Saints Mary And Elizabeth Hospital

National Labor Relations Board - Board Decisions

Nov 7, 1986

282 N.L.R.B. 73 (N.L.R.B. 1986)

STS. MARY & ELIZABETH HOSPITAL 73
Nazareth Literary & Benevolent Institute, Inc.,
d/b/a Saints Mary and Elizabeth Hospital and
Kentucky Nurses' Association . Cases 9-CA-
20290 and 9-CA-20370
7 November 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND STEPHENS
On 9 May 1984 Administrative Law Judge Mi-
chael O. Miller issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, and
conclusions' and to adopt the recommended Order
as modified.
THE AMENDED REMEDY
The Respondent has excepted to the judge's re-
quirement that the Respondent cease and desist
from unilaterally changing "the hours of employ-
ment of recovery room nurses," in view of the
judge's finding that the Respondent's violation of
the Act with regard to these unit employees con-
sisted only of the Respondent's unilaterally sending
them home prior to the end of their regularly
scheduled shift.2 We find merit in this exception
and shall amend the remedy accordingly.3
AMENDED CONCLUSIONS OF LAW
Substitute the following for further Conclusion
of Law 2.
1 In his analysis of the Respondent's bargaining obligation, the judge
applied the principles articulated in Presbyterian Hospital, 241 NLRB 996
(1979), and Dow Chemical Co., 250 NLRB 756 (1980) The Respondent
excepts to application of those principles here, contending that the Board
should instead apply the "at risk" doctrine of Mike O'Connor Chevrolet,
209 NLRB 701 (1974), to the postdecertifiication election unilateral
changes at issue Even assuming the applicability of the "at risk" doc-
trine, however, we would still find the 8(a)(5) violations here because the
Board has determined that the Union won the election and thereby reaf-
firmed its majority representative status. See Sts Mary'& Elizabeth Hospi-
tal, 274 NLRB 607 (1985), and 277 NLRB No. 45 (Nov 12, 1985) (not
reported in Board volumes).
On a related point, we note our agreement with the judge that the
filing of a decertification petition, standing alone, does not permit an em-
ployer to make unilateral changes
Finally, we find no need to rely on the judge's theory of continuing
violation in finding the alleged 8(a)(5) unfair labor practices here.
2 That provision of the Order is too broad not only because of the lun-
ited nature of the conduct underlying the violation but also because the
exact schedule the nurses are to work is a management right under the
contract.
a We shall clarify the Order and notice to conform to the violations
found
"2. The Respondent has violated Section 8(a)(5)
and (1) of the Act by: failing and refusing to fur-
nish the Union with a list of the names and ad-
dresses of current unit employees, as requested;
unilaterally changing the job-posting procedures;
failing to distribute copies of the collective-bargain-
ing agreement to new employees without notice to
or bargaining with the Union; and unilaterally
sending recovery room nurses home prior to the
end of their regularly scheduled shift."
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Nazareth Literary '& Benevolent Insti-
tute, Inc., d/b/a Saints Mary and Elizabeth Hospi-
tal, Louisville, Kentucky, its officers, agents, suc-
cessors, and assigns, shall take the action set forth
in the Order as modified.
1. Substitute the following for paragraph 1(a).
"(a) Refusing to furnish the Union with informa-
tion relevant and necessary to the performance of
its duties as collective-bargaining representative of
the Respondent's employees; and unilaterally
changing terms and conditions of employment in-
cluding job-posting procedures, the distribution of
copies of the expired contract to new employees,
and sending home recovery room nurses prior to
the end of their regularly scheduled shift, without
notice to and bargaining with the Union."'
2. Substitute the attached notice for that of the
administrative law judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT refuse to furnish information to
the Union that is relevant and necessary to the per-
282 NLRB No. 10
74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
formance of the Union's duties as collective-bar-
gaining representative of our employees.
WE WILL NOT, without prior notice to and bar-
gaining with the Union, unilaterally change job-
posting procedures; discontinue distributing copies
of the contract to new employees; or send home
recovery room' nurses prior to the end of their reg-
ularly scheduled shift.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL give the Union a list of the names and
addresses of current bargaining unit employees.
WE WILL give copies of the expired ' contract to
all bargaining unit employees hired since 26 April
1983.
WE WILL make- the recovery room nurses whole
for any wages they lost as a result of having been
involuntarily required to leave work prior to the
end of their .shifts.
WE WILL rescind the job-posting procedures pre-
viously announced ^ on 14 September 1983 to the
extent that they apply to employees within the cer-
tified bargaining unit and WE WILL resume our
practices with respect to job postings and shift
changes.
WE WILL recognize and, on request, bargain
with Kentucky Nurses' Association as the exclusive
bargaining representative- of- all the employees in
the bargaining unit described' below prior to
making any changes in the terms and conditions of
employment of the employees in that unit. The ap-
propriate unit is:
All full-time and ` regular part-time registered
nurses employed by the Employer at its Louis-
ville, Kentucky hospital, including charge
nurses, nursing instructors, admitting and dis-
charge planning nurses, the health nurse, the
health care coordinator, the triage nurse, and
graduate nurses, but excluding all other em-
ployees, and all guards, all head nurses, and all
other- supervisors as defined in the Act.
NAZARETH LITERARY & BENEVO-
LENT INSTITUTE, INC., D/B/A SAINTS
MARY AND ELIZABETH HOSPITAL
Carol L. Shore, Esq., for the General Counsel.'
William A. Blodgett Jr., Esq. (Woodward, Hudson &
- Fulton), of Louisville, Kentucky, for the Respondent.
Margaret Miller, of Louisville, Kentucky, for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
MICHAEL O. MILLER, Administrative Law Judge. This
case was heard on March 5 and 6, 1984, in Louisville,
Kentucky, based on unfair labor practice charges filed by
Kentucky Nurses' Association (the Union) on October 26
and November 21, 1983, and a complaint issued by the
Regional Director for Region 9 of the National Labor
Relations Board (the Board) on December 7, 1983. The
complaint alleges that Nazareth Literary & Benevolent
Institute, Inc., d/b/a Saints Mary and Elizabeth Hospital
(Respondent) violated Section 8(a)(5) and (1) of the Na-
tional Labor Relations Act (the Act). Respondent's
timely filed answer, as amended, although admitting cer-
tain factual allegations of the complaint, denies the com-
mission of any unfair labor practices.
All parties were afforded full opportunity to appear, -to
examine and cross-examine witnesses, and to argue
orally. Briefs, which. have been carefully considered,
were filed on behalf of the General Counsel and Re-
spondent.
Based on the entire record, including my observation
of the witnesses and their demeanor, I make the follow-
ing
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS AND THE UNION'S LABOR
ORGANIZATION STATUS-PRELIMINARY'
CONCLUSIONS OF LAW
Respondent is a Kentucky corporation engaged in
Louisville, Kentucky, as a health care institution, operat-
ing a hospital providing in-patient and out-patient medi-
cal and professional care services. The complaint alleges,
Respondent admits, and I find and conclude that- Re-
spondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
The complaint alleges, Respondent admits, and I find
and conclude that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
On April 24, 1980, the Union was certified as the col-
lective-bargaining representative of Respondent's em-
ployees in the following unit:
All full-time' and regular part-time registered nurses
employed by the Employer at its Louisville, Ken-
tucky hospital, including charge nurses, -nursing in-
structors, admitting and discharge planning nurses,
the health nurse, the health care' coordinator, the
triage nurse, and graduate nurses, but excluding all
other employees, and all guards, all head nurses,
and all other supervisors as defined in the Act."
1 Respondent admits that this unit was certified by the Board in Case
9-RC-13249, but denies that it was a unit appropriate for collective-bar-
gaining purposes The issue of unit appropriateness was not litigated
Continued
STS. MARY & ELIZABETH HOSPITAL
Negotiations between Respondent and the Union result-
ed in a collective-bargaining agreement effective on No-
vember 12, 1981, through October 31, 1982. That con-
tract contained a comprehensive management-rights
clause and other language pertinent to the issues in-
volved herein, as more fully described infra. In July
1982, each party served notice on the other of its intent
to seek modifications or termination of that contract.
On July 21, 1982, in Case 9-RD-1103, a petition to de-
certify the Union was filed. A Stipulation for Certifica-
tion on Consent Election was approved on August 16,
1982, and an election was conducted in the certified unit
on September 9, 1982. The tally of ballots revealed that
126 votes were cast for, and 124 votes were cast against,
continued representation; there were 4challenged ballots
that were sufficient in number to affect the results of the
election. A hearing on the challenges was held on Octo-
ber 19, 1982, and on November 4, 1982, the hearing offi-
cer issued her Report on Challenged Ballots and Recom-
mendation to the Board . The hearing officer recommend-
ed that all four challenges be sustained.2
Subsequent to the decertification election, the parties
met on eight occasions to negotiate a new collective-bar-
gaining agreement . In the second of these meetings, the
Union proposed a revised recognition clause that would
have included the clinicians and specialists within the
unit. It withdrew that proposal in the fifth meeting. The
last meeting was held on January 12, 1983; the parties
did not reach agreement on that date.
Prior to this last meeting , Respondent had received in-
formation tending to indicate that at least two and possi-
bly three of the challenged voters had voted against the
Union and did not desire union representation. Thus, on
the night following the election, the patient/family clini-
cian told Jean Straub, Respondent's director of surgery,
recovery, and outpatient surgery, that she had voted for
the hospital (i.e., against union representation) and was
upset that her vote had been challenged. She repeated
this statement several times thereafter, indicating to
Straub, that she did not wish to be represented by the
Union. Similarly, in a meeting held sometime in Novem-
before me Based on the certification, I find and conclude that this is a
unit appropriate for the purposes of collective bargaining within the
meaning of Sec. 9(b) of the Act.
2 The challenged voters were registered nurses who held the positions
of gerontology clinical specialist, interostomal clinician, patient/family
clinician, and nurse/professional recruiter . Their ballots had been chal-
lenged because their job positions were outside the existing bargaining
unit Regarding the first three positions , the hearing officer found that al-
thoughI they likely would have been included in an appropriate unit in an
initial RC or unit clarification proceeding , they were created after the
certification but before agreement on a contract was reached and they
were not discussed in the negotiations or included under the contract
She concluded that the votes cast by the occupants of those positions
were properly challenged because "the only appropriate unit in a decerti-
fication election is the existing or recognized bargaining unit," a unit that
did not include or contemplate inclusion of the clinicians and specialists.
The hearing officer further found that the nurse/professional recruiter
was properly excluded inasmuch as she did "not share a substantial com-
munity of interest with the 'other registered nurses.", Respondent filed ex-
ceptions to the hearing officer's findings and conclusions with respect to
the three nurses who occupied clinician and specialist positions, contend-
ing that their votes should be counted inasmuch as the certified and stipu-
lated unit was a unit of all registered nurses. The hearing officer's report
and Respondent 's exceptions thereto are still pending before the Board
75
her or December 1982, with the patient/family clinician
and another clinician present, the gerontology clinical
specialist told Virginia Wilkerson, Respondent's director
of nursing, "If they would count our votes, there would
be no Union." This same clinician told Wilkerson that
she did not wish to be represented by the Union.3
Adding what it considered to be negative votes by
nurses whom it deemed properly included within the
unit (though the hearing officer had found otherwise) to
the 124 votes against representation in the election, Re-
spondent reached the conclusion that the Union no
longer represented a majority of the hospital's registered
nurses. On February 1, 1983, Respondent wrote the
Union a letter stating, inter alia, the following:
Please be advised that effective February 1, 1983,
our Hospital is suspending all collective bargaining
negotiations with your labor organization pending a
final determination as to whether or not your labor
organization represents a majority of nurses at our
Hospital.
It based that decision, it stated, on evidence of a lack of
majority status, an intention to protect the hospital's
legal right to seek judicial review that, it felt, would be
waived should it "continue to negotiate with your labor
organization and sign an agreement ," and a stated belief-
. . . that the interest of the Hospital and each indi-
vidual, professional nurse is best served by the Hos-
pital's direct communication and voluntary actions
during this potentially lengthy period of judicial
review.
It offered to resolve the issue by having the votes of the
challenged voters counted.
The Union acquiesced in Respondent's suspension of
negotiations; there were no further negotiations or other
communications between the parties subsequent to Feb-
ruary 1, 1983,4 until the Union's demand for information
discussed infra. The Union continued to maintain the
locked bulletin board that was assigned to it in the
nurses' lounge.
As discussed in greater detail in the following section,
between July and November 1983, Respondent made
various changes in terms and conditions of employment
without first discussing those changes with the Union.
Additionally, in October, Respondent rejected the
Union's request for a list of the names and addresses of
current unit employees.
B. Analysis and Conclusions
1. The bargaining obligation
In 'Presbyterian Hospital, 241 NLRB 996 (1979), the
Board applied "the general rule that election results are
not effective until certification" to a situation similar to
the instant case in' which an employer was alleged to
2 Wilkerson was also informed by another supervisor, Norma Mueller,
that both the interostomal clinician and nurse professional recruiter had
told her that they had voted against the Union
4 All dates hereinafter are 1983 unless otherwise specified.
76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have violated Section 8(a)(5) by unilaterally altering
terms and conditions of employment after a decertifica-
tion election but before the results of that election were
certified.5 Quoting from Trico Products Corp., 238 NLRB
1306, 1307 (1978), the Board stated:
To hold otherwise is to invite instability during the
transition period when the employees' choice of
representative is in doubt. Election results are not
always determinative. If the status of the parties
were to change immediately upon the tally of bal-
lots, the possibility of substained objections and
rerun elections might lead to a number of changes
in the collective,-'bargaining relationship before a
representative is finally certified. The general rule
that the election results are not effective until certi-
fication lends certainty and stability to the process,
since the parties may safely maintain the status quo
until the representation question is conclusively re-
solved by the Board.
The Board held that the employer was obligated to re-
frain from making unilateral changes in the terms of the
collective-bargaining agreement from the date of the
election until the, certification of results issued and that
its failure to refrain violated Section 8(a)(5) of the Act.
The same conclusion and result was reached in Dow
Chemical Co., 250 NLRB 756 at 756 (1980), in which the
Board stated: "A union ostensibly losing a decertification
election remains" the established bargaining representative
. until the certification of results issues."8
Here, the record establishes that the Union ostensibly
won the decertification election and that victory had
been sustained, at least at the initial hearing on the chal-
lenges, in the hearing officer's report. This fact, and the
unrebutted (as I find here) presumption that the Union's
previously established (and certified) majority status con-
tinues,' makes this case an appropriate vehicle for appli-
cation of the Board's Presbyterian Hospital-Dow Chemical
rule.
Citing Dresser Industries, supra, footnote 7, Respondent
argues that it had no obligation to furnish the Union
with the requested information or to refrain from taking
unilateral action inasmuch as it had properly withdrawn
recognition "upon forming a good faith belief, based on
the objective'considerations of the vote tally [126 votes
5 In Presbyterian Hospital, the union had ostensibly lost the election but
had filed objections
6 Enforcement of the Board's decision in Dow Chemical was denied at
660 F 2d 637 (5th Cir. 1981) The court held that the appropriate rule
would only require an employer to act at its peril in unilaterally altering
conditions of employment prior to certification, that is, that the employ-
er's conduct would be found violative only if the union were to be ulti-
mately certified as the employees' representative In so holding, the court
applied the rule in Mike O'Connor Chevrolet, 209 NLRB 701 (1974), enf
denied on other grounds 512 F 2d 684 (8th Cir. 1975). Mike O'Connor
Chevrolet involved actions taken by an employer while objections and
challenges were pending following an initial representation election,
rather than a decertification proceeding. Sound principles of administra-
tive law, of course, compel me to follow the law as determined by the
Board unless and until reversed by the Supreme Court.
7 Dresser Industries, 264 NLRB 1088 (1982); Flex Plastics, 262 NLRB
651 (1982), enfd. 726 F 2d 272 (6th Gr. 1984); Barrington Plaza & Trag-
niew, 185 NLRB 962 (1970), enfd. in relevant part 470 F 2d 669 (9th Cir
1972)
in favor of, and 124 against, representation] and the de-
clared [negative] votes of the three challenged voters,
that the Union no longer represented a majority of the
nurses." As noted above, there is a presumption, stem-
ming from its certification and the expired agreement,
that the Union continued as majority representative. The
burden' of rebutting that presumption rests on the party
seeking to do so, here the Respondent, and "clear,
cogent and convincing" proof is required. NLRB v. Flex
Plastics, supra 'at 275 and 262 NLRB at 656; NLRB v.
Pennco, Inc., 684 F.2d 340 (6th Cir. 1982), enfg. 250
NLRB 716 (1980). The factors on which Respondent
relies, as set forth above, fall short of the requisite level
of proof. The filing of the RD petition alone, of course,
does not support a withdrawal of recognition. Dresser In-
dustries, supra; Flex Plastics, supra.8 Neither is the close
vote in the RD election significant in and of itself.
Massey-Ferguson, Inc., 184 NLRB 640, 641 (1970); Indus-
trial Motor Sales, 177 NLRB 270, 273 (1969), and cases
cited therein at fn. 16.
Here, however, Respondent would add to the close
vote the information it had received that three chal-
lenged voters whom it believed belonged in the unit had
voted against the Union and did not desire representa-
tion. This contention must be rejected. The only appro-
priate voting unit for RD purposes is the existing or rec-
ognized bargaining unit. WAPI-TV-AM-FM, 198 NLRB
342 (1972); Booth Broadcasting Co., 134 NLRB ,817
(1962). The three voters were challenged on the Union's
belief that they were not within that unit and, before Re-
spondent's purported withdrawal of recognition, the
Board's hearing officer sustained those challenges. Under
those circumstances, Respondent's opinion about their
eligibility does not establish the requisite "clear, cogent
and convincing" objective considerations to support its
alleged good-faith belief.9 Moreover, the issue of their
eligibility to vote was (and still is) pending before the
Board. Respondent's withdrawal of recognition on, its
opinion of how the Board will rule in the ,pending case is
an arrogation of a function solely reserved to the Board.
If the Board "will not eschew its statutory obligation to
decide" union accretion issues in a setting involving de-
ferral to an impartial arbitrator (Hershey Foods Corp., 208
NLRB 452, 457 (1974)) it certainly cannot eschew that
responsibility here and permit a party to effectively
decide the very representation issue pending before it.
Accordingly, I find, that Respondent has failed to es-
tablish "clear, cogent and convincing" objective consid-
erations supporting a good-faith belief that the Union no
longer enjoyed pajority support. It remained obligated
e Respondent 's argument that the Board should reconsider and reverse
Dresser Industries and reinstate the earlier rule of Telautograph Corp., 199
NLRB 892 (1972), is not appropriately addressed to me I would note,
however, that even under the Telautograph rule, an employer is only re-
quired by the filing of an RD petition to terminate ongoing negotiations
for a new agreement. The incumbent union is still permitted to administer
its contract and process grievances
e Nothing is added to Respondent's position by evidence that the
Union, at one time in the negotiations for a new agreement , sought to
have these three job classifications included in the unit If anything, such
evidence helps establish the understanding of the parties that they were
not considered as having been included within the unit
STS. MARY & ELIZABETH HOSPITAL
to bargain with the Union as the . representative of-its
registered nurses, to deal with it as the incumbent Union,
and to refrain from unilaterally changing terms and con-
ditions of employment. Those terms and conditions are
as set forth in the expired contract. Cummins Component
Plant, 259 NLkB 456, 465 ( 198 1).
2. The 10(b) defense
Respondent further contends that it clearly and un-
equivocally withdrew recognition from the Union on
February 1, 1983, and -that, inasmuch as no unfair labor
practice charge was filed against it within 6 months of
that date, its subsequent refusal to furnish information
and its alleged unilateral changes cannot be challenged
even by charges timely filed as to those acts. Respond-
ent's argument must fail because there was no clear and
unequivocal withdrawal of recognition on February 1,
By its terms, Respondent's February 1 letter purported
not to withdraw recognition unconditionally, but only to
suspend negotiations "pending a final determination as to
whether or not your labor organization represents a ma-
jority of nurses at our hospital." It further offered to
resume bargaining if the Union would withdraw its chal-
lenges and the resulting count revealed majority support
for representation. A refusal to bargain that is contingent
on other occurrences does not start the statute of limita-
tions running. In Bay Medical Center, 252 NLRB 1138
(1980), the employer had repeatedly refused to bargain
with the union until "the legalities of the unit question
are decided." Approximately 1 year after the first ' such
refusal, the employer unilaterally changed hours of em-
ployment. The Board at footnote 3 stated:
Given the uncertainty inherent in Respondent's con-
tingent refusals to bargain, we agree with the Ad-
ministrative Law Judge's conclusion that the 10(b)
period did not begin to run until Respondent unilat-
erally implemented the change in the . . . workday.
See also Upper Mississippi Towing Corp., 246 NLRB 262
(1979), in which the, employer's refusal to bargain with
the incumbent union over a new contract because of a
petition filed by an outside union was held not to be the
equivalent of a withdrawal of recognition.10
Respondent's reliance on Machinists Local 1424 (Bryan
Mfg.) v. NLRB, 362 U.S. 411 (1960), and NLRB v.
McCready & Sons, 482 F,2d 872 (6th Cdr. 1973), is mis-
placed. In Bryan, unlike the instant case, the occurrence
within the limitations period (enforcement of a facially
valid union-security clause) in and of itself did not con-
10 It is recognized that Upper Mississippi Towing is, in some respects,
distinguishable . Thus, in that case, unlike here, the employer never told
the incumbent union that it doubted that union 's majority status . And, at
the time Upper Mississippi Towing arose, Shea Chemical Corp., 121 NLRB
1027 (1958), mandated the cessation of ongoing negotiations during the
pendency of a rival's petition At the time of the events here, Dresser In-
dustrres, supra, required that the employer continue to negotiate with the
incumbent In both cases , however, the employer continued some at-
tributes of representational status In Upper Mississippi Towing, the em-
ployer continued to furnish seniority rosters to the incumbent union and
to advise it of the location of its boats ; in the instant case, Respondent
permitted the Union to retain access to and control of its own bulletin
board in the nurses' lounge
77
stitute, an -unfair labor, practice and could only be found
violative by reliance on the recognition of a minority
union, which had occurred beyond the limitations per-
riod. Here, the acts charged as violative, a refusal to fur-
nish information and alleged unilateral changes, are ide-
pendently violative. In McCready, unlike the instant case,
the act charged to be violative, a refusal to execute an
agreement , was identical to the act that occurred more
than 6 months prior to the filing of the charge. More-
over, there, unlike here, the employer's refusal to sign
was an unequivocal act, not contingent on any future
event.
In any event, as previously noted, I am bound to
follow the law as enunciated by the Board and, to date,
the Board continues to apply the theory of continuing
violations in appropriate cases, contrary to McCready.
Thus, in Al Bryant, Inc., 260 NLRB 128, 135 (1982), it
was held that repudiation of a collective-bargaining
agreement outside the 10(b) period did "not absolve' a re-
spondent from the unfair labor practices which inure[d]
from its continuing failure within the 10(b) period, on
demand, to execute or formally abide by such agree-
ment." Similarly, in Chesapeake & Potomac Telephone
Co., 259 NLRB 225, 230 (1981), enfd. 687 F.2d 633 (2d
Cir. 1982), an employer's refusal to furnish relevant in-
formation prior to the 10(b) period did not insulate it
from a finding of violation based on its subsequent refus-
al to furnish that same information when the request was
made within 6 months of the filing of the charge.11 See
also the Board's decision in Flex Plastics, supra, footnote
26. There, I found, as an alternative basis for rejecting a
10(b) defense, that the union's demand and the employ-
er's repeated refusal within the 10(b) period raised a new
and timely unfair labor practice notwithstanding that the
employer's initial withdrawal of recognition had oc-
curred outside the 6 months' limitations period.
3. Refusal to furnish information
On September 22, the Union's executive director
wrote Respondent's vice president of, human resources,
Thomas Pilgermayer, requesting "a current list of names
and addresses for all bargaining unit nurses." On October
11, Pilgermayer,replied:
I must respectfully decline to respond to your re-
quest of September 22, 1983, until such time [as] the
issue, which is now before the National Labor Rela-
tions Board, has been completely resolved.
In Andy Johnson Co., 230 NLRB 308, 309 (1977), the
Board summarized the applicable law, as follows:
It is well established that wage and employment
information pertaining to bargaining unit employees
is presumptively relevant'for the purposes of collec-
tive bargaining and contract adminstration inasmuch
as such information concerns the heart of the em-
ployer-employee relationship, and that such infor-
i 1 The discussion in Chesapeake & Potomac Telephone includes a
review of those circuit court decisions both accepting and rejecting the
continuing violation theory.
78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mation must be provided upon request to the unit
employees' bargaining representative.2 In addition,
it is well settled that a union is not required to show
the precise relevance of such requested information
unless the employer comes forth with effective re-
buttal.3
2 Western Electric, Inc, 225 NLRB 1378 (1976); Hotel Enter-
prises, Inc., d/b/a Royal Inn of South Bend, 224 NLRB 810 (1976);
Warehouse Foods, A Division of ME Carter and Company, Inc., 223
NLRB 506 (1976); Dynamic Machine Co., 221 NLRB 1140 (1975),
Building Construction Employers Association of Lincoln, Nebraska
and M.W. Anderson Construction Co., 185 NLRB 34 (1970), Cowles
Communications, Inc, 172 NLRB 1909 (1968); Curtiss-Wright Cor-
poration, Wright Aeronautical Division , 145 NLRB 152 (1963), enfd
347 F 2d 61 (C A 3, 1965).
3 Curtiss-Wright Corporation, Wright Aeronautical Div., supra at
69.
Here, as in Andy Johnson, the Respondent refused the
Union's request for the presumptively relevant current
list of the names and addresses of unit employees without
asserting any reasons for that refusal (other than the
pendency of the RD case). On brief, Respondent only as-
serts its contentions with respect to Section 10(b) and its
withdrawal of recognition in defense of that refusal. As I
have rejected those defenses supra, I find that Respond-
ent is, and was at the time of the demand, under an obli-
gation to furnish this information to the Union on its re-
quest, and that its refusal to do so violated Section
8(a)(5) and (1) of the Act, 12
4. The alleged unilateral changes
a. Job posting procedures and criteria
The complaint alleges, and Respondent's amended
answer admits, that about September 14, "Respondent al-
tered the job-posting procedure and criteria for in-house
transfers of employees." The contract that expired on
October 31, 1982, article XV, provides procedures
whereby nurses could initiate requests to change their
position from one unit and/or shift to another. In article
XVI, it provides procedures for the posting of openings
in permanent bargaining unit positions together with the
criteria for filling those positions. In the negotiations that
ended on January 12, Respondent had proposed a new
article XVI. The Union basically agreed with Respond-
ent's proposal but sought the addition of a 5-day posting
period and a procedure for the notification of affected
employees. With, the inclusion of those items, Respond-
ent's proposal would have been essentially acceptable to
the Union; no agreement was reached and the parties
were to discuss this proposal in the next meeting. There
were, of course, no further meetings. On September 14,
Respondent posted,and implemented a new job-posting
procedure for all hospital personnel including the nurses.
The new procedure provided for 10-day posting. It also
provided for notification of affected employees of the
status of their requests within 10 days of the receipt of
12 I note, as pointed out by the General Counsel , that pursuant to the
expired agreement , art. XIV, sec 5 , the furnishing of such a list to the
Union was , in addition to being a statutory obligation , one of the condi-
tions of employment that Respondent was obligated to maintain.
such requests. In addition, it provided that shift changes
within a given unit were not subject to the posting pro-
cedure but were to be made, at least within a unit, by the
head nurse, language that arguably would eliminate
rights previously established in article XV. Finally, the
contract language and Respondent's proposal of January
12 had stipulated that the criteria Respondent would
apply in selecting employees to fill posted positions were
"not to be unreasonably applied." The policy adopted on
September 14 did not include the quoted language.
Respondent contends that no violation may be found
in the foregoing conduct inasmuch as the changes were
essentially those already agreed to by the Union on Janu-
ary 12. Although many were changes similar to those to
which the Union had agreed, it is clear that others (the
10-day posting and the elimination of the language deal-
ing with reasonable application of the criteria) were not.
Moreover, Respondent's new procedure appears to elimi-
nate rights that the nurses had with respect to shift
changes; at least some discussion with the Union to clari-
fy such an ambiguity was warranted. There was neither
notice nor discussion. Accordingly, I must find that by
its failure to notify the Union and discuss with it such
changes in the terms and conditions of employment, Re-
spondent has violated Section 8(a)(5) and (1) of the Act.
b. Job criteria
The complaint alleges, and Respondent's amended
answer admits, that about July 7, Respondent altered the
job criteria for three bargaining unit positions in the edu-
cation instructor job classification. The evidence reflects
that about July 7 Respondent instituted a requirement
that candidates for this position possess a master's degree
rather than the bachelor of science in nursing that had
previously been required.
Respondent contends, and I agree, that it was privi-
leged to make such a change, unilaterally, by the terms
of the management-rights clause in the expired agree-
ment. In pertinent part the clause provides:
[T]he Hospital retains the rights of normal manage-
ment functions including, but not limited to .. .
adopt policies affecting the selection of employees
-... to determine the qualifications, training, experi
ence and technical knowledge necessary for filling
and/or maintaining any job and to judge an em-
ployee's conformity thereto.
Accordingly, I shall recommend that this allegation be
dismissed.) 3
13 The General Counsel, although expressly not waiving her position
with respect to this and certain other allegations, did not brief this issue.
Contrary to the General Counsel's contention at the hearing, following
expiration of a collective-bargaining agreement , the terms of its manage-
ment-rights clause survive as terms and conditions of employment just as
the benefit provisions of such an agreement survive. See Cummins Com-
ponent Plant, supra at 465, Winn-Dixie Stores, 224 NLRB 1418, 1433
(1976)
STS. MARY &I ELIZABETH HOSPITAL 79
c. Wage increase announcement
The complaint alleges , and Respondent 's amended
answer admits , that sometime since September , Respond-
ent announced and subsequently deferred a cost-of-living
wage increase for unit employees.
The General Counsel has not explained the basis on
which this conduct is alleged to be violative and I can
discern none . Accordingly , I shall recommend that her
allegation be dismissed.
d. Copies of the contract
Article VII, "Distribution of Agreement," provides:
The hospital shall provide, at its expense, a copy of
this Agreement to all members of the bargaining
unit and new members of the bargaining unit as
they are employed.
The complaint alleges, but Respondent denies, that Re-
spondent failed to comply with this alleged term or con-
dition of employment subsequent to June. Mary O'Bryan,
staff nurse and chairperson of the Professional Registered
Nurses, the Union's chapter in Respondent's hospital, tes-
tified without objection that, in June, she questioned new
employees and was informed that they had not received
copies. She had no personal knowledge of when such
copies were handed out and she has no personal knowl-
edge about whether employees hired since June had been
given copies of the agreement.
Respondent argues ,that although most terms and con-
ditions of employment continue after the expiration of a
collective-bargaining agreement, the contractual right to
receive a copy of the agreement is similar to the contrac-
tual obligation imposed by union-security and dues-
checkoff clauses, which, the Board has held, do not sur-
vive contract expiration. Peerless Roofing Co., 247 NLRB
500 (1980)', The enforceability of a union-security obliga-
tion, however , is dependent on the continued existence
of a lawful union-security clause. Machinists District 14
(Burroughs Corp.), 231 NLRB 602 (1977)., No such condi-
tion attaches to the obligation to distribute copies of the
contract , expired or not; I can discern no reason to
impose such a ' condition . One of the conditions of em-
ployment for Respondent's nurses was that they would
be given a copy of the document that sets forth their
rights and ' obligations . That condition , I conclude, sur-
vives expiration of the contract for as long as the em-
ployer is obligated not to unilaterally change terms and
conditions of employment.
Respondent further argues that the General Counsel
failed to establish that Respondent has not continued dis-
tribution of the agreements . I cannot agree . In the ab-
sence of any objection, and when considered in the con-
text of Respondent 's position with respect to the survival
of the contract terms that makes probable its failure to
distribute the contracts, O'Bryan's testimony, although
hearsay, is sufficient to sustain the General Counsel's
burden of proof. Colony Kitchens, 217 NLRB 671 fn. 6
(1975). See also RJR Communications, 248 NLRB 920
(1980). Respondent has failed to rebut the General Coun-
sel's'prima facie case about this allegation. Accordingly,
I find that by failing to distribute copies of the expired
agreement to new employees , Respondent has unilateral-
ly altered the ' terms and conditions of employment, in
violation of Section 8(a)(5) of the Act.
e. Overtime authorization
Article XXVI, section 5, the overtime pay provision of
the wage article in the expired contract , provides, that
nurses shall 'be paid at the rate of 1-1/2 times the regular
rate for all hours worked over 40 in a 7-day workweek.
Nurses, it appears, made their own determinations about
when overtime was required and were paid for all such
hours worked . Respondent sought to reduce the amount
of overtime in the department of nursing , and issued a
memorandum,, dated October 24, to the head nurses, di-
rectors of nursing, and supervisors implementing new
overtime guidelines. Pursuant= to that memorandum,
which was available to the staff nurses , when a nurse de-
termined that overtime was required in order to com-
plete her work, she would have to secure prior authori-
zation from a nursing supervisor . Respondent's vice
president of nursing, Eleanor Doughtery, testified that
although the nurses ' were not required to sign up for
overtime 2 hours prior to the end of their shifts, they
were asked to give their supervisors 2 hours' notice of
impending overtime so that those supervisors could find
extra help elsewhere in the hospital who might make the
overtime unneccesary. They had not previously been
asked to do this, i.e., check with their supervisors.
Nurses were encouraged to reduce the amount of over-
time they worked but, when necessary, were permitted
to work overtime and were paid for all overtime worked
whether or not they had secured prior authorization.
'Respondent's concern for the amount of overtime
being worked arose, according to Wilkerson, when prob-
lems with the level of patient census were observed
during the fall of 1983. She sought to justify the over-
time that was being worked , i.e., to make sure that it was
necessary.
The General Counsel has proffered no rationale for
finding the adoption of this policy, which in no way con-
flicted with ,the collective-bargaining agreement, to be an
unlawful , unilateral change in working conditions and I
see none. I agree with Respondent , for each of the rea-
sons set forth in its brief, that there was no impropriety
in adopting this policy. Thus, I find that such efforts to
improve efficiency that do not conflict with any estab-
lished practices or published rules and standards are in-
herently within management's prerogative . Trading Post,
224 NLRB 980 (1976); Wabash Transformer Corp., 215
NLRB 546 (1974). I further fmd that the adoption of this
policy was expressly privileged by the terms of the man-
agement-rights clause, reserving to Respondent the right
"to determine, assign and distribute overtime. " Finally, I
agree that Respondent 's direction that the nurses advise
their supervisors of the need for overtime imposed no
substantial burden on them.
f. Short hours in recovery room
Article X, section 5, of the expired contract provides
that:
80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nurses assigned to Operating Room, Recovery
Room or Outpatient Surgery, working their regu-
larly scheduled shift, will not be sent home prior to
the end of that shift due to lack of work-unless
such an arrangement is mutually agreed upon by
both the nurse and the Hospital.
In November 1983, as one of a number of economy
measures occasioned by a drop in Respondent's patient
census, Respondent began to send recovery room nurses
home on the completion of their work but before the end
of their shift on the average of once or twice a week
without first securing their' agreement. In the operating
rooms, Respondent always was able to secure enough
volunteers so that no nurses were sent home against their
wishes. In most cases, those who were sent home had al-
ready worked the bulk of their shifts.
'Respondent acknowledges the foregoing as fact and
recognizes that early dismissal of recovery room nurses
constitutes a deviation from the contract. However, it
contends that the adoption of this practice inadvertently
arose 'from adoption of the budget day program, dis-
cussed infra, and resulted in no adverse impact on the
employees. Respondent promised that it would - be
stopped. Therefore, it argues, no violation should be
found. I cannot agree that this practice, which resulted
in some employees being sent home with fewer hours of
earnings than they were entitled to, had no adverse
impact . It was a change unilaterally adopted and, as
such, was violative of Section 8(a)(5) of the Act.14
g. Budget days
The fluctuating and lowered hospital census that
caused Respondent to begin releasing the recovery room
nurses early and to adopt the overtime policy, as dis-
cussed above, also caused Respondent to institute what it
called its budget days program. Initially, in the late
summer of 1983, the program was voluntary. Nurses
whom Respondent deemed unnecessary to a given day's
workload would be asked to volunteer to either not
come in at all, to leave after reporting for work' but
without putting in any hours, or to leave before the end
of their shifts. In its initial stages, no one was required to
participate. To this point, Respondent's budget day pro-
gram was but a formalization of existing hospital prac-
tices. However, on October 12, Respondent issued a
memorandum entitled "Budget Days." That memoran-
dum provided:
In order to more economically respond to reduc-
tion in work activity, it will become necessary for
the Hospital to temporary [sic] reduce staff in a par-
ticular department. Any such reduction will occur
in the form of Budget Day Absence.
A Budget Day is defined as that day or part of a
day on which an employee is relieved of any sched-
uled work responsibility due to a decrease in work
demand as reflected by a change in occupancy and
14 The availability of extra work, on other shifts and other days, to
make up for lost earnings resulting from having been sent home does not
negate the adverse impact of Respondent's policy
or work load for a patient unit or other Hospital de-
partment.
The memorandum provided that volunteers would first
be sought within the affected unit but that, in the event
that no volunteers could be found, an individual, selected
from a seniority list for the department, would be re-
quired to take, the budget day.15 All nurses, both part
and full time participated in the budget day program.
Employees were permitted to receive paid vacation
hours for budget day assignments if they had accrued va-
cation benefits. A budget day absence did not affect the
employee's eligibility for any of the hospital's benefits,
including the accumulation of vacation leave. Nurses
who were assigned budget days were permitted to make
up lost time by working on other shifts and in other de-
partments when there were openings for which they
were qualified. They were not permitted to bump less
senior employees in order to continue- working in lieu of
taking a budget day.
The record reflects that from October through March
1, 1984, there have been 28 assigned, and 53 volunteered,
budget days in the critical care department where 76
nurses are employed. In the medical-surgical care units,
employing 102 registered nurses, there had been 74 vol-
unteered budget days and 43 assigned budget days
during the same period of time. The records for the
emergency department are less complete but reflect that
during 1983 there were two assigned budget days.
Although the General Counsel is generally correct in
asserting that even a single day off work without pay
may be deemed a layoff (Clements Wire, 257 NLRB 1058
(1981)), I cannot find that under the terms of the expired
contract, the parties contemplated that the involuntary
loss of one shift or less would be governed by that con-
tract's layoff provisions.. Rather, I find that Respondent
meticulously and even reduntantly protected its right to
adopt a work-scheduling device such as the budget day
program, to meet unexpected changes in workloads.
Thus, I note that article XVIII, "Layoff and Recall," on
which the General Counsel relies to establish a change in
the working conditions, provides for 14 days' written
notice of layoffs and written recall notices. Such exten-
sive notice provisions cannot have been intended to
apply to "layoffs" of 1 day or less. Additionally, I note
that although article VI, "Employee Status," defines a
"Full-Time Nurse" as one who works a regular weekly
schedule of three 12-hour, five 8-hour, or four 10-hour
shifts, the budget day policy specifically provided that
employees who were assigned a budget day would, not
lose any benefit eligibility. Employee status as full or
part time would not change by reason of a budget day
assignment.
On the other hand, as Respondent contends, the ex-
pired contract, both in the management-rights clause and
in the wage program, retains to the Employer the sole
15 The procedure, as adopted, did not provide for the least senor em=
plgyee present always to- be relieved of duty Selection of those to be re-
leased was made from a seniority list, according to reverse seniority, but
each employee was required to take his or her budget day in turn , unless
that individual had earlier volunteered for a budget day.
STS. MARY & ELIZABETH HOSPITAL
discretion to "establish, determine and change: shift start-
ing and quitting times, daily and weekly hours of work,
and number, time and length of shifts for groups of em-
ployees and or individual employees." This language, I
conclude, authorizes the Employer to schedule an em-
ployee for less shifts in a week, or less hours in a shift,
than that employee was usually scheduled, at least in the
absence of other specific guarantees of a 40-hour week
or 8-hour'day' (as was provided for the operating room,
out-patient surgical, and recovery room nurses). It privi-
leged the Employer to establish the budget day program.
Accordingly, I shall recommend that this allegation be
dismissed.
CONCLUSIONS OF LAW
1. At all times relevant hereim, the Kentucky Nurses'
Association has been and is the exclusive representative
of all the employees in the appropriate unit set forth
below for purposes of collective bargaining with respect
to wages, rates of pay, hours of employment, and other
terms and conditions of employment within the meaning
of Section 9(a) of the Act:
All full-time and regular part-time registered nurses
employed by the Employer at its Louisville, Ken-
tucky hospital, including charge nurses, nursing in-
structors, admitting and discharge planning nurses,
the health nurse, the health care coordinator, the
triage nurse, and graduate nurses, but excluding all
other employees, and all guards, all head nurses,
and all other supervisors as defined in the Act.
2. Respondent has violated Section 8(a)(5) and (1) of
the Act by failing and refusing to furnish the Union with
a list of the names and addresses of current unit employ-
ees, as requested; unilaterally changing the job-posting
procedures; failing to distribute copies of the collective-
bargaining agreement to new employees without notice
to or bargaining with the Union; and unilaterally chang-
ing the hours of employment of recovery room nurses.
3. Respondent has not otherwise violated the Act.
4. The aforesaid labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
It having been found that' Respondent has-engaged in
unfair labor practices in violation of Section 8(a)(5) and
(1) of the Act, my recommended Order will require that
it cease and desist therefrom and take certain affirmative
action necessary to effectuate the policies of the Act. As
Respondent has been found to have unlawfully refused
to furnish relevant information to the Union, it will be
required to furnish the requested information. Addition-
ally, it will be required to rescind the job-posting proce-
dure unilaterally adopted on September 14, and to dis-
tribute, copies of the expired agreements to all employees
hired since April 26, 1983 (6 months prior to the filing of
the initial unfair labor practice charge herein), and it
shall be required to make whole all those recovery room
nurses who were required to take budget hours against
their will since implementation of the budget hour pro-
gram in the recovery room, with backpay to be comput-
81
ed in the manner set forth in F. W. Woolworth Co., 90
NLRB 289 (1950), and with interest to be computed in
the manner set forth in Florida Steel Corp., 231 NLRB
651 (1977).16
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed"
ORDER
The Respondent, Nazareth Literary & Benevolent In-
stitute, Inc., d/b/a Saints Mary and Elizabeth Hospital,
Louisville, Kentucky, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Refusing to furnish the Union with information rel-
evant and necessary to the performance of its duties as
collective-bargaining representative of Respondent's em-
ployees; and unilaterally changing terms and conditions
of employment including job-posting procedures, the dis-
tribution of copies of the expired contract to new em-
ployees, and the hours of employment of recovery room
nurses, without notice to and bargaining with the Union.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Furnish the Union with a current list of the unit
employees together with their addresses.
(b) Rescind the job-posting procedures that were
adopted on September 14, 1983, to the extent that they
apply to employees in the bargaining unit.
(c) Give a copy of the expired contract to each em-
ployee in the bargaining unit hired since April 26, 1983.
(d) Make whole all the recovery room nurses' who
were required to work short hours against their will.
(e) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(f) Post at its hospital in Louisville, Kentucky, copies
of the attached notice marked "Appendix." 18 Copies of
the notice, on,' forms provided by the'Regional Director
for Region 9, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted.
16 See generally Isis Plumbing Co., 138 NLRB 716 (1962).
17 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 pur-
poses.
18 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al 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 "
82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Reasonable steps shall be taken by the Respondent to ,(g) Notify the Regional Director in writing within 20
ensure that the notices are not altered , defaced , or' cov- days-from the date of this Order what steps the Respo-
ered by any other material . dent has taken to comply.