chef, worked days and evenings.8 Peter Murphy was hired
in July 1994 as the full-time day sous chef. By December 1994,
when the arbitrator issued his award, Przelomski had been re-
placed by Walter Robinson. Dawson, Murphy, and Robinson are
the sous chefs who became ACMs in January. Dawson resigned
on February 5, 1996, and was not replaced. In May 1996, Murphy
was promoted to executive chef to replace Narduli and Robinson
resigned about the same time.9 Dawson and Murphy testified at
the hearing.
Dawson testified that during the interview process for the sous
chef position, Narduli told her that she would be responsible for
supervising a small kitchen staff and interacting with patients, i.e.,
going over menus and diets with them. With respect to supervi-
sory duties, Dawson recalled being told that she would be respon-
sible for instructing staff in the production of food, quality control,
and sanitary procedures. She was expected to ensure that the food
was of the quality expected in a four-star restaurant. In response
to leading questions from Respondent’s counsel, Dawson recalled
being told she would be expected to discipline kitchen staff. She
testified that she was not given a written job description, although
she vaguely recalled seeing one. She was hired as a relief supervi-
sor, meaning she would fill in for one of the full-time sous chefs
on their days off. Although hired for 17.5 hours/week, Dawson
testified that she regularly worked more than that, averaging 4
days a week. Because she was a relief person, she worked both
shifts, although more often the p.m. shift from approximately 2–
10.
Dawson described a typical day as a sous chef. At the begin-
ning of her shift, she met for one-half to 1 hour with either the
sous chef who was on duty in the morning, or with the executive
chef to find out what needed to be done, if there were any prob-
lems she should be aware of, or any concerns or requests from
patients that she would have to deal with. She then greeted the
two food preparers who were already on duty and took inventory
to determine what menu items were in short supply and would
need to be replenished and what ingredients and supplies needed
to be ordered. She then made up the prep list for the food prepar-
ers, based on her assessment of what needed to be done. She
claimed that she used some judgment and discretion in making
these decisions because she would have to anticipate what the
patients might order and how many of a given menu item would
be needed. She also assigned specific duties to the individual food
preparers. While most of the items on the prep list were routine
tasks that any food preparer could do with minimal instruction and
supervision, Dawson testified that there were items which not all
food preparers could do well and she exercised some discretion in
assigning these tasks and would have to provide instruction to
food preparers who were unfamiliar with how to prepare an item.
Near the beginning of her shift, she would also have to meet with
patients, at least one patient every day, to go over concerns or

8 Based on Respondent’s records which are in evidence, it appears there
was no third sous chef between the April 5, 1994 termination of Edward
Penn and Murphy’s hiring on July 19, 1994. Based on testimony from
Dawson and Narduli, it appears the morning shift was being covered by
Narduli and Dawson during this time.
9 Murphy and Robinson were replaced by Simone Shaw and David Vic-
toriano, respectively.
requests for special items. Once these preliminary duties were out
of the way, Dawson spent most of the remainder of her shift in
actual preparation of menu items, including creating the nightly
special. She would have to go over the special with the guest
service attendants, including having them sample it, so they would
be able to describe it to the patients, i.e., what was in it, how it was
prepared, etc. If things were slow, Dawson might also spend
some time working on new menu items, trying out recipes and
creating samples. At the end of her shift, Dawson would place the
order for food supplies by calling the approved vendor and leaving
the order on an answering machine. She would also review the
prep list to determine if any items were not finished and would
have to be carried over to the next shift and would write a note in
the diary for the next day’s chef, or communicate orally with the
p.m. chef if she had worked the a.m. shift. Dawson testified that
she spent at least 50 percent of her shift in actual cooking and
preparation of food.
Murphy testified that he applied for the position of sous chef in
June 1994. During his interview with Narduli, she told Murphy
that he would be working mostly on the day shift; that he would
be required to open up the kitchen, prepare breakfast and lunch,
and would have some requisitional duties. She also told him he
would be working with one food preparer whom he would super-
vise. Murphy testified that Narduli further informed him that he
would be responsible for everything that happened in the kitchen
on his shift. Specifically, he would be responsible for delegating
duties to the food preparer to make sure the food required was
produced. He would have to assess what needed to be done and
assign tasks not only to the food preparer on the a.m. shift but also
to the two food preparers coming in on the night shift. Murphy
further testified that, when he had his second interview with
Hogarty, she emphasized to him the management aspects of the
position, telling him that the previous sous chefs were terminated
because of their lack of supervisory skills. Murphy testified he
had prior experience as a sous chef, overseeing the work of five
employees working at different stations, making sure the work got
done. He testified he had disciplinary authority in his previous
employment.
After being hired as an a.m. sous chef, Murphy started work at
6:30 a.m. and would stay until lunch orders were finished and
everything was in place for the p.m. shift, sometimes working
until 5 p.m. Narduli, the executive chef, was also on duty during
his shift. According to Murphy, he met with her a few times dur-
ing the day to discuss what things needed to be done, e.g., any
ordering that needed to be done or special cleaning projects to
assign. According to Murphy, Narduli did not spend much time in
the kitchen, but she would occasionally come in, assess how
things were going, exchange small talk with the food preparer and
walk out. Narduli did not do any cooking while Murphy was in
the kitchen.
Murphy testified that when he worked as an a.m. sous chef, he
would get the keys from the receptionist when he arrived for work
at 6:30 a.m. and would open the kitchen, turn on the ovens, and set
up his workstation. He would then start making muffins and oat-
meal. He also made up the prep list for the 1 a.m. food preparer.
At the end of his shift, he would speak to the p.m. sous chef com-
ing on duty and tell him/her what still needed to be done from the
morning prep list.
The record contains no evidence that sous chefs hired, trans-
ferred, laid off, recalled, promoted, discharged, or rewarded any
employee prior to January 1995. Although the June 1993 PAQ
provides that sous chefs will be responsible for recommending
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 902
hire and termination of kitchen utility staff, and will have contact
with the human resources department for staff recruitment, Re-
spondent’s witnesses acknowledged that they had no involvement
in hiring and firing before January 1995.10 Similarly, although the
PAQ states that sous chefs will evaluate employees, they did not
do so before January 1995. Those performance appraisals which
were completed in 1994 were done by Narduli and there is no
evidence that any sous chef was consulted or had input into these
evaluations. The record does contain evidence that the sous chefs
issued disciplinary notices to employees, initialed their timecards
when they worked overtime or did not get a break and assigned
and directed the work of other employees. Each of these indicia
of statutory supervisory authority for which evidence is present in
the record must be reviewed carefully to determine the extent to
which the exercise of such authority by the sous chefs was “not of
a merely routine or clerical nature, but require[d] the use of inde-
pendent judgment.” I also note, in considering the evidence, that
the burden of proof is on Respondent here as the party asserting
supervisory status. See, e.g., Children’s Farm Home, 324 NLRB
61 (1997); and Hydro-Conduit Corp., 254 NLRB 433 (1981).
Respondent’s witnesses testified that an employee could not be
paid overtime unless a supervisor approved the overtime. Based
on the testimony of Narduli, Dawson, and Murphy, this apparently
consisted of asking or instructing the employee to stay late or
work through break and then initialing the timecard. The need to
work such overtime was dictated by workflow, e.g., dishes came
back late from patient’s rooms and someone had to stay to finish
cleanup, or an employee was in the middle of a recipe when it was
time for their scheduled break. Dawson testified that an employee
could refuse to work through a break. Respondent’s human re-
sources policies regarding hours of work and overtime do not
specifically require a supervisor to approve overtime, but they do
specify that “the department head or designee” is responsible for
completing the summary of hours on the top of the timecard and
signing the timecard on the “approved by” line. There is no dis-
pute that the sous chefs did not calculate the hours nor sign the
timecard on the “approved by” line. This was done by the front of
the house assistant managers who are undisputed supervisors. The
policies also require that the department head or designee initial
the handwritten time when an employee fails to punch in or out.
There are no instances on the timecards in evidence where a sous
chef did this. Those instances where a time has been written are
initialed by assistant managers. The timecards and payroll records
which are in evidence, offered by Respondent and the General
Counsel, do not support the testimony of Respondent’s witnesses.
There are many instances where payroll records show an em-
ployee received overtime pay without any sous chef’s initials on
the relevant timecard. Based on the record evidence, I must dis-
credit the testimony of Respondent’s witnesses to the extent they
claim that employees could not receive overtime pay unless a sous
chef approved and initialed the overtime. Moreover, any exercise

10 Although Narduli testified at one point that the sous chefs “actually ap-
proved and hired the food preparers,” this was contradicted by Respondent’s
other witnesses and personnel records. Similarly, Murphy’s testimony that
he made recommendations to the assistant managers regarding the perform-
ance of new GSAs who were hired during the time he was a sous chef, and
participated in the decision whether they passed probation, is contradicted
by his pretrial affidavit. Moreover, although Respondent produced a multi-
tude of documents to establish supervisory status, no documentary evidence
to corroborate any involvement of sous chefs in hiring or evaluating new
GSAs was offered. Accordingly, I discredit Narduli’s and Murphy’s testi-
mony in this regard.
of authority involved in asking or instructing an employee to work
overtime hours based on workflow demands is routine and the
initialing of timecards merely a clerical function.11
There is no question that the sous chefs assigned work to the
food preparers by giving them a prep list with items checked for
them to do each day. However, despite Dawson’s and Murphy’s
testimony to the contrary, the exercise of this authority did not
require the type of independent judgment which has been found
by the Board or the courts as necessary to convert a leadman or
straw boss to a statutory supervisor. Telemundo of Puerto Rico v.
NLRB, 113 F.3d 270, (1st Cir. 1997). See also Children’s Farm
Home, supra, and Hydro Conduit Corp., supra, and cases cited
there. Thus, the food preparers in the 11 west kitchen performed
routine tasks, e.g., retrieving supplies from the refrigerators or
pantry, chopping vegetables, making soups, baking, preparing
sauces, washing dishes, mopping floors and cleaning equipment,
and otherwise assisting the chef, which did not vary greatly from
day to day. With minimal training, any food preparer was ex-
pected to be able to perform any task. Food preparers Yvonne
Pickett and Molinas Sheeko testified credibly that they themselves
would sometimes divide up assignments, particularly cleanup
chores. The sous chefs also had some responsibility for the pro-
duction and quality of food prepared in the 11 west kitchen on
their respective shifts. In this regard, I do not doubt that the sous
chefs gave instruction to the food preparers, checked their produc-
tion and, as Narduli characterized it, directed the workflow. This
direction of other employees by the sous chefs stems from their
superior training, skills and experience as chefs, and is incidental
to carrying out their tasks as the lead cook, rather than their role as
agents of the Employer. Ultimate responsibility for the operation
of the kitchen on 11 west resided with Narduli, the executive chef,
who was accessible to the sous chefs at all times, even when not
physically present on the unit. Accordingly, the record does not
establish that the sous chefs had the authority to “responsibly
direct” other employees, as interpreted by the Board. Providence
Hospital, 320 NLRB 717, 725–730 (1996), affd. sub nom. Provi-
dence Alaska Medical Center v. NLRB, 121 F.3d 548 (9th Cir.
1997), and cases cited therein.
Respondent has a progressive disciplinary policy providing for
counseling and verbal reprimand before issuance of a written
warning, unless the employee’s first offense is considered serious
enough to warrant a written warning or immediate dismissal.
Under Respondent’s policy, an employee’s “immediate supervi-
sor” has the initial responsibility for taking “corrective action” for
infractions of Respondent’s written rules of conduct, but is “en-
couraged to consult the Employee/Labor Relations Manager”
before suspending or discharging an employee. Respondent util-
izes a form to document disciplinary actions beginning with the
written warning stage. Testimony and documentary evidence in
the record show that verbal warnings or counseling are docu-
mented by a memorandum or “documented conference.” The
form “warning notice” has a space to identify the “immediate
supervisor” and signature lines for the “supervisor” who issues the
notice, the employee, a witness in the event the employee refuses
to sign, and for a “supervisor” to sign in the event the employee
refuses to accept a copy of the warning. With respect to bargain-
11 Murphy testified that he scheduled employees and authorized time off
for employees during the time he was a sous chef. He acknowledged that he
only did this when providing relief coverage for the executive chef. This
testimony is contradicted by his pretrial affidavit in which he denied sched-
uling employees, authorizing vacation, and time off while a sous chef.
Accordingly, I discredit this testimony.
MT. SINAI HOSPITAL 903
ing unit employees, Respondent’s policy provides that the super-
visor read the warning notice to the employee in the presence of a
union delegate and call in another supervisor to sign as a witness if
the employee refuses to sign the notice.
Disciplinary records in evidence for the period prior to Arbitra-
tor Adelman’s December 1994 award show four warning notices
identifying a sous chef as the immediate supervisor who issued the
warning and one memorandum documenting a verbal warning
signed by a sous chef. There are a total of 16 instances of disci-
plinary actions during this period in evidence.
Although the 11 west unit opened about June 1993, there is no
evidence of any sous chef participating in disciplinary actions
until November 23, 1993. Ray Przelomski, the p.m. sous chef,
signed two warning notices that date as a witness that the em-
ployee, Eric Mercado, refused to sign the warnings. Narduli is
identified on this and all other warnings issued to Mercado as the
immediate supervisor. Moreover, it was Narduli who ultimately
discharged Mercado on January 28, 1994, for closing the kitchen
without finishing cleanup duties, after she had given him several
warnings and two suspensions, primarily for attendance prob-
lems.12 Mercado was a food preparer assigned to the p.m. shift, the
same shift Przelomski was assigned as sous chef. Narduli testified
that she prepared the warning notices for Mercado, even though
Przelomski was his putative supervisor, because Przelomski had
only been employed by Respondent since September 1993 and
was a new person. I do not find this explanation credible because
it is inconsistent with her testimony and that of Hogarty that in
order to be hired as a sous chef, applicants had to have manage-
ment and supervisory experience. With such experience, a sous
chef would be expected to know how to discipline an employee in
much less than 2 months time.
Narduli testified with respect to the warnings witnessed by
Przelomski that she was the one who discovered the particular
infraction, i.e., calling in 15 minutes after the start of his shift to
say he would be late and punching out without cleaning the
kitchen, and decided to discipline Mercado. She testified that she
did not recall discussing the warnings with Przelomski before
giving them to Mercado. Przelomski’s mere presence as a witness
to issuance of discipline does not reveal the exercise of any inde-
pendent disciplinary authority. The fact that Respondent’s inter-
nal policies may refer to such witnesses as supervisors does not
translate what amounts to a ministerial or clerical function into
statutory authority. This is also true of those other instances relied
on by Respondent where a sous chef or ACM merely signed a
warning notice as a witness that the discipline was given.
The first warning notice signed by a sous chef as the “supervi-
sor” is dated March 18, 1994. This was a first warning issued to
Molinas Sheeko, another food preparer on the p.m. shift, after the
opening kitchen staff found dishes Sheeko washed the night be-
fore were so filthy that they were unusable. Przelomski had been
the sous chef on duty during Sheeko’s p.m. shift, but it was Nar-
duli who discovered the infraction the next morning. Narduli
testified that she called Przelomski into her office when he arrived
for work and told him that he had to do something about this.
Narduli prepared the warning. Her name is crossed out and
Przelomski’s name is handwritten in the “immediate supervisor”
box. Przelomski signed the warning notice as the supervisor.
Sheeko testified that it was Narduli who first talked to him about
the dishes and that Przelomski merely read the warning notice to

12 Mercado’s discharge was converted to a resignation as a result of a
grievance filed by the Union.
him. Przelomski did not testify. The facts regarding this instance
of discipline, as related by Narduli herself, establish that it was
Narduli who made the decision to discipline Sheeko without any
recommendation from Przelomski. Przelomski’s signature on the
warning notice and his act of reading it to Sheeko are ministerial
and clerical functions and do not establish the existence of inde-
pendent disciplinary authority.
Dawson issued two warnings during the time she was a sous
chef, both to Sheeko. She gave Sheeko a “second warning” on
April 18, 1994, for failing to follow her instructions to keep up
with the dirty dishes.13 The infraction had occurred on April 13,
1994, and Dawson admitted that she discussed it with Narduli
before preparing the warning. She also discussed with Julie, one
of the assistant managers in the front end, and an undisputed su-
pervisor, how to prepare a warning using Respondent’s human
resource policies and form. Dawson testified that she made the
decision independently and merely informed Narduli that she was
going to discipline Sheeko. When she called Sheeko into the
office, she read him the warning and had the union delegate and
Robin Fertig, another assistant manager present to witness it. I do
not credit Dawson’s testimony, which was elicited by leading
questions from Respondent’s counsel that she acted independently
in issuing this warning. I note that she admitted discussing the
incident with Narduli before preparing the warning and that 5 days
elapsed between the infraction and the disciplinary action. If
Dawson truly had independent authority to discipline Sheeko for
this incident, she would have given him the warning that night,
without consulting anyone.
On June 10, 1994, Dawson gave Sheeko a “final warning” for
wasting spinach on June 6. Again, in response to leading ques-
tions, Dawson testified that she acted independently, without seek-
ing permission from anyone. Although the warning notice indi-
cates that Dawson found usable spinach in the garbage a “short
while” after instructing Sheeko to clean the spinach, the warning
was issued 4 days later. Sheeko testified that it was Narduli who
showed him and union delegate Yvonne Pickett a pan of spinach
allegedly found in the garbage and called them into the office.
Dawson merely read the warning notice to him. Sheeko, as a
current employee testifying adversely to his employer, is inher-
ently credible. Georgia Rug Mill, 131 NLRB 1304, 1305 fn. 2
(1961), enfd. as modified 308 F.2d 89 (5th Cir. 1962). Because of
the lapse in time between Dawson’s alleged discovery of the in-
fraction and the issuance of a disciplinary notice, as well as her
general failure to recall many events from the time she worked as
a sous chef, I discredit her denial that she sought authorization
from Narduli before issuing this warning.
Murphy also issued two warnings during the time he was a sous
chef, both to food preparer Alromeo Campbell. The first, on Oc-
tober 23, 1994, was a verbal warning for lateness. The language
in the memorandum documenting this verbal warning is identical
to that appearing in documented conferences for attendance in-
fractions issued by Assistant Manager Nidetz on June 13, 1994,
and by Dawson, as an ACM, in March 1995. Murphy testified that
he recognized that Campbell had a problem getting to work on
time and began monitoring his tardiness. After a certain number
of occurrences, according to Murphy, he decided to verbally warn
Campbell.14 In response to leading questions, Murphy denied that
13 Sheeko’s “first warning” is the one discussed above which was issued
under Przelomski’s signature.
14 The record reflects that Campbell had already had a documented con-
ference for excessive lateness with Assistant Manager Nidetz, an undisputed
supervisor, on June 13, 1994.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 904
he asked for, or needed, permission to give this warning. Accord-
ing to Narduli, under Respondent’s lateness policy, an employee
is given a grace period of 3 or 4 minutes before they are consid-
ered late and a certain number of occurrences before disciplinary
action “must be taken.” This is consistent with testimony from
Dawson that she was expected to review timecards monthly for
lateness and absenteeism and that it was “standard practice” to
write someone up if there were too many occurrences. Accord-
ingly, I discredit Murphy to the extent he claims to have exercised
any independent authority in verbally warning Campbell. Murphy
has already been found to have exaggerated his authority in other
respects. Based on the testimony of Narduli and Dawson, I find
that this instance of discipline was pursuant to guidelines which
did not leave any discretion with respect to discipline for atten-
dance problems and amounts to a ministerial act.
On November 28, 1994, Campbell received a final warning
with a 3-day suspension for loafing or sleeping on duty and ab-
sence from post. Although Murphy is identified as the “immedi-
ate supervisor” on the warning notice, Hogarty signed the warning
notice and Murphy signed as a witness that Campbell refused to
accept a copy of the warning. Murphy testified that, on November
28, 1994, when he did not see Campbell at work after the start of
his shift, he investigated and found that Campbell had already
punched in and went looking for Campbell. Murphy testified that
he ran into Campbell coming out of the breakroom and Campbell
said he had fallen asleep. According to Murphy, he decided to
give Campbell a written warning for this without consulting with
anyone. He gave the warning to Campbell in the chef’s office in
the presence of Grishel Brown, a GSA. He denied that any man-
agement representative was present. When Campbell refused to
sign the warning, Murphy asked Brown to sign as a witness and
Murphy himself signed on the line for a supervisory witness.
Later that day, according to Murphy, he brought the warning to
Hogarty for her to sign. Hogarty signed on the line for the super-
visor who issues the warning. Murphy explained that he brought
the warning to Hogarty to sign because it was hospital policy that
the next level supervisor sign warnings. Hogarty did not testify
regarding this warning or how her signature came to be on it. I
discredit Murphy’s testimony that he made the decision to sus-
pend Campbell without consulting with anyone. As noted above,
Murphy demonstrated a tendency to exaggerate his authority
throughout his testimony. His explanation for Hogarty’s signature
appearing on the supervisor’s line makes no sense. Accordingly, I
find, as is evident from the face of the document, that Hogarty
suspended Campbell and that Murphy acted as a witness. Al-
though Murphy may have reported the incident to Hogarty, in the
absence of her testimony, I am unable to conclude that Murphy
had any further input in the decision to suspend Campbell.
Based on the above, I conclude that the four instances of disci-
pline ostensibly issued by the sous chefs, do not evidence the kind
of independent authority which would convert a leadman or straw
boss to a statutory supervisor. Respondent also offered evidence
regarding secondary indicia of supervisory authority. However,
the Board has held that it is unnecessary to consider such evidence
in the absence of statutory indicia of supervisory authority. Boze-
man Deaconess Hospital, 322 NLRB 1107 fn. 2 (1997). In
agreement with the arbitrator, I conclude that the sous chefs were
not statutory supervisors.
In the absence of evidence that they fit any of the other exclu-
sions specified in the recognition clause of the parties’ collective-
bargaining agreement, I conclude further that the sous chefs were
properly included in the unit at the time Respondent took the ac-
tions which are the subject of the complaint.15 I note that the unit
covered by the collective-bargaining agreement already includes
the position of first cook, with a rate of pay, as of October 1994,
similar to that received by the sous chefs before there promotion
to ACM.
E. Respondent’s Response to the Arbitration Award
Hogarty and Courounis, Respondent’s director of labor rela-
tions at the time, testified that, after reviewing Arbitrator Adel-
man’s award, they met first with Respondent’s legal department
and then with each other to determine how Respondent was going
to comply. Courounis testified that he and Hogarty decided that
Respondent still needed supervision in the 11 west kitchen during
times when Narduli was absent. Courounis testified further that
they believed Adelman’s award provided a basis for creating a
supervisory position to address this need. Hogarty testified that
the arbitrator “directed” Respondent to put only the a.m. sous chef
in the bargaining unit because there was a redundancy of supervi-
sion during those hours when both the sous chef and Narduli were
on duty. Both agree that Respondent decided to put only one sous
chef in the bargaining unit while maintaining three supervisory
positions and to promote the current sous chefs into these supervi-
sory positions. Apparently no consideration was given to simply
putting the three sous chefs in the unit, as the arbitrator awarded,
and then creating a position to address whatever need for addi-
tional supervision Respondent may have had.
Hogarty testified that she created a union sous chef position by
taking the old job description contained in the PAQ and stripping
it of any authority that might be considered supervisory. Hogarty
then prepared separate PAQs for each of the sous chefs to “re-
evaluate an existing position” under Respondent’s human resource
policies.16 Respondent’s human resource policies define a reclas-
sification as a change of job titles and indicate that this would be
appropriate whenever it becomes clear that the employee is not
performing the work implied by his or her job title and described
in the job description or PAQ. The written policies further pro-
vide that a nonunit employee is to be reevaluated and assigned to a
different pay grade whenever it becomes evident that the pay
grade initially assigned to the job was incorrect or the employee’s
duties and responsibilities have changed to such an extent that the
job has increased or decreased enough in overall worth to warrant
a change in grade. A separate policy describes the procedure for
adding a new position to a department’s table of organization and
indicates there are three situations where that would be appropri-
ate: work volume has materially and permanently increased due to
additional functions assumed by the department; work volume has
temporarily or seasonally increased or the department has under-

15 Although Respondent argued in the arbitration proceeding that sous
chefs were also excluded from the unit as professional employees within the
meaning of Sec. 2(12) of the Act, it has not raised that contention here. In
any event, as Arbitrator Adelman pointed out in his decision, the recognition
clause of the collective-bargaining agreement does not specifically exclude
professional employees.
16 Narduli testified, in contrast, that she was the one responsible for creat-
ing a new job description for the sous chef, removing anything supervisory
in nature, and a new PAQ for the ACM position by assigning specific addi-
tional duties to each of the current sous chefs. On cross examination, Nar-
duli contradicted herself by testifying that it was someone in labor relations
who created the unit sous chef position and that she had nothing to do with
this. She testified that she “created” the “working job description” for the
unit sous chef after the position was filled by defining the tasks for which
the incumbent of this position would be responsible in order to make the
kitchen run efficiently.
MT. SINAI HOSPITAL 905
taken a special project or temporarily assumed additional func-
tions; or an additional employee is required during a vacation
period.
Both Hogarty and Narduli testified that each of the sous chefs
was given specific additional responsibilities to justify the re-
evaluation/reclassification. Murphy, the a.m. sous chef, was given
responsibility for scheduling the food preparers and approving
requests for time off; Robinson, the p.m. sous chef, was given
responsibility for recruiting and hiring staff on his shift and doing
evaluations; and Dawson, the relief chef, was given additional
requisition duties. The PAQs signed by Hogarty which Respon-
dent put in evidence do not support this testimony. On the con-
trary, they are identical and contain no reference to the specific
duties described by Hogarty and Narduli. The revised PAQ does
enhance and describe in greater detail the authority of ACMs to
hire, discipline, and evaluate employees and otherwise exercise
2(11) authority. Nevertheless, Hogarty conceded and the PAQs
confirm that the ACMs would continue to spend the majority of
their time performing the same food preparation duties they had
performed as sous chefs.
Hogarty submitted the new PAQs for Dawson, Murphy, and
Robinson, which sought to rename the sous chefs as ACMs with a
salary upgrade, along with a “Personnel Requisition” form for the
unit sous chef to human resources on or about January 10, 1995.
The personnel requisition indicates that the sous chef position was
being reclassified due to the outcome of an arbitration and indi-
cates the hiring salary as $14.85/hour for 37.5 hours/week. Daw-
son, Robinson, and Murphy were reclassified and Robinson and
Murphy were given promotional increases effective January 16.
Dawson, who was already paid at the rate of $20/hour, substan-
tially more than the other sous chefs, received no increase. Mur-
phy’s hours were reduced from fulltime to 17.5 hours/week at the
same time. The personnel action forms to accomplish these
changes were typed January 10. The unit sous chef position was
not posted until February 17. Oscar Cardona was the only em-
ployee to bid and he was given the job on March 20.
Respondent’s witnesses disagree regarding when and how these
changes were announced to the staff. Hogarty testified that, 1 or 2
days after the January 19 meeting with the Union, she held a
“regular quarterly meeting” with the entire staff of 11 west, in-
cluding front of the house employees, and that she told the staff
that a unit sous chef position would be posted and that the current
sous chefs had been promoted to ACMs. No one corroborated
Hogarty regarding such a meeting. Narduli testified that she at-
tended a meeting with Hogarty and the sous chefs only, sometime
after the arbitration award, at which Hogarty explained the out-
come of the arbitration and told the sous chefs there would be a
unit sous chef but that they would become ACMs. Dawson,
whose recollection of events surrounding her change in title was
almost nonexistent, did recall a meeting similar to the one de-
scribed by Narduli. Murphy testified at first that he was informed
individually by Narduli that he was getting a promotion because
of his performance. Although he also recalled, with further ques-
tioning, a meeting similar to that described by Narduli, he did not
recall any staff meeting resembling that described by Hogarty. In
any event, Respondent did not announce by memo these putative
changes in culinary management, as it did in April 1996 when
Murphy replaced Narduli as executive chef.
The evidence in the record shows that, after January 16, 1995,
the ACMs did exercise ostensibly more statutory supervisory
authority. This is particularly true with respect to Murphy. Thus,
Murphy testified without dispute that he independently hired three
new food preparers, recruiting them from sources he identified,
narrowing down applicants and interviewing those he believed
were best qualified, and then selecting the individual to whom an
offer of employment was made. Although Respondent’s person-
nel policies provide that only the human resources department can
extend a job offer, there is nothing in the record to indicate that
Murphy’s recommendation regarding the hiring of these three
employees was not followed without additional review. More-
over, Murphy testified that he trained these new employees, as
well as the unit sous chef, Cardona, and recommended whether
they should pass probation. There is no evidence in the record
that anyone else in the supervisory hierarchy independently re-
viewed Murphy’s recommendations. Murphy also performed
scheduling functions, although these appear to be more routine
and clerical in nature since almost all employees in the kitchen
had specific schedules and shifts, and vacation and other time off
was governed by the collective-bargaining agreement.
Both Murphy and Robinson prepared employee evaluations af-
ter they became ACMs, but the record is silent regarding what
effect, if any, these evaluations had on the employees’ terms and
conditions of employment. Wage increases were governed by the
collective-bargaining agreement and there is no evidence that
Respondent uses the evaluations for any other purpose affecting
unit employees’ wages or tenure. See Children’s Farm Home,
supra. Moreover, under Respondent’s human resources policy
and in practice, Narduli reviewed and approved these evaluations
before they became final.
The record also contains evidence of additional disciplinary no-
tices issued to unit employees which were signed by the ACMs
during calendar year 1995. Dawson signed four, including a sus-
pension of Sheeko in March 1995, and Robinson signed two,
including a discharge notice for Campbell in October 1995. With
respect to Campbell’s discharge, the testimony of Narduli estab-
lishes that she made the determination to discharge the employee
and instructed Robinson to carry it out. Most of the discipline
after January 1995 was for attendance violations.
Respondent’s records show that Respondent made other
changes affecting the 11 west unit around the same time it “re-
evaluated” the sous chef position. On January 9, Hogarty was
promoted to associate director of support services and Narduli
received a promotional increase in excess of 5 percent, without a
change in title. Hogarty testified that, in her new position, her
responsibilities were expanded beyond 11 west and her office was
moved to another building. No one replaced her as manager of 11
west. Instead, according to Hogarty, the assistant managers were
made responsible for the front of the house and the sous
chefs/ACMs for the kitchen. Hogarty further testified that, at the
same time, Narduli was given additional responsibilities in the
catering department as Respondent sought to reduce its expenses
by doing in-house catering rather than hiring outside vendors.
Hogarty testified that the latter change had been under considera-
tion since approximately late December, after Hogarty had re-
ceived from Respondent’s finance department a percentage figure
by which she had to reduce her budget for 1995. Narduli’s addi-
tional catering responsibilities were expected to take her away
from 11 west more often. According to Hogarty, this was part of
the reason for upgrading the sous chefs to ACMs and giving them
additional supervisory responsibilities. However, Hogarty testi-
fied that catering production did not move to a kitchen in another
building until the summer 1995. Hogarty further testified that
Narduli spent approximately 40 percent of her time on catering.
In contrast, Narduli testified that she was doing catering for only
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 906
8–10 months before she resigned employment in May 1996 and
that the amount of time she spent on catering increased over a
period of time to an average of 20 hours/month. Respondent of-
fered no records to document the budgetary decisions which
Hogarty testified about, nor did they offer any documentation to
show the additional duties and responsibilities given to Narduli in
January. I find, based on Narduli’s more credible testimony in
this regard, that her additional catering responsibilities did not
affect her presence on 11 west until July at the earliest, 6 months
after the reclassification of the sous chefs.
I find further that the promotion of Hogarty and the assignment
of additional catering responsibilities to Narduli was not the moti-
vating cause of the reclassification/reevaluation of the sous chefs
to ACMs. All of Respondent’s witnesses became evasive and
claimed to have problems recalling conversations and discussions
regarding the arbitration decision and its impact on the sous chef
position. This evasiveness, when contrasted with the directness of
their responses when questioned by Respondent’s counsel, con-
vinces me that Respondent’s witnesses were attempting to conceal
the true motivation behind the reclassification of sous chefs, i.e.,
to keep this position out of the unit. It is clear from the testimony
of Courounis and Hogarty that it was Adelman’s award that set in
motion the changes affecting the sous chefs. Any decision to do
more in-house catering made around this time may have been
facilitated by Respondent’s decision to give more supervisory
duties to the sous chefs, but it was not the reason for doing so.
Moreover, Narduli’s testimony establishes that the amount of time
she was required to spend on catering responsibilities was not so
significant as Hogarty claimed and did not increase until much
later than January.
I further find, based on the overwhelming weight of the evi-
dence, that Respondent made a decision in late December 1994 or
early January to “re-classify” the sous chefs in order to keep them
out of the bargaining unit, notwithstanding the arbitrator’s award,
and that Respondent effectuated that decision by changing the
employees’ job titles, giving them a salary increase and modifying
their job descriptions to make it appear they had additional re-
sponsibilities sufficient to justify the reclassification. Respondent
accomplished these changes no later than January 10 when the
personnel action forms implementing the changes were typed. As
previously noted, Respondent’s witnesses conceded that the Un-
ion was not informed of these changes until the January 19 meet-
ing.
F. Respondent’s Contact with the Union and the Union’s Request
for Information
While Hogarty, Courounis, and Narduli were busy discussing
and implementing these changes to the sous chef position, Union
Representative Estela Vazquez called Courounis to request a
meeting to negotiate the wage rate for the sous chef, as directed by
the arbitrator. Courounis agreed to meet on January 19. Cour-
ounis admitted that he said nothing to Vazquez during this call
about the changes Respondent was considering. Courounis testi-
fied that, in the same call, Vazquez asked him for the names, dates
of hire, wage rates, and job descriptions for the sous chefs.
Vazquez denied requesting this, or any other information, before
the January 19 meeting.
Courounis testified that he instructed Hogarty to gather this in-
formation in preparation for the meeting. Hogarty testified that
Courounis called her a few days before the January 19 meeting
and asked her to gather this information in preparation for a
meeting with the Union to negotiate the sous chef’s wage rate
and that she prepared a memo to Courounis setting forth the
names, dates of hire, wage rates, and hours of work for the indi-
viduals working as sous chefs at the time of Adelman’s award.
She testified that she brought this memo and the job description
she had prepared in 1993 to the January 19 meeting. The “job
description” offered into evidence by Respondent as the one
Respondent was prepared to give to the Union at the meeting is,
in fact, only a portion of the PAQ Hogarty prepared in 1993 and
is entitled “ADA 1990 Essential Job Functions Summary.” Ken
Kruger, Respondent’s vice president of human resources and
labor relations testified that this is not a job description, but a
document used by human resources in hiring employees under
the Americans with Disabilities Act.
The January 19 meeting was attended by Vazquez and union
delegates Pickett and Owen Hoarsley for the Union and Cour-
ounis, Hogarty, and Narduli for Respondent. Courounis testified
that he had the memo from Hogarty and the “job description”
described above which Courounis planned to give to Vazquez.
According to Courounis, he began the meeting by going over the
information he had. He told Vazquez that the job description for
the sous chef was the same except for the supervisory functions
which had been removed. He then told Vazquez what the rate of
pay had been for the nonunit sous chefs, i.e., $28,000/year or
$536/week and he read the information from Hogarty’s memo.
Courounis testified that Vazquez said nothing upon receiving this
information. Although he acknowledged that a purpose of this
meeting was to negotiate the wage rate for the unit sous chef
position, Courounis could not recall whether he proposed a wage
rate at this meeting until he had reviewed his notes of that meet-
ing. Having refreshed his recollection with the notes, he testified
that he proposed the $536/week as the rate for the unit sous chef
position. Vazquez did not respond to this proposal. Courounis
then told Vazquez that Respondent was creating an assistant
culinary manager position, that the current sous chefs had been
put into that position and that Respondent was prepared to nego-
tiate for one unit sous chef position. He told the Union that Re-
spondent decided it needed supervision for the unit particularly
when Narduli was not there and that Respondent relied on the
arbitrator’s decision for guidance. At that point, Vazquez called
for a caucus. Courounis acknowledged that she seemed surprised
by his announcement. After about 10 minutes, Vazquez came
back into the room and, without sitting down, said, “[W]e need
more information. You’re not bargaining in good faith. We’re
going to take this back to the arbitrator to determine the rate. This
meeting is over.” According to Courounis, he responded,
“[O]kay” and Vazquez left. Courounis testified that Vazquez did
not identify what additional information she needed and he did
not ask. Courounis testified he interpreted her statement, based
on his experience dealing with the union, as indicating that the
union was going to investigate the matter on its own.17 He spe-
cifically denied that she requested the ACM job description.
Courounis testified that, although he saw Vazquez almost daily
thereafter, she never requested any specific information regarding
the sous chefs or ACM, nor did she reduce her request for “more

17 Courounis contemporaneous notes of the meeting, which he admitted
would be more accurate than his present recollection, reflect that Vazquez
said “we still need information.” Courounis testified that he interprets this
statement the same way, i.e., that the union needed to do its own investiga-
tion.
MT. SINAI HOSPITAL 907
information” to writing. Courounis left Respondent’s employ in
February 1995, about 1 month after this meeting.18
As noted above, Vazquez denied requesting any information
from Courounis before the meeting. She also denied receiving
information at the meeting. According to Vazquez, Courounis
opened the meeting by telling the Union that the people who had
been called sous chefs had been promoted to ACMs and that Re-
spondent was going to post one vacancy for a sous chef in the unit
at $536/week.19 Vazquez testified that she asked Courounis: “If
all these people are going to be ACMs, who are they going to
supervise since [Respondent] was only going to have one sous
chef?” She also asked how Respondent was going to have three
people who were sous chefs doing something else, and who was
going to do the work the sous chefs used to do if there was going
to be only one sous chef? Courounis did not answer. Vazquez
testified that she then asked Courounis for the sous chefs’ salary—
what they had been receiving and what they were going to get as
ACMs—and for a job description for the ACM position. Cour-
ounis responded: “fine.” Vazquez testified that she never received
this information, even though she followed up her request some-
time after the meeting. She admitted that she never reduced her
request to writing. On cross-examination, Respondent elicited the
fact that the unfair labor practice charge, as originally filed within
a month of this meeting, did not allege a refusal to furnish infor-
mation and that Vazquez did not mention in her pretrial affidavit
about following up her request after the meeting.20
I find that neither Courounis nor Vazquez are totally credible
regarding this meeting and that the “corroborating” witnesses,
Hogarty and Narduli, do not corroborate Courounis’ denial that
Vazquez requested information at the meeting. Their failure to
recall whether Vazquez requested information is not conclusive.
On one hand, Courounis’ testimony that Vazquez requested the
name, date of hire, wage rate, and job description of the sous chefs
before the meeting and that he had this information at the meeting
and read the wage data to the Union is credible. It makes sense
that the Union would request such information in advance of a
meeting at which the Union expected to negotiate the sous chefs’
terms and conditions of employment, as directed by the arbitrator.
There would be no other reason for Respondent to have compiled
this information before the meeting. Moreover, Courounis’ con-
temporaneous notes of the meeting corroborate his testimony that
he read the information in Hogarty’s memo to the Union before
announcing the changes Respondent had already implemented.
However, Courounis’ denial that Vazquez asked for any addi-
tional information at the meeting is not credible. Courounis’ tes-
timony here was contradicted by those same notes of the meeting,
which clearly show that Vazquez said “[W]e still need informa-

18 Hogarty’s recollection of this meeting is similar to that of Courounis,
except that she did not recall Vazquez saying anything about information at
the meeting. This testimony is contradicted by Courounis’ contemporane-
ous notes of the meeting. Although Narduli testified that she was present at
the meeting, she had very little recollection regarding what happened there.
19 Vazquez testified that she was under the belief that the sous chefs were
being paid $700/week and she may have proposed this rate for the unit sous
chef. The information Courounis claimed to have given Vazquez at this
meeting in fact reveals that only Murphy was paid an amount equivalent to
Respondent’s proposal to the Union and that Dawson and Robinson re-
ceived more. Respondent’s personnel records, in contrast, reveal that Mur-
phy’s salary was in fact $575/week, not $536 and that no sous chef hired by
Respondent to that date had started at $536/week.
20 Pickett testified briefly regarding this meeting. She did not testifying to
any request for information made by Vazquez at the meeting nor any ex-
change of information by Respondent.
tion.” Courounis conceded that the notes are a more accurate
reflection of what happened at the meeting than his testimony at
the hearing, more than 2 years later. Moreover, it makes sense
that, after being hit with the news that the sous chefs were now
ACMs and no longer in the unit, Vazquez would want information
to investigate this sudden change. Thus, I credit Vazquez that she
asked Courounis for the wage rates of the sous chefs before and
after their change to ACMs and for a job description of the new
ACM position. I do not believe Courounis post-hoc interpretation
of his notes, 2 years after the fact, as indicating that Vazquez
wanted to investigate further on her own, rather than that she
wanted Respondent to provide the information.
Respondent does not contend that it has provided the Union
with the wage rates of the ACMs or the job description of the
reevaluated sous chef/ACM position. Such information is clearly
relevant to the Union’s performance of its representational func-
tions, even if Respondent is correct that the ACMs are nonunit
employees. The promotion of the recently included unit employ-
ees into this position had a potential impact on unit employees and
unit work and the information would be necessary for the Union
to evaluate whether the change from sous chefs to ACM violated
the agreement or the arbitrator’s award. Thus, the Union was
entitled to this information, unless Respondent can show that the
Union had waived its rights under the contract.
G. Respondent’s Duty to Bargain
Having found, in agreement with the arbitrator, that the sous
chefs were nonsupervisory unit employees, and that Respondent
implemented changes in their salary, duties and responsibilities,
on January 10, with the intent of conferring supervisory authority
on them and thereby affecting their unit status, it must be deter-
mined what, if any, obligation Respondent had to notify the Union
and bargain about these changes, if requested. I will initially as-
sume, for purposes of argument, that the additional authority con-
ferred on the sous chefs and exercised by them was sufficient to
establish the supervisory status of the reclassified ACM position.
The General Counsel argues, on the one hand, that Respon-
dent’s actions amounted to an alteration in the definition or scope
of the unit, a permissive subject of bargaining, and that Respon-
dent could not implement these changes without the Union’s con-
sent. See, e.g., Holy Cross Hospital, 319 NLRB 1361 (1995). In
the alternative, the General Counsel argues that Respondent had
an obligation to bargain in good faith, to agreement or impasse,
before implementing these changes because they involved a trans-
fer of unit work out of the unit, a mandatory subject of bargaining.
See, e.g., Hampton House, 317 NLRB 1005 (1995). Respondent
argues that it had no obligation to notify or bargain with the Union
about the January reclassification because the sous chef position
was never in the bargaining unit and the work that they performed
had never been performed by unit employees. Respondent relies
on Board cases recognizing the right of an employer to unilater-
ally create new supervisory positions and to select individuals to
fill these positions. See, e.g., St. Louis Telephone Employees
Credit Union, 273 NLRB 625 (1984).
In Holy Cross Hospital, supra, the employer and the union had
a disagreement over the continued inclusion in a nurses’ unit of
“house supervisors.” Unable to resolve their differences, the em-
ployer submitted the dispute to the Board through a unit clarifica-
tion proceeding. The Board, by its Regional Director, resolved the
dispute after a hearing, finding that the “house supervisors” were
not statutory supervisors and were unit employees. Thereafter, the
employer devised a plan to create a new nonunit position, called
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 908
“shift manager” in order to satisfy its perceived need for additional
supervisory coverage. Many of the duties of the house supervi-
sors were transferred to this new position which apparently every-
one agreed was a statutory supervisor. The employer’s plan re-
sulted in the virtual elimination of the unit house supervisor posi-
tion. The Board, in adopting the administrative law judge’s find-
ing that the employer violated Section 8(a)(5) of the Act, empha-
sized that “once a specific job has been included within the scope
of the unit by either Board action or the consent of the parties, the
Employer cannot remove the position without first securing the
consent of the Union or the Board.” 319 NLRB 1361 fn. 2. Ac-
cord: Arizona Electric Power, 250 NLRB 1132 (1980). See also
Hill-Rom Co. v. NLRB, 957 F.2d 454, 457 (7th Cir. 1992); and
Lincoln Child Center, 307 NLRB 288, 315 (1992).
In Hampton House, supra, the employer and the union were
parties to a collective-bargaining agreement covering a unit which
included licensed practical nurses (LPNs). Shortly after the Union
demanded that certain LPNs be terminated for nonpayment of
dues, the employer promoted them to a new position of LPN su-
pervisor and insisted they were no longer in the unit. The LPN
supervisors continued to perform the work they had done as unit
LPNs, although they were assigned additional supervisory respon-
sibilities. In agreeing with the judge that the employer’s actions
violated Section 8(a)(5), the Board characterized the change as a
transfer of work from the bargaining unit. The Board disagreed
with the judge’s analysis that the employer changed the scope of
the unit because not all LPNs were promoted to the new position.
In finding a violation, the Board recognized, as Respondent here
argues, that neither the decision to create new supervisory posi-
tions nor the selection of individuals to fill them were mandatory
subjects of bargaining. Even assuming that the LPN supervisors
were statutory supervisors, the Board found that the critical fact
was that they continued to perform unit work. Thus, the Board
held that, where the new supervisor continues to perform former
bargaining unit work, an employer must bargain before removing
work from the unit. Accord: Legal Aid Bureau, 319 NLRB 159
(1995); Fry Foods, 241 NLRB 76, 88 (1979); and cases cited
therein. Cf. Bridgeport & Port Jefferson Steamboat Co., 313
NLRB 542, 545 (1993) (Board found respondent in fact bargained
in good faith to impasse before implementing promotion of unit
captains to supervisors which resulted in transfer of work from the
unit).
Respondent’s argument that the sous chefs were never in the
unit and that the work they performed was never unit work ig-
nores the fact that the parties had arbitrated the issue of their unit
status and had received a determination of that issue at the time
Respondent took the actions affecting the sous chefs. The arbitra-
tor’s decision regarding the unit status of sous chefs was a product
of the parties’ consent as expressed in the collective-bargaining
agreement’s arbitration clause and the provisions regarding moni-
toring of compliance with the recognition clause. Having bar-
gained for this procedure, Respondent could not ignore its results.
Although the Board is not required to defer to the arbitration
award, Respondent had agreed to be bound by the arbitrator’s
determination and the arbitrator had clearly found that the sous
chef position was a unit position on December 14, 1994. Not-
withstanding dicta in the arbitrator’s decision regarding what Re-
spondent could theoretically do if a unit employee “began to per-
form functions that gave them supervisory status,” the sous chefs
were unit employees when Respondent acted unilaterally to re-
classify that position to the nonunit ACM position.
Respondent’s reliance on cases upholding an employer’s right
to create new supervisory positions and to promote unit employees
into those positions is misplaced because Respondent’s own wit-
nesses testified and its records established that Respondent did not
create a new position but reclassified or “re-evaluate[d] an exist-
ing position.” In fact, Hogarty did not follow Respondent’s estab-
lished procedure for adding a new position to a department’s table
of organization and did not post the ACM position for bidding by
employees. As a result of Respondent’s changes, all three indi-
viduals who were sous chefs at the time of the arbitration award
automatically became ACMs. Although a bargaining unit “sous
chef” position was posted, this was not the same position that the
arbitrator had before him. The unit sous chef was limited to work-
ing the a.m. shift, cooking only breakfast and lunch, did not have
any role in creating nightly specials or new items for the menu
and, most importantly, was paid considerably less than the former
sous chefs.
As the General Counsel acknowledges, and the Board itself has
recognized, it is sometimes difficult to determine whether a
change affecting a classification of unit employees is an alteration
in the scope of the unit or a transfer of unit work. See Antelope
Valley Press, 311 NLRB 459 (1993). See also Hill-Rom Co. v.
NLRB, supra, 957 F.2d at 457. Having considered the evidence in
the record and the arguments of the parties, I conclude that the
Board’s decision in Holy Cross Hospital, supra, governs the in-
stant case. As noted above, the sous chef position was included in
the unit by “consent” of the parties. Moreover, Respondent effec-
tively eliminated that position when it reclassified all three em-
ployees occupying the position to supervisors while having the
employees continue to perform essentially the same work they had
previously performed. The unit “sous chef” position that Respon-
dent posted and filled more than a month later was not the same
position. By “re-classifying” an existing unit position in order to
remove it from the bargaining unit, Respondent altered the scope
of the unit. Since it is undisputed that the Union was never con-
sulted regarding this reclassification, it would follow that Respon-
dent violated the Act, unless the Union had previously agreed in
the contract to such an alteration in the unit.
Assuming arguendo that Respondent did not alter the unit by
reclassifying the sous chefs to ACMs, it clearly transferred the
work of the sous chefs out of the unit because there is no dispute
that the ACMs continued to spend the majority of their time in the
same food preparation tasks they had performed as sous chefs.
Moreover, instead of three unit employees performing these tasks,
there was now only one. Contrary to Respondent’s argument, the
changes implemented in January did have a significant impact on
the unit even if Respondent had legitimately promoted the incum-
bent sous chefs to supervisory positions. Because the transfer of
work from the bargaining unit is a mandatory subject of bargain-
ing and because there is no dispute that Respondent did not bar-
gain before implementing the “promotion” of sous chefs to
ACMs, a finding of a violation would likewise follow, absent
proof that the Union had waived its right to bargain about the
transfer of work from the unit.
H. Waiver
Respondent argues that the management-rights clause in the
collective-bargaining agreement between the League and the Un-
ion expressly reserves to Respondent the exclusive right to discon-
tinue, reorganize, or combine any operation, even if the effect is a
reduction in unit work or the number of unit employees. Accord-
ing to Respondent, this right encompasses the right to create and
MT. SINAI HOSPITAL 909
fill new job classifications and alter or eliminate old classifica-
tions. Respondent also cites article X, section 9 as limiting the
Union’s right to file a grievance in situations where Respondent
creates and alters job classifications. Under this provision, the
Union can not challenge the content or description of a job, only
the wage rate assigned by Respondent. Respondent further relies
on new contractual provisions and the bargaining history which
preceded their inclusion in the collective-bargaining agreement to
support its contention that the Union agreed, during 1992 negotia-
tions, that any dispute regarding unit placement of newly created
positions would be resolved exclusively through the griev-
ance/arbitration provisions of the agreement, in essence waiving
its right to file unfair labor practice charges with the Board. Re-
spondent argues that these provisions, and the absence of any
contractual restriction on supervisors performing unit work, also
amount to a waiver of any right the Union had to prior notice and
bargaining regarding transfer of work out of the unit.

The management-rights clause, article XXVII, section 1 pro-
vides as follows:

Except as in this agreement otherwise provided, the Em-
ployer retains the exclusive right to hire, direct and schedule
the working force; to plan, direct and control operations, to
discontinue, subject to the provisions of Paragraph 3 of
thisarticle,21 or reorganize or combine any department or
branch of operations with any consequent reduction or other
changes in the working force; to hire and lay off Employees;
to promulgate rules and regulations; to introduce new or im-
proved methods or facilities regardless of whether or not the
same cause a reduction in the working force and in all re-
spects to carry out, in addition, the ordinary and customary
functions of management. None of these rights will be exer-
cised in a capricious or arbitrary manner.

The 1992 negotiations added a new section 4 to the manage-
ment-rights clause entitled “Monitoring and Enforcement of Rec-
ognition and Subcontracting Provisions,” which, inter alia, re-
quired the Employer to disclose certain information to the Union
on a semiannual basis. Specifically, the Employer was required to
provide:

[A] report including the name, date of hire and job title
for all non-union positions below supervisor which were cre-
ated since July 1, 1984 in departments where bargaining unit
work is performed. The first report, due October 15, 1992,
was to include job descriptions for all such positions, and
subsequent reports would include any job description which
had been changed from the prior reporting period.
[A] departmental count of the number of supervisory
staff who supervise bargaining unit positions.
[A] staffing/payroll report by department including the
name, social security number, date of hire, salary and hours
worked for all unit employees, including part-timers working
1/5 or less the regular schedule, temporary or contingent
workers.

The Employer was also required to provide subcontracting infor-
mation annually. The contract specifically provided that submis-
sion of the above information was not to be deemed an admission
or agreement that the Union represented any of the nonunit posi-
tions and that “criteria which shall determine whether a position is

21 Par. 3 is the subcontracting provision of the collective-bargaining
agreement.
in the bargaining unit include, but are not limited to, if the Em-
ployee performs bargaining unit work and if these duties include
legitimate supervisory functions.” Finally, the parties agreed to
meet to discuss the contents of the reports and further agreed that
any disputes arising about whether an employee in a nonunit posi-
tion should be covered by the collective-bargaining agreement, or
whether work was being subcontracted in violation of the contract,
or whether the recognition clause was being violated shall be
submitted simultaneously to the expedited mediation/arbitration
procedures set forth in the contract and to the 1199/League labor
management committee.
The expedited mediation/arbitration procedures, article
XXXI(A), were also agreed to as part of the 1992 negotiations.
This process was intended to be available to “assist in the disposi-
tion of disciplinary disputes and cases of contract application con-
cerning fact oriented issues, but not to disputes involving contract
interpretations which have League-wide ramifications. The latter
will be presented to the ‘1199/League Labor Management Com-
mittee.’” Either party could request submission of a grievance to
these procedures at third step of the existing grievance procedure.
Respondent also cited article X, section 9, included in the arti-
cles on wages, which reads as follows:

If it is claimed by the Union that the Employer has instituted
a new job classification or substantially modified an existing
job classification, the Union may process a claim for a
change in the job rate for such classification in accordance
with the provisions of article XXXI and XXXII of this
agreement, provided, however, that it is expressly understood
and agreed that neither the Union nor any employee may
grieve or arbitrate with respect to the content or description
of such job or classification.

As noted above, on September 17, 1994, the parties agreed to
extend the 1992 agreement through June 30, 1998, with modifica-
tions. Included in these modifications was the following provision
regarding combining and restructuring jobs:

Each institution shall give the Union thirty (30) days notice
in writing of its intention to combine jobs, to restructure ex-
isting jobs or to create new classifications. The Union may
request a meeting to discuss the employer’s proposal includ-
ing the proposed wage rate. If the parties disagree about job
content or wage rates, the Employer and Union may invoke a
facilitation process (as provided in article 6 (h)). If there is
disagreement on the proposed rate, the Union may submit the
issue to arbitration. In no event shall this procedure delay
implementation of the employer’s proposal.

The 1994 agreement also included modifications to the wage,
benefits, and job security provisions of the 1992 collective-
bargaining agreement and established various joint la-
bor/management committees to facilitate the concept of partner-
ship.
Respondent offered the testimony of the president of the
League, Bruce McIver, and one of its attorneys, Marc Kramer,
regarding the 1992 negotiations and the inclusion in the contract
of the new provisions referred to above. No testimony was of-
fered regarding the 1994 negotiations. According to these wit-
nesses, the Union’s major theme in 1992 negotiations was job
security and “maintaining the integrity of the bargaining unit.”
Kramer testified that Debbie King, the Union’s executive vice
president and negotiator, expressed the Union’s concern that
League members were eroding the bargaining unit by, inter alia,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 910
creating new nonunit positions to perform unit work. To meet
these concerns, the Union proposed restrictions on performance of
unit work by nonunit employees, use of agency employees, and
subcontracting; regular disclosure of information about nonunit
positions in the hospitals; and an expedited grievance/arbitration
procedure to resolve unit placement issues if they arose during the
term of the contract. The League initially opposed these provi-
sions, but after intense negotiations, reached agreement with the
Union on changes in the recognition clause addressing agency and
part-time employees, an expedited grievance/arbitration procedure
with the addition of a mediation step before arbitration and the
language which can be found at article XXVII, section 4 dealing
with disclosure of information regarding nonunit positions. The
Union ultimately dropped its proposal for contractual restrictions
on supervisors doing bargaining unit work. McIver testified that
the League had rejected this proposal because of a practice among
League members to have supervisors perform unit work in a vari-
ety of situations and a desire among the members not to be con-
strained by the contract in this regard. According to McIver, the
League agreed to the monitoring and expedited arbitration provi-
sions because of a willingness to address the Union’s concerns
that many “supervisory” job descriptions were really a fiction to
keep employees out of the unit. Kramer also testified that, al-
though there is no contractual restriction on supervisors perform-
ing unit work, “it is clear in the collective-bargaining agreement
about the Union’s right to review supervisors and whether they are
supervisors or just regular old employees covered by the collec-
tive-bargaining agreement.”
Much of the discussion which preceded agreement on these is-
sues took place in a subcommittee of the parties full negotiating
committees. The Union had proposed that negotiations regarding
these subjects be treated as nonprecedential, meaning that neither
party could use statements or proposals made during such negotia-
tions against the other party in any future proceedings, including
arbitrations and NLRB proceedings. Respondent’s witnesses
denied they agreed to this proposal and there is no written agree-
ment to that effect. However, the Union’s proposal for “non-
precedential” bargaining contains a footnote stating that the parties
had agreed to conduct negotiations on these topics on such a basis
and there is no evidence that any representative of the League
objected to the wording of the footnote. Moreover, Kramer’s
denial that the subcommittee dealing with these issues had been
called the nonprecedential subcommittee was contradicted by his
own notes of bargaining sessions of that subcommittee. Kramer
labeled these meetings in his notes, “non-precedential meeting.”
The Charging Party offered the testimony of King and its labor
counsel, Richard Levy, who agreed with Respondent’s witnesses
that job security was a major issue for the Union during the 1992
negotiations. Levy, who drafted the Union’s proposals, testified
that the purpose of proposing a nonprecedential subcommittee to
discuss certain topics was to facilitate open and frank discussion
of topics where each side believed it had substantial contract rights
already without fear that the other side would use these discus-
sions against them in the future to support a claim of waiver.
Levy and King testified that McIver agreed to this procedure,
although they conceded that that agreement was not reduced to
writing. According to Levy, one of the topics discussed in the
nonprecedential subcommittee was the Union’s proposal limiting
performance of unit work by supervisors. Levy testified that the
Union had won arbitrations on this issue but wanted to codify this
limitation in the collective-bargaining agreement to prevent on-
going disputes in this area. Levy conceded that the League op-
posed an explicit limitation in the contract and the Union ulti-
mately dropped the proposal. Levy testified that the parties agreed
to maintain the status quo on this issue, i.e., the Union would con-
tinue to assert that the contract did not allow supervisors to per-
form unit work and would challenge such instances through the
grievance procedure, as they had done in the past. In support of
this testimony, the Charging Party offered into evidence an arbi-
tration award dated March 29, 1996, upholding such a grievance
filed by the Union against another League member. Levy and
King testified that the purpose of the monitoring and enforcement
provisions in article XXVII, section 4 was to ensure the Union
was aware of unit placement issues early enough to resolve them
through discussions with management. Levy and King denied
that there was any discussion suggesting that this was the only
information the Union would be entitled to during the term of the
contract. In this regard, McIver himself testified that nothing in
the collective-bargaining agreement expressly provides that the
information identified in article XXVII, section 4 is the only in-
formation that the Union is entitled to. According to McIver,
“they’re entitled to all kinds of information.”22
It is well established that a waiver of statutory bargaining rights
must be “clear and unmistakable.” Metropolitan Edison Co. v.
NLRB, 460 U.S. 693, 708 (1983). The Board, in applying this
test, has held that a contract clause must specifically include the
subject at issue and that bargaining history must show that the
matter at issue was fully discussed and consciously explored dur-
ing negotiations and that the Union consciously yielded or clearly
and unmistakably waived its interest in the subject matter before a
waiver will be found. Johnson-Bateman Co., 295 NLRB 180,
184–188 (1989), and cases cited therein. Accord: Bozeman Dea-
coness Hospital, 322 NLRB 1107 (1997); and Postal Service, 306
NLRB 640, 642–643 (1992), enf. denied 8 F.3d 832 (D.C. Cir.
1993).23
In American Stores Packing Co., 277 NLRB 1656 (1986), cited
by Respondent, the Board found a waiver of the union’s right to
bargain regarding the employer’s decision to close its plant and
remove all work from the bargaining unit in the plain meaning of
a letter of intent, by which the following phrase was included in
the management-rights clause:

[T]o determine whether and to what extent work required in
its business shall be performed by employees covered by the
collective-bargaining agreement

Similarly, the Board found in another case relied on by Respon-
dent that the union waived its right to bargain over changes in an
employer’s absenteeism policy by agreeing to dismissal and man-
agement rights clauses in which the employer retained the right to
discipline employees for neglect of duty and by the union’s failure

22 On redirect, McIver for the first time testified to a conversation with
King in which he claims to have specifically asked her: “[D]oes the fact that
you want all this information and monitoring system expressed in the con-
tract mean that you’re going to deal with these as contractual issues . . .
because, if you’re not, I’m not going to do it” and that King replied: “We
understand that. We want it . . . that’s why we’re putting it in the contract.
That’s why we want it in the agreement.” I do not credit McIver regarding
this conversation. If in fact such a conversation had occurred, Respondent
would have brought it out on direct examination, rather than waiting until
after the Union had made a point on cross-examination.
23 The Board has thus far declined to apply the D.C. Circuit’s less rigid
“contract coverage” test when determining whether contract language may
be invoked as a defense to an alleged failure to bargain over changes in
mandatory subjects. Edgar P. Benjamin Healthcare Center, 322 NLRB 750
(1996), and cases cited therein.
MT. SINAI HOSPITAL 911
to challenge the unilateral nature of numerous previous revisions
in the employer’s policies. Emery Enterprises, 268 NLRB 824
(1984). These cases are distinguishable.
None of the contractual provisions cited by Respondent estab-
lish, on their face, prior union consent to the actions taken by Re-
spondent, nor a waiver of the Union’s right to advance notice and
an opportunity to bargain about such actions. The management-
rights clause does not specifically address the subject at issue here,
whether characterized as the reevaluation/reclassification of a unit
position to remove it from the unit or a transfer of work from unit
employees to nonunit employees. Although Respondent is correct
that Respondent has retained the right to “discontinue . . . reorgan-
ize or combine any department or branch of operations,” that is
not what it did here. The 11 west private unit continued to exist
and function as it previously did. There was no change in the or-
ganizational structure of the unit as shown on the PAQs. The pro-
motion of the department head (Hogarty) and any assignment of
additional catering duties to the department manager (Narduli)
clearly did not represent a reorganization or combination of de-
partments or branches of operation.24 None of the other enumer-
ated rights retained by Respondent clearly cover the changes im-
plemented by Respondent.
The new monitoring and enforcement provisions added to the
management-rights clause in 1992 do address the subject of
nonunit positions being created to erode the bargaining unit.
However, these provisions merely establish a procedure for the
Union to investigate such claims and enforce them through the
contract. They do not, on their face, give prior consent to the
employer members of the League to create or modify nonunit
positions where such actions may have an impact on unit work
and unit employees. On the contrary, they evidence the Union’s
continuing interest in the subject of nonunit classifications per-
forming unit work which may erode or diminish the unit during
the term of the contract.
Any limit on the Union’s right to grieve job content or descrip-
tion under the contract’s wage provision (art. X, sec. 9) would
apply, on its face, only to the creation or modification of unit clas-
sifications which remain in the unit because, as I’m sure Respon-
dent will agree, the Union has no right to process a claim under
the contract for a change in the job rate of a newly created or
modified nonunit position. Thus, this provision has no application
to the facts in this case, even under Respondent’s version of them.
In any event, article X, section 9 was apparently modified by the
September 1994 agreement which required League employers to
give the Union 30 days advance notice before restructuring exist-
ing jobs or creating new unit classifications with an opportunity to
discuss, among other things, job content. This hardly establishes a
waiver or relinquishment of the Union’s interest, for the term of
the contract, in the content or pay rate of unit classifications.
Moreover, the testimony and documents offered by Respondent
to show bargaining history do not establish either consent or a
clear and unmistakable waiver. On the contrary, they show the
Union’s reservation of its right to challenge the creation of puta-
tively nonunit supervisory positions where those positions have a
potential impact on the bargaining unit. As Kramer, a member of
the League’s negotiating committee admitted, “[I]t is clear in the
collective-bargaining agreement about the union’s right to review

24 I have already found that these changes were not the cause of the re-
evaluation of the sous chef position. In any event, Respondent never at-
tempted to show that its January actions somehow combined the 11 west
and catering departments.
supervisors and whether they are supervisors or just regular old
employees covered by the collective-bargaining agreement.”
Thus, the successful negotiation of contractual provisions to moni-
tor and enforce the recognition clause can hardly be interpreted as
a conscious relinquishment of the right to bargain about either
removal of classifications from the unit or transfer of work from
unit to nonunit employees. Similarly, the Union’s abandonment
of its proposed contractual restrictions on supervisors performing
unit work, in light of inclusion of article XXVII, section 4, does
not prove either prior consent to Respondent’s January actions
regarding the sous chefs, nor waiver of the Union’s right to bar-
gain about these changes. In fact, arbitration awards under the
1992 agreement have upheld the Union’s position that the regular
assignment of unit work to supervisory employees violates the
collective-bargaining agreement, notwithstanding the absence of
an explicit contractual limitation.
Respondent further asserts that the Union waived its right to the
information requested at the January 19 meeting by agreeing to
article XXVII, section 4, the monitoring and enforcement provi-
sions of the contract. Respondent argues that, because the Union
initially proposed language seeking more information than that
enumerated in the final agreement, it gave up its right to seek,
during the term of the agreement, any other information on the
subject of unit placement of disputed nonunit classifications.
Respondent’s argument is contradicted by its own witness,
McIver, who served as the League’s chief spokesman during the
1992 negotiations. McIver admitted that nothing in the collective-
bargaining agreement expressly provides that the information
identified in article XXVII, section 4 is the only information the
Union is entitled to, and that, in fact, “the Union is entitled to all
kinds of information.” This is consistent with Board precedent
holding that a contract provision requiring an employer to provide
certain information to a union will not be found to waive a union’s
statutory right to other information, unless such a waiver is ex-
pressly stated in the agreement. Gannett Co., 305 NLRB 906
(1991); Bozzuto’s, Inc., 275 NLRB 353 (1985); General Dynam-
ics Corp., 268 NLRB 1432 fn. 2 (1984); and General Electric Co.,
173 NLRB 164 (1968). Cf. United Technologies Corp., 274
NLRB 504, 507 (1985).
Finally, I find that the inclusion of article XXVII, section 4 in
the contract during the 1992 negotiations did not constitute a
waiver of the Union’s right to pursue a remedy before the NLRB
over a League member’s unilateral removal of unit classifications
or unit work. Although the parties agreed through this language to
share information regarding disputed nonunit positions and dis-
cuss unit placement issues, with any unresolved disputes being
subject to resolution through the mediation and arbitration provi-
sions, nothing in the collective-bargaining agreement expressly
provides that the Union has given up its right of access to the
Board’s remedial procedures. Nor does the history of negotiations
preceding agreement on this provision establish such a waiver.
The Board applies the same “clear and unmistakable” standard to
determine whether a party has waived its right to file charges or
petitions with the Board. See Queen of the Valley Hospital, 316
NLRB 721 (1995). That test is not met here.
In reaching this conclusion, I am mindful of the Board’s policy
of encouraging alternative dispute resolution. However, in the
instant case, the Union did attempt to resolve its dispute over unit
placement of sous chefs through the contractual procedures, only
to find that the result it achieved there was ephemeral. Accord-
ingly, Respondent’s unilateral reclassification of sous chefs to
nonunit ACMs, and its refusal to furnish the Union with requested
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 912
information which was relevant and necessary to the Union’s
investigation of this change, violated Section 8(a)(5) and (1) of the
Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act, and the Union is a
labor organization within the meaning of Section 2(5) of the Act.
2. The Union is the exclusive collective-bargaining representa-
tive of an appropriate unit of Respondent’s service and mainte-
nance employees, including sous chefs, but excluding statutory
supervisors and others as specifically enumerated in article I of the
collective-bargaining agreement between the League and the Un-
ion which is effective through June 30, 1998.
3. By unilaterally reclassifying employees in the unit position
of sous chef to the nonunit position of ACM and transferring the
work of the employees out of the bargaining unit, Respondent has
altered the scope of the unit without the Union’s consent and has
failed and refused to bargain in good faith with the Union regard-
ing the transfer of work from the unit in violation of Section
8(a)(5) and (1) of the Act.
4. By failing and refusing to furnish the Union, upon request,
with the wage rates and job descriptions of the job classifications
of sous chef and ACM, the Respondent violated Section 8(a)(5)
and (1) of the Act.
5. Respondent has engaged in unfair labor practices affecting
commerce within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain unfair
labor practices, I find that it must be ordered to cease and desist
and to take certain affirmative action designed to effectuate the
policies of the Act.
In order to restore the status quo ante, Respondent shall be re-
quired to rescind the January 10, 1995, “re-evaluation” and conse-
quent reclassification of the sous chef job classification to ACM,
recognize the Union as the exclusive collective-bargaining repre-
sentative of the employees occupying the ACM position and,
upon request, bargain with the Union regarding those employees’
wages, hours, and other terms and conditions of employment.
Respondent shall be required to apply the terms of the existing
collective-bargaining agreement between the Union and the
League to employees occupying the ACM position in the absence
of agreement to the contrary. However, nothing herein shall be
construed to authorize or require the withdrawal or elimination of
any wage increase or other improved benefits or terms or condi-
tions of employment which may have been afforded to the ACMs
as compared to the wages, benefits and terms or conditions of
employment of bargaining unit employees.
Furthermore, Respondent shall be ordered to notify and, upon
request, bargain in good faith with the Union before transferring
any work from unit employees to nonunit employees. Although it
does not appear from the record before me that any employees
suffered economic loss by reason of Respondent’s actions, I shall
order Respondent to make whole unit employees if it can be
shown that they have suffered any loss of wages and benefits as a
result of Respondent’s unlawful actions. Backpay, if there is any,
shall be computed in the manner prescribed in Ogle Protection
Service, 183 NLRB 682 (1970), with interest as set forth in New
Horizons for the Retarded, 283 NLRB 1173 (1987). To the ex-
tent, if any, that sous chefs/ACMs lost coverage for various bene-
fits provided under the collective-bargaining agreement, I shall
order Respondent to reimburse them for any expenses incurred as
a result of their noncoverage, as set forth in Kraft Plumbing &
Heating, 252 NLRB 891 fn. 2 (1980), enfd. mem. 661 F.2d 940
(9th Cir. 1981). Finally, Respondent will be ordered to provide all
information the Union requested at the January 19, 1995 meeting,
to the extent the Respondent has not already done so.
On these findings of fact and conclusions of law and on the en-
tire record, I issue the following recommended25
ORDER
The Respondent, Mt. Sinai Hospital, New York, New York, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Excluding assistant culinary managers who perform the
work of sous chefs from the service and maintenance bargaining
unit represented by 1199, National Health and Human Service
Employees Union without the consent of the Union.
(b) Failing and refusing to recognize the Union as the exclusive
collective-bargaining representative of employees occupying the
position of sous chef/assistant culinary manager and failing to
apply the terms of the existing collective-bargaining agreement to
those employees.
(c) Transferring work from unit employees to nonunit employ-
ees without first affording the Union notice and an opportunity to
bargain regarding such transfers.
(d) Failing and refusing to provide information to the Union,
upon request, which is relevant and necessary to the performance
of its functions as the exclusive collective-bargaining representa-
tive of the employees in the unit.
(e) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed them
by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate
the policies of the Act.
(a) Rescind the January 10, 1995 “re-evaluation” and conse-
quent reclassification of the sous chef job classification to assistant
culinary manager (ACM).
(b) Recognize the Union as the exclusive collective-bargaining
representative of the employees occupying the ACM position and,
upon request, bargain with the Union regarding those employees’
wages, hours, and other terms and conditions of employment.
(c) Apply the terms of the existing collective-bargaining
agreement between the Union and the League to employees occu-
pying the ACM position, in the absence of agreement to the con-
trary. However, nothing herein shall be construed to authorize or
require the withdrawal or elimination of any wage increase or
other improved benefits or terms or conditions of employment
which may have been afforded to the ACMs as compared to the
wages, benefits, and terms, or conditions of employment of bar-
gaining unit employees.
(d) Notify and, upon request, bargain with the Union in good
faith before transferring any work from unit employees to nonunit
employees.
(e) Make whole, in the manner described in the remedy portion
of this decision, any unit employees for any loss of wages and
benefits they may have suffered as a result of Respondent’s
unlawful actions and, to the extent that sous chefs/ACMs lost
coverage for various benefits provided under the collective-

25 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions and recommended 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.
MT. SINAI HOSPITAL 913
bargaining agreement, reimburse them for any expenses incurred
as a result of their noncoverage.
(f) Provide all information the Union requested at the January
19, 1995 meeting, to the extent the Respondent has not already
done so.
(g) Preserve and, within 14 days of a request, make available to
the Board or its agents for examination and copying, all payroll
records, social security payment records, timecards, personnel
records and reports, and all other records necessary to analyze the
amount of any backpay which may be due under the terms of this
Order.
(h) Within 14 days after service by the Region, post at its facil-
ity in New York, New York, copies of the attached notice marked
“Appendix.”26 Copies of the notice, on forms provided by the
Regional Director for Region 2, after being signed by the Respon-
dent’s authorized representative, shall be posted by the Respon-
dent and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are cus-
tomarily 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 former employees employed by the Respondent at any time
since February 15, 1995.
(i) Within 21 days after service by the Region, file with the Re-
gional Director a sworn certification of a responsible official on a
form provided by the Region attesting to the steps that the Re-
spondent 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 violated
the National Labor Relations Act and has ordered us to post and
abide by this notice.

WE WILL NOT exclude assistant culinary managers who perform
the work of sous chefs from the service and maintenance bargain-

ees.
26 If this Order is enforced by a judgment of a United States court of ap-
peals, 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.”
ing unit represented by 1199, National Health and Human Service
Employees Union without the consent of the Union.
WE WILL NOT fail and refuse to recognize the Union as the ex-
clusive collective-bargaining representative of employees occupy-
ing the position of sous chef/assistant culinary manager and WE
WILL NOT fail and refuse to apply the terms of the existing collec-
tive-bargaining agreement to those employees.
WE WILL NOT transfer work from unit employees to nonunit
employees without first affording the Union notice and an oppor-
tunity to bargain regarding such transfers.
WE WILL NOT fail and refuse to provide information to the Un-
ion, upon request, which is relevant and necessary to the perform-
ance of its functions as the exclusive collective bargaining repre-
sentative of the employees in the unit.
WE WILL NOT, in any like or related manner interfere with, re-
strain, or coerce employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WILL rescind the January 10, 1995, “re-evaluation” and
consequent reclassification of the sous chef job classification to
assistant culinary manager (ACM).
WE WILL recognize the Union as the exclusive collective-
bargaining representative of the employees occupying the ACM
position and, upon request, bargain with the Union regarding
those employees’ wages, hours, and other terms and conditions of
employment.
WE WILL apply the terms of the existing collective-bargaining
agreement between the Union and the League of Voluntary
Hospitals and Homes of New York to employees occupying the
ACM position, in the absence of agreement to the contrary.
However, the Board has not authorized or required us to withdraw
or eliminate any wage increase or other improved benefits or
terms or conditions of employment which may have been afforded
to the ACMs as compared to the wages, benefits, and terms, or
conditions of employment of bargaining unit employ
WE WILL notify and, upon request, bargain with the Union in
good faith before transferring any work from unit employees to
nonunit employees.
WE WILL make whole any unit employees for any loss of wages
and benefits they may have suffered as a result of our unlawful
actions and, to the extent the sous chefs/ACMs lost coverage for
various benefits provided under the collective-bargaining agree-
ment, WE WILL reimburse them for any expenses incurred as a
result of their noncoverage.
WE WILL provide all information the Union requested at the
January 19, 1995 meeting, to the extent we have not already done
so.
MT. SINAI HOSPITAL