Nathan Littauer Hospital Assn.Download PDFNational Labor Relations Board - Board DecisionsJun 2, 1977229 N.L.R.B. 1122 (N.L.R.B. 1977) Copy Citation DECISIONS OF NATIONAL LABOR RELATIONS BOARD Nathan Littauer Hospital Association and The New York State Nurses Association Gloversville Extended Care and Nursing Home Company and The New York State Nurses Association. Cases 3-CA-6581 and 3-CA-6582 June 2, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND WALTHER On February 15, 1977, Administrative Law Judge Josephine H. Klein issued the attached Decision in this proceeding. Thereafter, Respondents filed excep- tions and a supporting brief, and the Charging Party filed an answering brief to Respondents' exceptions, opposing same. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings, 2 and conclusions of the Administrative Law Judge and to adopt her recommended Order, although we do not wholly adopt her reasons therefor. In agreeing with the Administrative Law Judge that Respondents' action violated Section 8(a)(5) and (1) of the Act, we find it unnecessary to consider or rely on any distinction which may be drawn between professional and nonprofessional employees. Nor need we pass upon whether or not Respondents' registered nurses qualify as exempt employees under the Fair Labor Standards Act. Instead, we predicate our Decision upon the fact that Respondents promulgated and implemented a new requirement governing the recording of time and established rules and disciplinary provisions designed to enforce said requirement, without bargaining with the Union. In the circumstances of this case, Respondents' conduct amounted to a refusal to bargain about material, substantial, and significant changes in rules and practices which vitally affected employment condi- tions and employee tenure. See Murphy Diesel Company, 184 NLRB 757 (1970). ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondents, Nathan Littauer 229 NLRB No. 166 Hospital Association and Gloversville Extended Care and Nursing Home Company, Gloversville, New York, their officers, agents, successors, and assigns, shall take the action set forth i:l the said recommended Order. I Respondents' request for oral argument is hereby denied as the entire record in this proceeding, including the exceptions and briefs, adequately presents the issues and positions of the parties. 2 These findings are based, in part, upon credibility determinations of the Administrative Law Judge to which Respondents have constructively excepted. After careful review of the record, we conclude that these credibility findings are not contrary to the clear preponderance of all the relevant evidence. Accordingly, we find no basis for disturbing these findings. Standard Dry Wall Products, Inc.. 91 NLRB 544 (1950). enfd. 188 F.2d 362 (C.A. 3, 1951). DECISION JOSEPHINE H. KLEIN, Administrative Law Judge: Pursu- ant to charges filed on June 3, 1976,1 and amended on June 10, by the New York State Nurses Association, a consolidated complaint was issued on October 20 against Nathan Littauer Hospital Association and Gloversville Extended Care and Nursing Home Company, alleging that the Respondents violated Section 8(a)(5) and (1) of the Act 2 since on or about May 19 by instituting and thereafter maintaining a requirement that registered nurses employed by Respondents record their hours of work by use of a timeclock, without bargaining about such requirement with the registered nurses' collective-bargain- ing agent. Pursuant to due notice, the case was heard before me in Albany, New York, on January 3, 1977. All parties were represented by counsel and were afforded full opportunity to present written and oral evidence and to examine and cross-examine witnesses. The parties waived oral argument and on January 24, 1977, briefs were filed on behalf of the General Counsel, the Charging Party, and the Respon- dents. Upon the entire record, 3 together with careful observa- tion of the witnesses and consideration of the briefs, I make the following: FINDINGS OF FACT I. PRELIMINARY FINDINGS 1. Respondent Nathan Littauer Hospital Association (the Hospital), a New York nonprofit corporation, is engaged in the operation of a hospital in Gloversville, New York. During the past year, a representative period, it derived gross revenues in excess of $500,000 and in the course and conduct of its business operations it purchased, transferred, and delivered to its Gloversville, New York, facility goods and services valued in excess of $50,000 which were transported to said facility directly from points outside the State of New York. 2. Respondent Gloversville Extended Care and Nurs- ing Home Company (the Home), a New York nonprofit Except as otherwise indicated, all dates herein are in 1976. 2 National Labor Relations Act, as amended, 29 U.S.C. § 151, et seq. 3 As amended by a corrective order issued herewith. The order corrects those errors in the transcnpt which may affect the substantive meaning. 1122 NATHAN LITTAUER HOSPITAL ASSN. corporation, operates a combination nursing home and extended care facility in Gloversville, New York. During the past year, a representative period, it derived from its operations gross revenues in excess of $500,000, of which goods and materials valued in excess of $5,000 were transported to and received by said facility from other enterprises located in New York State, which enterprises had received the said goods and services directly from points outside New York State. 3. Respondents are, and have been at all times material herein, employers engaged in commerce within the mean- ing of Section 2(2), (6), and (7) of the Act. 4. The New York State Nurses Association (the Union) is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES A. Facts Registered nurses employed by Respondents are repre- sented by the Union pursuant to certifications issued on March 10. Collective-bargaining negotiations are now in process, but to date no final agreement has been reached on contracts. On May 18, the Union, having learned that Respondents intended to require their registered nurses to punch timeclocks upon arrival at and departure from work, wrote to Respondents protesting "such unilateral action" and claiming that the "matter is subject to negotiations." On May 20 Drew J. Thomas, Respondents' executive director, replied, maintaining that the matter "is a management prerogative and is not a subject of collective bargaining." Thomas' letter further said that the "proper recording of hours worked is essential to the computation of the straight and overtime pay of all employees of the hospital" and that "the use of timeclocks will effectuate compliance with ... the requirements of applicable statutes." On the same day Thomas addressed a letter to each employee concerning the mandatory use of the timeclocks, which was to be effective the following week. In that letter of notification there was a group of questions and answers, including the following: Question - I usually arrive early. Do I have to wait to punch in? Answer - Sorry, no overtime can be paid for early punching-in (unless your supervisor has arranged an early hour for hospital reasons). It is best not to punch in more then 15 minutes before your hours of work start. Question - If I want to use my half-hour lunch period to put my check in the bank, my I? Answer - Yes you may. HOWEVER, it is best for you to tell your supervisor that you intend to do this before you leave. You must punch out before leaving the building for any reason and punch-in when you return. 4 Respondents' brief refers to "the two new timeclocks." However, it appears that an additional one was also installed in the Home, bnnging the total to four. * * Question - Can someone punch-in for me? Answer - No, this is a serious mistake that could subject you and the person punching your card to dismissal. Question - If the line is long at the time clock, will I be docked if I am held up past the start of the shift? Answer - If this is the case, you will not be docked if it is less than 5 minutes; but, if it is a habit, you may be docked if warned about it by your supervisor. It is admitted that Respondents have consistently rejected the Union's requests that the use of timeclocks by registered nurses be a subject for negotiation. Before the May notice, there had been one timeclock at the facilities and some employees had been required to use it. In May, however, additional timeclocks were installed 4 and the great majority of employees were brought under the timeclock requirement. As of the time of the hearing, office clerical and administrative employees and some department secretaries, all unrepresented, were not on the clock. Marie-Celeste Ruberti, the Hospital's director of personnel relations, testified that it is anticipated that the office clericals will be put on the clock when mechanical logistic problems are solved. Apparently, administrative employees, along with management and supervisory personnel, are to remain exempt from the requirement. Before June 1976 no registered nurses were required to punch timeclocks. Part-time registered nurses were re- quired to manually sign in and out on a form maintained for that purpose. Full-time registered nurses, however, were not routinely required to sign in or out. Full-time registered nurses signed out only when they worked beyond the ends of their shifts and they would be entitled to overtime pay for work in excess of 40 hours in a week. It appears that they received overtime compensation only if they signed out and the extra time was approved by the supervisor or head nurse. In all other instances the hours of full-time registered nurses were verified only by visual observation by the supervisor or head nurse, if there was one. Major reliance was placed on the "integrity" of the nurses themselves. As Martha King, director of nursing services, testified: The only control was on units where the head nurse would see or somebody would see they weren't there or they were late.... We were hopeful that they were doing the right thing, coming in on time and leaving on time ... the head nurse on the unit or the charge nurse on the unit was supposed to put down when [a nurse] was late or left early on the time slip. .... We would hope that the integrity of the employees themselves to say when they came in. The facilities operate on three shifts: 7 am. to 3:30 p.m.; 3 to 11:30 p.m.; and 11 p.m. to 7 a.m. Because there is no overlap of shifts in the morning, it is customary for nurses on the morning shift to arrive at work around 15 minutes before 7 a.m. in order to receive from the departing night shift reports concerning special problems and needs. A 1123 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nursing policy manual (which was not introduced into evidence) requires that registered nurses be at their work stations 10 minutes before the start of their shifts. 5 The nurses generally refer to their compliance with that policy as "professional courtesy." They have not usually been paid for the time so spent. In the current negotiations for an initial contract, Respondents propose a change in shift hours, presumably to solve the conflict by providing an overlap of one-half hour between the night and morning shifts. The proposed change would extend the night shift by one-half hour with a meal break added, and change the starting and ending hours of all shifts. 6 The timeclock to be used by the registered nurses was placed inside the employee entrance to the hospital, on the ground (or basement) floor.' Employee lockers are also on the ground floor. The nurses' room, where nurses sign out for overtime, is on the main (or first) floor. According to Nurse Cynthia Morey, a nurse arriving early for "profes- sional courtesy" would have to arrive earlier than before the timeclock was installed. This resulted, she said, in the following manner: She (or he) would arrive at the hospital, go to the locker, proceed to the work station to receive a report from the departing night shift, and then go downstairs again to punch in on the basement floor. Morey said that that procedure was necessitated by the statement in the timeclock announcement that employees should not clock in early. However, as quoted above, the letter says only that "[i]t is best not to punch in more than 15 minutes before your hours of work start," and the evidence indicates that 15 minutes is generally the maximum amount of time consumed in getting reports. The policy manual apparently prescribes only 10 minutes for that purpose. Additionally, it appears that following the procedure outlined by Morey would add only about a minute or so, i.e., the time necessary to go down to the basement, punch the clock, and return to the work station. Martha King conceded that the prohibition of clocking in early is inconsistent with the provision in the policy manual calling for "professional courtesy." Nurse William Nor- man, without contradiction, quoted Ruberti as having made the same concession. Morey referred to the location of the timeclock as one matter to be discussed by the Union with Respondents. She noted that some nurses who were driven to work enter the hospital through the main door on the first floor, and punching the timeclock would require them to make an extra trip down to the basement to punch the clock. However, it appears that they would have to go to the basement in any event, since the lockers are located there. Morey also conceded that arriving employees could be left at the employee entrance, on the ground floor, without entailing any additional driving or substantial inconve- nience. Nurses who drive to work park in the employee parking lot, which is outside the employee entrance on the basement level. I The testimony indicates that this policy applies to all shift changes, including those at 3 and I I p.m., where there is a half-hour overlap. s The morning shift would change from 7 a.m. to 3:30 p.m. to 6:45 a.m. to 3:15 p.m.; the day shift from 3 to 11:30 p.m. to 2:45 to 11:15 p.m.; and the night shift from I I p.m. to 7 a.m. to 10:45 p.m. to 7:15 a.m. Morey also maintained that clocking out inconveniences nurses who work beyond the end of their shifts. According to her, in such cases, in order to receive overtime compensation, the nurses would have to go down to the basement to dress and punch out, and then go up to the first-floor nurses' room to sign out. But there was no credible evidence that nurses could not sign out immediate- ly before going downstairs to change their clothes, punch out, and depart through the employee door. That apparent- ly is the procedure followed by Norman when he works late. On cross-examination of Norman, Respondents' counsel adduced evidence that in 1971, as the result of a wage and hour investigation, some employees had received backpay for overtime. However, Norman also testified, without contradiction, that no registered nurses had received backpay at that time. Despite indications by Respondents' counsel that the investigation had been conducted by the Federal Government, Norman testified that, as far as he knew, it had been made by the New York State Depart- ment of Labor. B. Discussion and Conclusions The General Counsel and the Union maintain that the requirement that nurses punch a timeclock constitutes such a "radical change" as to constitute "a material, substantial and significant change" in Respondents' existing rules and practices within the holding in Murphy Diesel Company, 184 NLRB 757 (1970), enfd. 454 F.2d 303 (C.A. 7, 1971). Respondents, on the other hand, contend that this case is controlled by Rust Craft Broadcasting of New York, Inc., 225 NLRB 327 (1976), in which it was held that an employer did not violate Section 8(a)(5) of the Act by unilaterally substituting a timeclock for its existing practice of having employees sign in and out manually on timecards. As summarized above, the evidence does not establish that the timeclock requirement causes any serious inconve- nience to the registered nurses. Nor does it appear to require any substantial or significant change in their general modus operandi. But that observation does not end the matter. The fact is that until the institution of timeclocks the full-time registered nurses did not have to record their time, except when claiming overtime compen- sation, whereas now they must record their time, in addition to signing out for overtime credit. Respondents' contend that the timeclock requirement is merely a "more efficient and dependable method of enforcing its work place rules," within the scope of Rust Craft Broadcasting; supra. However, as previously stated, full-time registered nurses were not previously required to record their time. Thus, the institution of timeclocks did not merely substitute a mechanical for a manual method of recording time, which was the situation in Rust Craft. I Apparently, the operating room nurses use a clock just outside the operating room. Presumably those working for the Home use the clock in the Home or one located on the ground floor of the hospital near an entrance to the Home. 1124 NATHAN LITTAUER HOSPITAL ASSN. Registered nurses are professional employees under both the National Labor Relations Act s and the Fair Labor Standards Act.9 To professional employees, in whom trust has been reposed, the withdrawal of such confidence would necessarily constitute a substantial, if intangible, change for the worse in working conditions. It is true that at one point Nurse Morey indicated that the nurses did not object to timeclocks as such.'? However, at other points it was clear that there was considerable resentment about the perceived decrease in dignity and respect. When asked to sum up the difference between the nurses' situation before and after institution of the timeclock requirement, Morey answered: I would say the only difference is that it feels as if we have to explain every minute and why hadn't you planned your work better and so on and so forth now, where prior to the time clocks there didn't seem to be that much of a problem. Before they were required to record their time, the full- time registered nurses willingly donated their "professional courtesy." Indeed, they continued to do so after timeclocks were installed, even though they believed that their arriving early for that purpose was inconsistent with the new timeclock rules. As Morey testified it is "traditional in all hospitals" for reports to be given between shifts to cover matters pertaining to patients which are not recorded on their charts. But, as Morey also testified, "There's a difference between giving professional courtesy and being told that you must punch a machine at a certain time." Respondents initially justified the requirement as neces- sary to assure compliance with "applicable statutes." Although not specified, the "applicable statutes" presum- ably include minimum wage laws. While that consideration may be valid as to some employees covered by the timeclock requirement, it may be inapplicable to registered nurses who, as noted above, are professional employees and thus may be exempted from statutory wage regulation. Although Respondents' brief apparently contends that the requirement was dictated, at least in part, by a "Wage and Hour Investigation which resulted in unpaid overtime being discovered and paid," the evidence establishes that the registered nurses were not included in the backpay. Further, the investigation was conducted in 1971, approxi- mately 5 years before the timeclock requirement was imposed. In any event, the reasonableness of the require- ment was a matter to be discussed with the Union. It should further be noted that, under the rules appearing in the question-and-answer portion of the announcement, employees are to be docked for any tardiness in excess of 5 minutes and for lesser tardiness if it is habitual or if it arises from any cause other than delay at the timeclock. The record is barren of any evidence that registered nurses have previously been docked for tardiness, early departure, or absence. Indeed, it does not appear whether the registered s Fairview Hospital, 174 NLRB 924, 930-931 (1969); Consolidated Vultee Aircraft Corporation, Fort Worth Division, 108 NLRB 591, 592 (1954); Eljer Co., 108 NLRB 1417, 1423(1954); Drexel Home, Inc., 182 NLRB 1045, 1048 (1970). Principe v. Luberas, 71 F.Supp. 145 (D.P.R); Hofer v. Federal Cartridge Corporation, 71 F.Supp. 243 (D.C. Minn.. 1947). nurses were salaried or hourly paid. The absence of any previous time-recording requirement strongly suggests that registered nurses were not docked for tardiness. And there was direct evidence that on occasion they were granted permission to leave early without loss of pay. Thus, the new requirement, with associated rules, may substantially affect registered nurses' compensation. It may be noted that, while the nurses may be docked pay, they still are not compensated for "professional courtesy." Apparently to solve the "professional courtesy" problem, Respondents are now proposing a change in shift hours. Thus, it appears that the timeclock requirement as applied to registered nurses is intertwined with the question of hours, which is clearly a matter for negotiation. The present case, therefore, is clearly distinguishable from Rust Craft, supra. First, the instant case involves imposition of a time-recording requirement rather than merely a change in the manner of recording time. Second, the employees here involved are professional employees, whereas, despite their titles, the technicians and engineers involved in Rust Craft apparently were not professionals." The General Counsel and Charging Party also note that in Rust Craft there was a history of successive collective- bargaining agreements, whereas in the present case there has as yet been no contract. This difference might suggest that the present Respondents may be taking retaliatory action against the newly organized registered nurses and/or establishing or demonstrating a predisposition to resist amicable, good-faith bargaining. However, the complaint makes no such allegation and the evidence would not support any such finding. It might be argued, in line with Rust Craft Broadcasting, supra, that, as far as the part-time registered nurses are concerned, the institution of the timeclock requirement was merely a "change to a mechanical procedure for recording time" and thus not a "material, substantial, and a significant change from prior practice." However, even as to the part-time nurses, there is no evidence that they have previously been docked pay for tardiness or early depar- ture. They, like the full-time nurses, are professional employees, to whom the necessity of punching a timeclock might be so abhorrent as to constitute a substantial adverse working condition. In any event, since the part-time and full-time registered nurses are in the same bargaining units, and bargaining is required as to full-time nurses, it is believed that the bargaining requirement should include the part-time nurses as well. None of the parties has suggested that different treatment should be afforded the part-time and full-time nurses in this proceeding. CONCLUSIONS OF LAW 1. Respondents are employers engaged in commerce and the Union is a labor organization within the meaning of the Act. '0 Morey's testimony was: "We had some things that we saw that could be straightened out then and there and we wanted to discuss these issues. I don't ever remember at the bargaining table or any other time saying that the nurses did not want these time clocks." 1 They were covered by the Fair Labor Standards Act. 225 NLRB 327, 328. 1125 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The Union is the statutory representative of all full- time and part-time registered professional nurses employed by Respondent Nathan Littauer Hospital Association and of all full-time and part-time registered nurses employed by Gloversville Extended Care and Nursing Home Company. 3. Since on or about May 19, 1976, Respondents have violated Section 8(a)(5) and (1) of the Act by unilaterally instituting and maintaining a rule requiring the employees in the bargaining units specified above to record their working time by use of timeclocks, and by refusing to bargain concerning that requirement and associated rules, disciplinary procedures, and penalties. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondents have engaged in certain unfair labor practices, I shall recommend that they be required to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondents violated Section 8(a)(5) and (1) of the Act by unilaterally promulgating and implementing a requirement that registered nurses em- ployed by them punch timeclocks upon arrival at and departure from work, and rules and disciplinary provisions associated with such requirement, I shall recommend that Respondent be required to rescind and withdraw such requirement and the rules and disciplinary provisions devised to enforce it. The posting of appropriate notices will also be required. Upon the foregoing findings of fact, conclusions of law, and the entire record herein, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 12 The Respondents, Nathan Littauer Hospital Association and Gloversville Extended Care and Nursing Home Company, Gloversville, New York, their officers, agents, successors, and assigns shall: 1. Cease and desist from: (a) Revising, expanding, or promulgating, and thereafter enforcing, rules or requirements governing the recording of time worked by registered nurses employed by them. (b) Refusing on request of The New York State Nurses Association to discuss and negotiate with it about the revision, expansion, promulgation, and enforcement of rules or requirements governing the recording of time worked by registered nurses employed by them. (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their bargaining rights. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Cancel and withdraw the letters dated May 20, 1976, and signed by Drew J. Thomas, Executive Director, sent to The New York State Nurses Association and to registered nurses employed by Respondents. (b) Upon request, bargain with The New York State Nurses Association about the promulgation, content, and enforcement of rules or requirements concerning the recording of time worked by registered nurses employed by Respondents, and if agreement is reached embody it in a signed contract. (c) Post at the premises of the Hospital and the Home copies of the attached notices marked "Appendix A" 13 and "Appendix B," 13 respectively. Copies of said notices, on forms provided by the Regional Director for Region 3, after being duly signed by the Respondents' authorized representative, shall be posted by Respondents immediate- ly upon receipt thereof, and be maintained by them for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondents to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 3, in writing, within 20 days from the date of this Order, what steps Respondents has taken to comply herewith. i2 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 11 In the event the Board's Order is enforced by a Judgment of United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX A NoncE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE HAVE canceled and withdrawn our letters dated May 20, 1976, concerning the use of timeclocks, addressed to registered nurses employed by us and to their representative, The New York State Nurses Association. WE WILL, upon request of The New York State Nurses Association, bargain about the promulgation, content, and enforcement of any new or revised requirement or rule concerning the recording of time worked by registered nurses employed by us. WE WILL NOT adopt, promulgate, or enforce any new or revised rule or requirement concerning the recording of time worked by registered nurses employed by us without first bargaining with The New York State Nurses Association. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in their right to bargain collectively through their duly selected collec- tive-bargaining representative. NATHAN LITTAUER HOSPITAL ASSOCIATION 1126 NATHAN LITTAUER HOSPITAL ASSN. APPENDIX B NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE HAVE canceled and withdrawn our letters dated May 20, 1976, concerning the use of timeclocks, addressed to registered nurses employed by us and to their representative, The New York State Nurses Association. WE WILL, upon request of The New York State Nurses Association, bargain about the promulgation, content, and enforcement of any new or revised requirement or rule concerning the recording of time worked by registered nurses employed by us. WE WILL NOT adopt, promulgate, or enforce any new or revised rule or requirement concerning the recording of time worked by registered nurses employed by us without first bargaining with The New York State Nurses Association. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in their right to bargain collectively through their duly selected collec- tive-bargaining representative. GLOVERSVILLE EXTENDED CARE AND NURSING HOME COMPANY 1127 Copy with citationCopy as parenthetical citation