South Shore Hospital

National Labor Relations Board - Board Decisions

Sep 28, 1979

245 N.L.R.B. 848 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
South Shore Hospital and Mass. Hospital Workers
Union, Local 880, S.E.I.U., AFL-CIO.' Case I-
CA- 138982
September 28, 1979
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND TRUESDALE
On May 14, 1979, Administrative Law Judge
Frank H. Itkin issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
brief in support of the Administrative Law Judge's
Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,3 and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein. 4
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge as modified be-
low, and hereby orders that the Respondent, South
Shore Hospital, Weymouth, Massachusetts, its offi-
cers, agents, successors, and assigns, shall take the ac-
tion set forth in the said recommended Order, as so
modified:
1. Substitute the following for paragraph (c):
"(c) 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."
I The name of the Union appears as amended at the hearing.
This case was formerly consolidated with Case -CA-14121, which was
severed at the hearing pursuant to a settlement agreement.
Respondent has excepted to certain credibility findings made by the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
Respondent has requested oral argument, This request is hereby denied as
the record, the exceptions, and the briefs adequately present the issues and
positions of the parties.
'We find that the broad injunctive order recommended by the Adminis-
trative Law Judge is not warranted in this case and that a narrow order is
sufficient to remedy the violations found herein. Accordingly we shall modify
the recommended Order and notice to reflect this change.
2. Substitute the following for paragraph 2(e):
"(e) Notify the Regional Director for Region 1, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply herein."
3. 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
After a hearing at which all parties had an opportuni-
ty to present evidence, and cross-examine witnesses,
the National Labor Relations Board has found that
we violated the National Labor Relations Act, as
amended, and has ordered us to post this notice. We
intend to abide by the following:
WE WILL NOI fail or refuse, upon request. to
bargain collectively and in good faith with re-
spect to rates of pay, wages, hours of employ-
ment, and other terms and conditions of employ-
ment with Mass. Hospital Workers Union, Local
880, S.E.I.U., AFL-CIO, as the exclusive bar-
gaining agent of our employees in the unit de-
scribed below, by refusing to bargain with the
Union over wages and other economic benefits
which were proposed by the Union unless and
until the Union agreed to reductions in certain
existing benefits as proposed by us, and by refus-
ing to bargain in good faith with the Union with
respect to wages. The appropriate bargaining
unit is:
All full-time, permanent part-time and part-
time employees of South Shore Hospital at our
Weymouth facility employed as X-ray tech-
nologists, nuclear technologists, laboratory
technicians, laboratory technologists, respira-
tory therapists, respiratory therapy techni-
cians, physical therapy assistants operating
room technicians, EKG technicians, orthope-
dic technicians and pharmacy technicians, but
excluding all licensed practical nurses, regis-
tered nurses, professional employees, clerical
employees, all students, temporary and casual
employees, managerial employees, guards and
supervisors as defined in Section 2(11) of the
Act.
WE WILL NOT discourage membership in said
Union, or in any other labor organization, by
discriminatorily withholding from the above unit
employees wage increases which were granted to
our employees who are not in the above unit.
245 NLRB No. 110
R48
SOUTH SHORE HOSPI1 At.
WE WIll. NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them by
Section 7 of the National Labor Relations Act.
WE Wl.., upon request, bargain collectively
and in good faith with said Union as the exclu-
sive bargaining agent of our employees in the
above unit with respect to rates of pay, wages,
hours of employment, and other terms and con-
ditions of employment, and, if an understanding
is reached, embody such understanding in a
signed agreement.
WE WILL make whole our employees in the
above unit for any monetary losses they may
have suffered as a result of our discriminatory
withholding of wage increases granted to our
nonunit employees, with interest.
SOUTH SHORE HOSPITAL
DECISION
FRANK H. ITKIN. Administrative Law Judge. Unfair la-
bor practice charges were filed by the Union on November
28, 1977, and were amended on December 23, 1977. and on
May 9, 1978. A complaint issued on January 5, 1978. and
was amended on March 30 and May 15, 1978, and later at
the opening of the hearing in this case. Hearings were con-
ducted in Boston on June 26, 27, 28, 29, and on September
5, 1978. Briefly, General Counsel alleges that from about
September 15, 1977, to about March 22, 1978. Respondent
Hospital refused to bargain with the Union over wages and
several other economic benefits which were proposed by the
Union unless or until the Union agreed to reductions in
certain other existing benefits as proposed by the Hospital.
General Counsel further alleges that, thereafter, commenc-
ing about March 22, 1978, Respondent Hospital refused to
bargain in good faith with the Union with respect to wages.
General Counsel contends that Respondent Hospital, by
the foregoing conduct, violated Section 8 (aX5) and (1) of
the National Labor Relations Act. In addition, General
Counsel alleges that Respondent Hospital also withheld in-
volved wage increases from the unit employees which were
granted to nonunit employees from on or about October I,
1977, to on or about April 24, 1978. because the unit em-
ployees had engaged in protected Union activities, in viola-
tion of Section 8(a)(3) and (1) of the Act. Respondent Hos-
pital denies that it violated the Act as alleged. Upon the
entire record, including my observation of the witnesses.
and after due consideration of the briefs of counsel, I make
the following findings of fact and conclusions of law:
FINDINGS OF FACT
A. Introduction
Respondent Hospital, a Massachusetts corporation.
maintains its principal place of business in Weymouth
where it is engaged in operating a health care facility. It is
undisputed and I find and conclude that Respondent Hos-
pital is an employer engaged in commerce as alleged. It is
also undisputed and I find and conclude that the ('harging
Party Union is a labor organization as alleged. Further, it is
undisputed and I find and conclude that.
All full-time, permanent part-time and part-time em-
ployees of Respondent at its We,,mouth fiacility em-
ployed as x-ray technologists, nuclear technologists.
laboratory technicians. laboratlor technologists. respi-
rators therapists. respirator therapy technicians,
physicial therapy assistants, operating room techni-
cians. ekg technicians, orthopedic technicians and
pharmacN technicians, hut c cliud, all licensed practi-
cal nurses, registered nurnurses. protssional emploees.
clerical employees, all students, temporars and casual
employees. managerial employees, guards and, super-
visors as defined in Section 27( 1 ) of the Act. constitute
a unit appropriate for the purposes of' collective bar-
gaining within the meaning of Section 9bh) of the Act.
On April 4, 1974, a majority of the Hospital's employees
in the above unit, by a secret ballot election conducted un-
der the supervision of the Massachusetts State Labor Board
Commission, designated or selected the Union as their rep-
resentative for the purposes of collective bargaining. At all
times since April 4, 1974, as stipulated. the Union has been
the collective bargaining agent of a majority of the employ-
ees in the above unit, and b virtue of Section 9(a) of the
Act, has been and is now the exclusive representative of the
unit employees for the purposes of collective bargaining.
The Hospital, according to the uncontroverted testimony
of Union Representative Gerald Shea and Hospital Asso-
ciate Director Alvin Topham. employed at all times perti-
nent to this case some 1,200 employees. About 100 of these
employees are included in the above unit and are therefore
represented by the Union. The remaining employees are
not represented by a labor organization. he Hospital and
the Union have executed three collective-bargaining agree-
ments pertaining to the unit employees since May 1974.
The most recent agreement expired on September 30, 1977.
Union Respresentative Shea. the Union's chief spokes-
man during the current contract negotiations. testified that
by letter dated June 13, 1977 (G.C. Exh. 2). the Union
notified the Hospital of its "intent to terminate our agree-
ment as of September 30. 1977 .. ." and requested "a meet-
ing . . . so that we may present proposals for modifications
in the agreement effective October 1. 1977." The Union
suggested "an initial meeting sometime the week of June
27." The parties were unable to meet on that date. Subse-
quently, on July 7. 1977. union Representative Shea sent
Michael Brown. attorney and chief spokesman for the Hos-
pital, a letter containing a "copy of the Union's 1977 con-
tract proposal." Shea noted:
We're looking forward to meeting with ou on [July
20. 19771. I hope the Hospital will he prepared to re-
spond to all or most of our proposals then. If you will
be making any proposals for the Hospital, I would ap-
preciate receiving them in advance of our meeting if at
all possible.
General Councel's Exhibit 4 is a copy of the ljnion's pro-
posed 1977 agreement. Shea explained "that the proposal.
as we submitted it to the HIospital in early July. was the
R49
DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
entire existing contract then in effect plus our proposed
changes." The parties thereafter met on the following dates:
July 20, 1977
August 10
August 17
August 31
September 16
September 21
September 27
September 28
October 3
October 4
October 13
October 20
November 2
November 3
November 15
November 16
February 1, 1978
March 22
March 30
April 3
April 18
B. he Bargaining Sessions
1. July 20. 1977
Union Representative Shea testified that at this initial
session on July 20 the Union "reviewed its proposals for
Management" which proposals "had already been sub-
mitted through the mail"; the Union "did go through each
and every one of its proposals and the reasons for them";
the Union "made an oral presentation concerning another
item [a compensatory day off for holiday worked] and sub-
sequently submitted the proposal in writing to the Hospi-
tal" (G.C. Exh. 5); and the parties briefly discussed the
Union's compensatory day off proposal. Shea further testi-
fied that the Union requested the Hospital to bargain about
wages "at the first bargaining session." Shea explained:
At the first bargaining session on July [20], where the
Union reviewed its proposals . . . previously submitted
by mail, the Union noted that in addition to the spe-
cific proposals in .. [G.C. Exh. 4], that the Union was
interested in looking at the question of minimum to
maximum ranges in the Hospital's pay scale for the
technical employees, and that we would be interested
to know if this were also something the Hospital would
be interested in looking at whenever the Hospital was
prepared to make us a counterproposal.
Hospital Associate Director Topham recalled "that the
Union had requested economic counterproposals from time
to time, but I don't know when." Topham later acknowl-
edged that "at the July 20 session the Union had requested
a total counterproposal." This first session ended, according
to Topham, with Hospital attorney and chief spokesman
Brown requesting "data supporting [the Union's] wage pro-
posals."' And, as Shea recalled, "on July 20 the Hospital
did not respond" to the Union's contract proposals.
2. August 10, 1977
At the first session on July 20 Hospital attorney and
spokesman Brown had requested the Union to provide
"data supporting" its wage proposals. Union representative
Shea recalled that at the next session on August 10 the
Union, as requested, "presented certain statistics and re-
i Brown did not testify in this proceeding.
suits of some studies concerning hospital rates and benefits
in the greater Boston area, to back up its economic pro-
posals." In addition, at this second session, the Hospital
submitted to the Union a written document containing
some 12 "initial proposals." (See G.C. Exh. 6.) The lospi-
tal's proposals pertain to, inter ali, the "probationary pe-
riod" of employees; "overtime": "call to work": "pyramid-
ing": "hospital work": "hours": "holidays"; "vacation";
"tuition assistance"; "unpaid leaves of absence": "union
activities": "schedules"; and the term of the agreement.
The document states: "The above are the initial proposals
of the Hospital which reserves the right to submit further
proposals."
Shea testified that the Hospital's "proposals were both
economic and noneconomic, and we discussed all the Hos-
pital's [proposals] at first." Shea claimed, inter alia, that
Hospital "proposal number one on the probationary period
would have changed the time of the probationary period
making it longer . . . proposal number 2 on overtime would
have restricted the opportunity for part-time employees to
earn overtime ... proposal number 3 on call to work would
have . . . substantially reduced the opportunity for employ-
ees to earn premium days ... proposal number 5 would have
written into the contract a prohibition against employees
doing anything other than Hospital assigned work . . .pro-
posal number 6 . . . would have restricted in certain situ-
ations the ability of employees to work overtime . . . pro-
posal number 7 would have changed the formula by which
part-time employees had their holiday benefit computed
and changed it in a way where the holiday benefit would
have been [reduced] . . . proposal number 8(a) . . . would
have changed the formula for figuring the vacation benefit
for part-time employees and would have reduced the bene-
fit in most cases ... proposal number 9 would .... in lieu of
the present section in the contract which [contains . . . a
certain specific tuition assistance program .... [have] re-
placed that article with an open-ended article whereby ...
the unionized employees would have to accept whatever the
Hospital designated to be the tuition assistance program.
and there was no guarantee here that even the same level
would be maintained . . .proposal number 10 would have
changed the policy for paying health insurance premiums
and life insurance premiums during certain leaves of ab-
sence so as to reduce the number of months that an em-
ployee on leave would be eligible to have the Hospital pay
its share of the premium": and "proposal number 11 would
have substantially restricted the access by Union represen-
tatives to the Hospital premises."'
Shea further testified that as of August 10, "none" of the
Union's "economic proposals" had "been addressed" by
the Hospital. Shea added that,
of the noneconomic proposals, on August 10, the Hos-
pital gave us a reply very brief-on each item.
Shea also noted, inter alia, that the Union's proposed con-
tract (G.C. Exh. 4) contained "a proposal concerning an
elimination of the scope of the agreement clause, eliminat-
2 Hospital Associate Director Topham asserted, inter auia, that Hospital
proposals 4 (pyramiding), 5 (hospital work), and 6 (workday) were "to clarify
contract language." Topham also claimed that proposal 10 (health and life
insurance benefits during leave of absence) was "to incorporate in contract
language and for clarity sake."
X50
SOUiTr SHORE HOSPITAL
ing the zipper clause." The lospital's proposals (G.C. Exh.
6) do not refer to this item and, according to Shea. "we
asked about it." The Hospital "didn't want to see any
change in the contract language." l.ikewise, the Unionll's
proposed contract contained a proposal that "asked that
the employee's personnel file he open to his or her inspec-
tion .... " The Hospital's proposals made no mention of
this item; this subject also mentioned at this session: and
"the Hospital saw no such need for such availabilit."
There was also, according to Shea, a "brief discussion" on
"compensatory day for holiday time worked."'
The Union, according to Shea. had requested "a re-
sponse" to its proposals at the August 10 session - we re-
quested a counterproposal from the Hospital." ospital As-
sociate Director Topham testified:
Q. Now, it's been brought out Mr. Topham that the
General Counsel's Exhibit Number 6, Hlospital's pro-
posal on August 10, did not include a wage and benefit
proposal. Could you tell us in your words why the
Hospital didn't include a wage and benefit proposal in
its August 10 proposal?
A. The Hospital felt that the proposals that were
submitted initially were important proposals and they
wanted to get resolution of those proposals prior to the
introduction of the wage proposal.
Q. Why?
A. They felt that to do otherwise would, number
one, change the accepted process that had been fol-
lowed each year. And, secondly. once a wage proposal
is on the table it would have a negative effect of trying
to orient the discussion toward the resolution of out-
standing proposals.
And, according to Shea, Hospital attorney and spokesman
Brown stated "that noneconomic matters would he dis-
cussed, as usual, before economic matters were .... "Shea.
as he testified, responded that,
in general, that was acceptable to the Union. However.
I [Shea] wanted to note that it may be possible - it may
be necessary to mix economic and non-economic
items toward the end of negotiations.
Brown "did not disagree" with Shea's statement. And, as
Shea further explained,
there was an agreement reached to that effect in princi-
ple, but the Union added the proviso that . . . it may
well become necessary to mix noneconomic items and
economic items before the resolution of the noneco-
nomic items.'
She explained. "The Hospital, in giving us its .. written proposals on
August 10]. had included agreement on two Union issues, . differential in
vacation pay and scheduling of vacation time. That. there was virtually no
discussion of. It was simply in the written papers they gave us and we noled
it when we looked at it. And it . . seemed in response to what we'd asked
... " Shea further explained that the Union's proposals on these subjects. as
accepted by the Hospital, essentially restated "existing pr;actice "
'Shea acknowledged that." . going hb our original iagreement to ge
noneconomic Items tiul of the ay. we did nol make another request or the
hospital to submit an economic offer until the September 16 meeting. hen
we did make such a request
3. August 17. 1977
Union Representative Shca recalled that at the August
17 session" the Hospital responded on the L nion'> noiiccso-
nomic proposals." Hospital associate director Tophain
summarized the hospital's response in part as iollows. he
Hospital responded to "the Union proposals concerning no-
tification to the steward'' b stating "no''; Ihc hospital re-
sponded to the Union proposal concerning "at age in-
crease effective October I. 1977" b stating "that it was
economic and . . . set it aside"; the hospital responded to
the UInion's proposal "as to increasing the rate after promo-
tion" by stating "that it was economic and ... set it aside":
the Hospital responded to the Union's proposal "to substi-
tute some minimum pay and shift differential and weekend
differentials" by stating "that it was economic and ... set it
aside": the Hospital responded to the [Union's proposal on
"an increase in the call to work proposal" by stating that
"the Hospital had a proposal on that": the Hospital re-
sponded to the Union's proposal "to change the relief and
higher classification" by stating "no"; the hospital re-
sponded to the Union's proposal "to change . . . the oncall
period pay" by stating that "it was economic and .. . set it
aside": the Hospital responded to the ilnion's proposal to
make a change "relating to the meal period" bh stating
"no"; the Hospital responded to the Union's proposal to
make "additions to the holiday provisions hb adding one
holiday" by stating "that it was economic and ... set it
aside"; the Hospital responded to the Union's proposal on
making "various changes to the vacation article" b stating
"that it was economic and ... set it aside'' the Hospital
responded to the Union's proposal on "sufficient coverage
for the vacationing employees" by in effect "saving no": the
Hospital responded to the Union's proposal pertailning to
"changes to the sick leave provisions by stating that the
Hospital" was studying them; the Hospital responded to
the Union's proposal on insurance by stating "that they
were economic and set them aside": the Hospitl responded
to the Union's proposal pertaining to employee personnel
files by stating "no"; the Hospital responded to the L nion's
proposal "concerning the event of [employeel suspension or
discharge" by stating "no": the Hospital responded to the
Union's proposal of a "language addition concerning the
Union representative article" by stating that the Hospital
"had a proposal on this issue": and the Hlospital responded
to the LUnion's proposal that "article 19. scope of the agree-
ment. be eliminated" by stating "no.'" Shea claimed that
the Hospital had presented no counterproposals to the
Union's initial proposals at this session.'
'As noted abose. at the August Il) session. the ttoslpial and the t nlioi
had agreed upon the Union's proposals pertaining to scheduling of lvaction,
and inclusion of wage dflerentlals n acatiln pa As testified h Shea.
these proposals essentially restated exlsting practice Further. although Top-
ham claimed that the Hospital also "had a proposal- on the I 'nmin's pro-
posal pertaining to call to work.'" counsel for (eneral ( unsel notcs hat
the Union's proposal and the Compaln,' proposal pertain "to enirclsel tiflcr
ent issues" ('f. C( ('. xh 6, p I and G C It-h 4. p 101 I Ike, i. the
Hospital's proposal and the I i..n propos.al pertaining ., "1 mon rprc-
seniatlee- alddress dlfferen isues ( (;( i h t, p 1 A.i, t( t h 4. p
44)
nShea ack noi lc. edged IhaI ,it Is,, , ( , t Ic, l , ,C ii .i . 1 11. 1 ,or..'
propos.al to Il.lkec .i h.igc in t /il, t t li c ' I he I r.,il ">Akci lb
its propsal *ld tlt i l- I .. ."it nt ~ m A kh II..t . x k h.ll t m m wilg l Ic tl. I ,,, I, t
tl ,.tlZ1t J;, 1
851
DECIt)SIONS OF NATIONAL LABOR RELATIONS BOARD
4. August 31. 1977
Hospital Associate Director Topham testified that after
the August 17 session, "the Union. aside from its request
for wage and benefit counterproposals." did not "request
that its proposals ... be discussed instead of the Hospital's
proposals." Topham also explained that from August 17,
1977, to March 22, 1978, the negotiations "focus[edl pri-
marily" on the Hospital's proposals. Union Representative
Shea testified that by this fourth session, the parties
"reached an agreement on the Hospital's proposal concern-
ing pyramiding . . . ."
In addition. Shea recalled:
Mr. Brown told us a number of times by August 31. to
the best of my recollection, that [he] didn't see any
reason [why] technical employees should be enjoying
any better benefits than other employees at the Hospi-
tal.
Shea did not "agree with the Hospital's stated policy of
equivalency between Union and nonunion employees."
Shea asserted that he was "here to negotiate the contract
for the bargaining unit people only .... "As Shea further
explained:
There was some discussion of the Hospital's position,
that they wanted to make sure that the technical bar-
gaining unit . . . didn't have any more benefits than
other people at the Hospital.
* * * * *
Our objection was that it was not a relevant issue since
we did not represent the other employees ....
Shea added: ". .. I also told them that we did not come to
the bargaining table to give up benefits just because some-
body else didn't have them. We were willing to negotiate on
our benefits and our whole package, but we were not going
to do it on the basis of what other people did or didn't
have."
Further, Shea testified that the Union "proposed" that
"it would arbitrate" the Company's proposal "concerning
tuition assistance" or "it would negotiate a specific change
in the tuition assistance program should the Hospital wish
to propose one." According to Shea,
The Hospital, through Mr. Brown as spokesperson,
had at the August 31 session said, as part of a discus-
sion about tuition assistance, that the Union's refusal
to agree to the Hospital's proposal relative to the tu-
ition assistance could well mean that we'd [have] a
contract in December.
Shea noted, inter alia, that "during the meetings that tran-
spired in August," the "parties did discuss economic items"
such as, for example, "overtime," "call to work," the
Union's "proposal on the compensatory day for a holiday,"
the "work day proposal," "holiday prorata for part-timers,"
language." There was also "some discussion of the Union's compensatory
day off proposal" at this session.
'Topham noted, however, that the union proposal on a "compensatory
day was discussed several times ... and ultimately was resolved" and "there
was also discussion dealing with notification of the Union in the event there
was discipline to a unit employee .. ."
"vacation pay for part-timers." "leave of absence," and "tu-
ition assistance." And, Respondent Exhibit 5 is the "back
up economic] information" which was "provided to the
Hospital" by the Union on or about this time.
5. September 16, 1977
Union Representative Shea testified that at this fifth ses-
sion on September 16, "we did make ... a request" for "the
Hospital to submit an economic offer" or counterpro-
posal "we asked for a whole economic offer, a counterpro-
posal to our proposals." Hospital Associate Director Top-
ham acknowledged that "the Union had requested
economic counterproposals from time to time. . ."-the
Union "had requested on several occasions throughout the
fall that the Hospital present a total wage and economic
proposal .... " And, as union representative Shea recalled,
Mr. Brown responded that the Hospital would not
make such an offer at this time, that the Union had
agreed, he contended, in an August 10 bargaining ses-
sion, that noneconomic items would be cleared up be-
fore economic items. I [Sheal contested that fact. He
IBrown] protested that we made such an agreement.
He also said that it was simply too early for such an
offer to be made by the Hospital.
Mr. Brown said, at about the same [time] at this bar-
gaining session, that the Hospital would make its offer
once the issues that were currently under discussion
were resolved.
The items "under discussion" were, according to Shea, the
"majority of the Hospital's proposals to [the Union] which
we [the Union] had been discussing in the past several bar-
gaining sessions." (See G.C. Exh. 6.)
Further, Shea explained that the "reason" why the
Union had requested "an entire economic proposal" from
the Hospital "at that time" was,
because in our opinion negotiations had bogged down
with the Hospital insisting that . . . the Union give up
certain existing benefits. And, we felt that it was not
possible for us to consider the proposals any further
that the Hospital was making without seeing their
whole economic offer.
Nevertheless, according to Shea, the Union continued "dis-
cussing" the Hospital's proposals and possible "compro-
mises." The Union had offered "compromises" or "counter-
proposals as to the reductions in benefits ... requested by
the Hospital."8
8 Shea explained, inter alia. that "on Hospitalproposal 7 we had offered to
alter the base period that was used to compute the proration for the holiday
benefit . . And. we said to the Hospital that we would be willing to
consider other proposals. be it three months, six months or whatever"; that
"on Hospitalproposal number 9 concerning tuition assistance, the Union pro-
posed . . . that it would arbitrate this issue or that it would negotiate a
specific change ...": that "on Hospitalproposal number 3 concerning call to
work, the Union had indicated several areas in which it might be able to
compromise .. ": and that "agreement" was reached on Hospital proposal
number 4 and Hospital proposal number 5 "pyramiding" and "hospital
work"). Counsel for Respondent notes in his brief (pp. 14 16) that vanous
Hospital proposals were discussed at this session Shea recalled that possibly
one or two of the Union's proposals ere also discussed at this session.
852
SOUTH SHORE HOSPITAL
Shea recalled the following exchange between the parties
at this session:
At the close of the bargaining session, Mr. Brown on
behalf of the Hospital said that they had contacted a
mediator during the break in negotiations a few min-
utes previous, and that we would be hearing from the
mediator. I [Shea] objected strongly to this. I said that
I thought it was irresponsible behavior on the part of
the Hospital's bargaining committee, and that the re-
sponsible and appropriate behavior would be for the
Hospital to make us a whole economic offer ....
Brown refused to make such an economic offer.
6. September 21, 1977
The sixth session was held on September 21 at the offices
of the Federal Mediation And Conciliation Service. The
parties "reviewed the status of the negotiations." Hospital
Associate Director Topham. after reviewing his notes, ac-
knowledged that Union Representative Shea had stated at
this session: "We have had no economic proposals." Hospi-
tal Spokesman Brown responded, according to Topham's
notes:
Have to have direction before costing, in order to bud-
get funds. Must have framework of contract first. Em-
ployer can't talk wages until we know other costs.
Following this session, on September 22, the Union sent to
the Hospital a 10-day notice of intention to picket and leaf-
let the Hospital commencing October 4, citing the "Hospi-
tal's intransigence in negotiations .... " (See R. Exh. 6.)
7. September 27, 1977
Union Representative Shea testified that at the Septem-
ber 27 session, "both the Union and the Hospital proposed
various trades." The Union "proposed a form of prorated
holiday pay for part timers based on average hours in ex-
change for its proposal on the holiday compensatory day."
Shea explained that Respondent Exhibit 10 is the Union's
proposal presented to the Hospital pertaining to "compen-
satory day off' and "workday"; the Hospital "made coun-
terproposals on the holiday compensatory day"; and "that
counterproposal was tied in... to the Hospital proposal on
prorating holiday and vacation pay for part timers-part of
the trade that was proposed." Shea also recalled that he
"took a position ... that the present proposals taken by the
Hospital [proposals number 2 and 3 pertaining to "over-
time" and "call to work"] were unacceptable."
8. September 28, 1977
Union Representative Shea testified that on or about this
session on September 28 the hospital withdrew its "pro-
posal number 12 concerning schedules." (See G.C. Exh. 6.)
The Hospital and the Union "continued to discuss the items
such as the holiday compensation day ... , [the] leave of
absence provision ... [and] we discussed the prorata pay of
holiday and vacation benefits for part-time employees .... "
Shea explained:
We were discussing them and ... both sides were mak-
ing proposals and trying to make an agreement on
them.
The contract between the parties was to expire on Sep-
tember 30, 1977. Shea acknowledged that. "as the meeting
of September 28 drew to a close, it was obvious to both
sides ... that the parties had not reached a new contract",
and "the Hospital was willing to extend the contract." Hos-
pital Associate Director Topham recalled:
. . . The Hospital wanted to extend the contract for
about two weeks. And the Union stated it did not want
to extend past October 3rd.
The contract expired on September 30, 1977. And, as
stipulated by the parties,
effective September 26, 1977, [the Hospital] granted to
all nonunit employees a general wage increase ranging
in amount from approximately 3 percent to 8.3 per-
cent, which was the same general wage increase offered
by [the Hospitall to the Union for unit employees on
March 22. 1978.
(See G.C. Exh. 21.) And, in addition, the Hospital "ab-
sorbed" an "increase in premium costs" to be charged all
nonunit employees by Blue Cross-Blue Shield, effective Oc-
tober 1, 1977. (See G.C. Exh. 16.)
9. October 3, 1977
At this session on October 3 Union Representative Shea.
as he testified, repeated his "request for a wage economic
counterproposal." Shea recalled:
On October 3 1 again asked the Hospital to make us a
whole economic offer, saying that we weren't getting
anywhere without such an offer on the table and that
the Union could not consider any further compromises
on the Hospital's demands to us.... the demands that
they first gave us on August 10 that the Union give up
certain benefits.
Hospital spokesman Brown responded that "there was an
agreement reached on August 10 that we were going to
discuss noneconomics first and he intended to clear up the
noneconomic issues before getting onto economic issues."
Hospital Representative Topham, after reviewing his bar-
gaining notes of this session, acknowledged that Shea had
stated,
We [the Union] never agreed to that. After discus-
sion we qualified decision on that issues.9
The Hospital also "notified" the Union that,
since the contract had expired they . . . would not be
assuming the additional cost of the increased premi-
ums for Blue Cross-Blue Shield for [the] bargaining
unit.
Hospital representative Brown announced at this se 1
that "because of some clerical error ... the members of .
'Shea recalled that about this time, ". .. I had proposed . .. that th,
Union would drop all of its noneconomic proposals in return for the Hospi-
tal dropping ... most of the proposals in their August 10 document." Brown
refused.
853
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ithe] bargaining unit had been mailed a notice saying that
the increased cost of premiums would be assumed by the
Hospital .... " (See G.C. Exh. 16.) The Hospital later sent
notices to the "bargaining unit employees" stating (G.C.
Exhs. 17 and 18):
The letter which you received recently regarding an
increase in the Hospital's contribution for family Blue
Cross/Blue Shield coverage was only meant for em-
ployees not represented by the Union. The Hospital is
still negotiating with the Union as to your wages, hours
and benefits which include Blue Cross/Blue Shield
contributions; therefore, the letter you received should
be ignored.
Shea noted that the Union had "requested that the Hospital
continue to pay the same percentage amount . . ." for the
unit employees and the Hospital had refused. (Cf. G.C.
Exh. 18.)' °
10. October 4, 1977
At this session on October 4 the parties discussed "tuition
assistance and benefits during leave of absence." Union
representative Shea, as he testified, "said that we would be
willing to consider these as part of a money offer." Hospital
representative Brown "responded that he didn't want to
make a money offer then, but we should take these issues
and put them aside and look at them some point later and
see if we could come back to them." The Hospital presented
"a new proposal on work day." (See G.C. Exh. 9.) The
Union, by this session, "had made a counterproposal to the
Hospital about workday, indicating that [iti would agree to
some definition of the workday." Further, by the end of this
session, the Hospital and the Union had agreed tentatively
"on the compensatory day for holiday proposal." And, also
by the end of this session, "the Hospital had dropped one of
its economic items, relating to prorata vacation pay for
part-timers."
II. October 13, 1977
At this October 13 session the Hospital presented a re-
vised "call to work" proposal. (See G.C. Exh. 11.) Union
representative Shea recalled that the Hospital negotiator
said "that the procedures used and benefits received by the
unit employees should be the same as those provided [for]
and received by nonunit people." The "parties discussed
how this procedure could affect employees' income." There
was also a discussion pertaining to "staffing in the bargain-
ing unit" and the Hospital's "leave of absence proposal.""
In addition, as counsel for the Hospital notes in his brief
(pp. 20-21), by October 13 the Union had learned of the
wage increases recently granted to nonunit employees. Shea
was asked at the hearing, "was this an amount that was
acceptable to the Union?" Shea responded "It wasn't-it
hadn't been offered to us." Further, the Union. as Shea
acknowledged, "did not request the hospital at this October
I°On the following day, October 4, the Union commenced picketing and
passing out leaflets at the Hospital. See, e.g., Resp. Exhs. 8 and 9.
" The Hospital's "position" was that its proposal on leave of absence "was
merely a restatement of the current policy."
13 meeting to put the same percentage increase into effect
for the Union or unit employees .... "2
12. October 20, 1977
At the October 20 session the "Hospital presented . . .
still another proposal on the call to work issue .... " As
union representative Shea recalled,
I [Shea] . . . said that we'd be willing to discuss [a
reduction in their call to work proposal] in the context
of an overall economic offer from the Hospital, in re-
sponse to our economic proposals.
And, Hospital Representative Topham, after reviewing his
notes for this session (G.C. Exh. 26). acknowledged that
Hospital Spokesman Brown had said:
Am not willing and will not be willing to negotiate
economics betfore language is put to bed .... 3
13. November 2, 1977
Prior to the session on November 2, the Union had dis-
tributed a leaflet at the hospital asserting that "Manage-
ment refuses to make us an offer" and is "insisting that we
agree to give up a number of benefits which we won in
earlier contracts .... " The leaflet refers to, inter alia, "a
strike" or "drastic action" in the absence of "some money
offer from the Hospital soon .... " (R. Exh. 21.) Thereafter,
at the November 2 session, the Hospital, according to union
representative Shea, presented "a revision" of its initial pro-
posals. (See G.C. Exh. 13.)
Shea summarized the Hospital's November 2 "revision,"
in part as follows:
It covered the Hospital's-a revision of the Hospi-
tal's original proposal to us relative to probation, a
revision of the Hospital's original proposal to us rela-
tive to payment of premium pay when an employee
was called to work. It incorporated the agreements we
had reached on the example of pyramiding and the
agreements in substance that we had reached on the
prohibition on work other than that assigned by super-
visors or a department head. It included the Hospital's
proposal on the definition of the workday. It included
a version of the Union's proposal on a compensatory
day off when holidays were worked. It incorporated
the agreement already reached on the proposals to de-
fine the year for taking vacation, and to write into the
contract the inclusion of shift and weekend differential
in vacation pay. And, it proposed the Hospital's pro-
posal on tuition assistance, and the Hospital's proposal
on unpaid leaves of absence, and the Hospital's pro-
posal on Union representatives.'
In addition, Shea testified that when the Hospital pre-
sented its November 2 proposal (G.C. Exh. 13), the Hospi-
12 Shea noted that: "I believe it was the April 3, 1978, session, when the
Union said it would accept the wage proposal that the Hospital had offered
with a difference on the effective date"-the "difference was the item of
retroactivity."
3 Topham asserted that "if [he] were to translate Ihis] notes .. ," he
"would replace wage proposals and substitute it for the word economic."
1' Shea acknowledged that this proposal had "dropped . .. some of the
items which the Union had refused to agree to . .
854
SOUTH SHORE HOSPITAL
tal did not state that it was "at the same time rejecting the
rest of the Union's proposals-economic and non-eco-
nomic." However, as counsel for General Counsel notes in
his brief (p. I 1), "this November 21 proposal contained no
counterproposals to the Union's [earlier] proposals on
wages and benefits." Shea recalled that at this session Hos-
pital representative Brown commented, "the longer nego-
tiations went on without agreement then the more likely it
was that the Hospital would make proposals to change
benefits in the contract"-. . . there would be more propos-
als to reduce benefits, more than was already on the bar-
gaining table."
14. November 3. 1977
Union Representative Shea testified that on or by this
November 3 session "we had worked out a reasonable com-
promise" on the Union's compensatory day for holiday
worked proposal.
but [the proposals] were offered by each side . . . as
part of the whole trade involving other items and since
the whole trade didn't fly, they were sort of held as
basically agreed upon ....
Shea acknowledged that "there was some progress, some
agreement, as to probation" and "workday", noting that
"there were several trades offered ... through the media-
tor." On "workday", the Hospital "finally agreed to" the
Union's "request that any time they worked over eight they
would be paid time and a half."
15. November 15, 1977
Union Representative Shea testified that at this Novem-
ber 15 session the mediator "delineated" the "open issues,"
"aside from wages and benefits", as (1) tuition assistance,
(2) leave of absence, (3) call to work, and (4) union repre-
sentative. Shea would also include as "open issues" the
"compensatory day" and "probation" items "because pre-
viously the indication that these could be solved [was] in the
context of a trade" and consequently "they were still on the
table but more settable [sic] than the other four."
The Union's "position" as to the Hospital's "leave of ab-
sence proposal" was "that while we [the Union) could ac-
cept some of what the Hospital was asking in its proposal
... we could not accept the entire position ... "; "... we
[the Union] wanted to maintain the payments of health in-
surance premiums ... ; we would concede on the life [insur-
ance] .... " The Union's "position" on the Hospital's pro-
posal pertaining to the "Union representative" was:
The Union had offered to go some of the way on that
issue, that is to restrict in some fashion the Union rep-
resentative's access to the Hospital, restrict it com-
pared to the old contract position.
The Union, however, "could not agree to the Hospital's
proposal . . . to restrict access to [a] Union representative
only to situations where a scheduled meeting with an ad-
ministrative agent had been made." Under the prior agree-
ment, according to Shea, the union representative "had ac-
cess to meet with members of the bargaining unit and the
stewards in the cafeteria."
Further, the Union's "position" on the "call to work pro-
posal" was,
we [the Union] would consider dropping the provisions
... in the existing contract language that called for the
payment of double time when an employee was called
to work ... dependent on the Hospital's wage offer and
... benefit offer .... [We] would consider dropping the
double time if there were sufficient wage and benefit
offers from the Hospital.''
The Union, as Shea explained, "was still waiting a counter-
proposal from the Hospital on its wage and benefit propos-
als."
16. November 16, 1977
Union Representative Shea testified that no "agree-
ments" were "reached" at this session: the "Hospital was
going on and continuing to refuse to make an economic
offer"; and the mediator suspended negotiations at the end
of the day. Hospital Associate Director Topham, after re-
viewing his notes for this session, acknowledged that Hospi-
tal spokesman Brown stated at this session: "Very serious
thing we're looking down the barrel at. Can't discuss eco-
nomics without clearing up other items." As noted. the
Union filed an unfair labor practice charge on November
28, 1977, and an unfair labor practice complaint issued on
January 5, 1978.'6
17. February 1, 1978
Union representative Shea testified that negotiations re-
sumed on February I "after we had served a 0-day [strike]
notice on the Hospital" (R. Exh. 29): the "mediator called
us together"; the "Union requested that the Hospital make
us a whole economic offer"; and
Mr. Brown replied that he wanted-he would prefer if
we would try to resolve some of the issues before us.
The Hospital made no counterproposal on wages or eco-
nomics. The Hospital, however, withdrew its proposal on
"tuition assistance." The Hospital would therefore "keep
the tuition assistance provision as it had in the prior con-
tract." The parties also discussed. inter a/ia, "call to
work."'7
18. March 22. 1978
Union Representative Shea testified that the parties next
met on March 22. The Hospital presented a "document"
(G.C. Exh. 14) which, in effect, "proposed to the Union the
' The Union also "was willing to accept a situation where we could
change the hours of notice that would trigger payment of time-and-a-half."
'' Negotiations broke off at this point. The Union continued to leaflet the
Hospital. See R. Exh. 26. The Union did not request a resumption in nego-
tiations during this period. Shea acknowledged "that plans were made to
conduct a work stoppage at the Hospital." See R. Exh. 27 and 28.
i? The Union notified the Hospital on February 3 that the one-day work
stoppage scheduled for February 4 was changed to February 6. See R. Exhs.
31 and 32. Also see R. Exh. 37. Members of the unit struck on this date See
R. Exh. 33.
855
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
same wage and economic benefits that it had granted to the
nonunit employees ... " some six months earlier. This was,
as Shea explained, "the first whole economic proposal ... in
response to the Union's request for an economic offer."
There was "no mention" in the Hospital's proposal "of
some of the proposals that had been put forth by the
Union." The Hospital
made it clear to the Union . . . that those items not
mentioned in G.C. Exh. 14 had been rejected by the
Hospital.
(Cf. G.C. Exh. 4 (Union proposal) and G.C. Exh. 14 (Hos-
pital revised proposal)).
The Hospital's proposals pertaining to wages and insur-
ance premiums (G.C. Exh. 14) were to be effective follow-
ing ratification of a contract. Hospital representative Top-
ham was asked at the hearing, "did the Hospital give any
reasons for not offering wage retroactivity?" Topham re-
sponded: "Yes .... First, the Union had not agreed to
extend the [prior] contract .... [That] leads to an adminis-
trative dilemma when there's no document of the contract
available for the Management to utilize. Secondly, there
was no request for retroactivity. And, thirdly, we felt that it
would have an adverse effect on future negotiations .... [It]
was our feeling at the time that to grant retroactivity would
not motivate the Union in future years to negotiate a con-
tract on a timely basis."
Shea recalled that hospital spokesman Brown stated at
this session that "we were facing potentially a very long
period of litigation"-referring to the pending unfair labor
practice charges and "another case at the Hospital";"s that
"he [Brown] had thought it was best that all other items got
cleared up before any wage offer was made but the Hospital
had reconsidered its position because it was so concerned
that employees were suffering because of this situation";
and that
one of the bases of making the proposal was that the
. . .unit [employees] would be receiving through it ap-
proximately the same increase that non-Union em-
ployees had received last October I.
Further, Brown made clear "that it was not a question of
the Hospital's inability to [pay] .... He [Brown] said he was
not raising inability to pay" as a reason for not granting
retroactivity. Brown "indicated that the Hospital had no
intention of including retroactivity in the contract."
Shea stated to Brown "that the Union certainly had no
intention of signing a contract that would leave the mem-
bers our Union . . . getting the same raise as everybody else
in the Hospital, only six months late." Shea recalled that
"retroactivity" had been discussed "in the later fall negoti-
ating sessions, or at least one of them" and "in the previous
negotiating meeting on February I .... " During those
earlier sessions, Shea had stated: "when there was an offer"
or "if and when there was an offer from the Hospital on
wages and benefits, it certainly better or should be retroac-
tive." Shea finally apprised the Hospital on March 22 that
15 See South Shore Hospital, 229 NLRB 363 (1977), enfd in part, 97 LRRM
3004 (Ist Cir. 1978). The court sustained the Board's finding that the hospital
had discharged an employee because of her "open and continuing Union
organizing activities."
"we wish to consider it [the Hospital's proposal] among the
membership before giving a full response."'9
19. March 30, 1978
Union Representative Shea testified that at this March 30
meeting the Union "made a full counterproposal" to the
"Hospital's proposal" of March 22. The Union proposed an
across-the-board wage increase effective October 1., 1977, in
the amount of 8-1/2 percent; a shift differential and adjust-
ment in the minimum to maximum range in pay scale; the
Hospital should pick up an increased amount of the family
health insurance premium and dental insurance should be
included in an employee paid plan; vacations should be
increased; minimum time for payment of relief and higher
classification should be increased; and the Union's "last po-
sition" on leave of absence, call to work, and union repre-
sentative access should be accepted. The Union "would
forgo [its] other [prior] proposals"--the "rest should be
dropped." Shea made clear that "we were not about to set-
tle the contract without retroactivity .... "20
According to Shea, Hospital spokesman Brown re-
sponded by expressing "his disappointment in the Union
proposal" and asking "if we [the Union] honestly expected
that the Hospital ever intended to give this bargaining unit
more money than the rest of the house received .... "
Brown referred to, inter alia, "restrictions the Hospital was
under due to the system of setting Hospital rates in the
State ... and how that would effectively prohibit them from
. . . giving raises or benefit increases . . . to any greater
extent than they had budgeted for last fall .... " However,
Brown also stated that the Hospital "had budgeted last fall
. . a wage increase and a benefit increase as they had
offered it to us [the Union] and as had been given to the rest
of the house." And, according to Hospital representative
Topham, the hospital trustees had approved its budget
about September 1977 which then included increases for
both unit and non-unit employees-these budgeted in-
creases would have, in effect, been authorized effective at
the beginning of the fiscal year in October 1977. subject to
bargaining insofar as they pertained to the unit employees.
Hospital representative Topham acknowledged, "the bud-
get that had been authorized by the board of trustees was
also ... sufficient to cover an equivalent increase, had the
Hospital chosen to grant it, to the unit employees as of
October 1, 1977 .... "
Shea, as he further testified, accused the Hospital of"not
offering retroactivity" as "punishment for people being in
the Union" because the "money" was "budgeted" and there
was no "question of inability to pay." Brown responded
that "it was not a punitive position." Further, as Shea re-
called,
we had a discussion on the question of retroactivity.
He [Brown] said that it was the Union's decision last
fall not to extend the contract. And that was one rea-
'9 At this meeting, Shea discussed the subjects of unpaid leaves of absence,
premium pay involving unscheduled calls to work and Union representative
access. Both parties "offered proposals" and "compromises on some of the
issues." However, no agreements were reached on these items.
z Shea, however, recalled that during the ensuing negotiations he had
offered a wage increase effective "later than October , 1977." See infra.
856
SOUTH SHORE HOSPITAL
son why there was not a retroactive offer on the table.
He also said that, because of a number of things that
had gone on the length of bargaining. he specified.
and other things that had gone on outside of the bar-
gaining room--that there was no retroactive offer
being made by the Hospital.
There was discussion and both parties "stood" on their last
offers. Another meeting was scheduled for April 3.
20. April 3, 1978
At this session the parties essentially reviewed and re-
stated their positions. Union Representative Shea recalled,
inter alia, that Hospital Spokesman Brown stated:
it was the Union committee's decision not to extend
the contract last fall, when the idea was broached by
the Hospital; that the Union could very well have got-
ten the same offer last fall if they simply had been
agreeable to the proposals which the Hospital had on
the table; and that given some of the things that had
gone on-other things that had gone on it addition to
the length of bargaining-the Hospital was not about
to offer retroactivity in the position it found itself at
this moment.
Shea later "proposed" at this meeting that the Union
"would accept the Hospital's wage and benefit offer . . .
effective October 1, 1977, or alternatively, if the Hospital
did not want to pay the money that way, that it would
accept an offer of double the Hospital's proposal as of May
I .... And, then, we proposed a second year of the contract
with an 8-1/2 percent increase as of October 1, 1978, plus
the benefit changes that we had previously mentioned in
our last offer .... effective October 1, 1978 instead of Octo-
ber 1, 1977." Brown indicated that the Hospital "had no
intention of including retroactivity in the contract." Shea
asserted that he hoped the Union's proposal "might move
the negotiations out of the almost deadlock that they were
in, that the offer had obviously failed .... " Shea wanted to
discuss the "situation" with the membership."
21. April 18, 1978
The parties met again on April 18. Prior positions were
restated. Brown was not present. Sibley Reppert, an attor-
ney associated with counsel for the hospital, was present.
Shea recalled that at this session,
I [Shea] asked if there was any movement in the Hospi-
tal's position. Mr. Reppert said no. I said I wanted to
make sure that I understand exactly the Hospital's po-
sition on retroactivity. So, I asked him why the Hospi-
tal was not making an offer on retroactivity. Mr. Rep-
pert said that because of the Union's refusal to extend
the contract and things that had gone on since the con-
tract had expired-but, he really didn't want to com-
21 Hospital representative Topham's notes for this session attribute to hos-
pital spokesman Brown the following comment:
Reviewed the history of relationship, strke notice, changing. etc. To sa
now we're being punitive is a little one sided.
ment on what he said. He was just here to see what
could happen next."
The parties "agreed that we were at an impasse over wages
and benefits and Mr. Reppert announced that effective
[April 24] that the Hospital would be implementing its last
wage and benefit offer." There were no further negotiations.
I credit the testimony of Union Representative Shea as
detailed above. His testimony is substantiated in part by the
testimony of Hospital Representative Topham. b the testi-
mony of Union Representative William Perreault, and byv
undisputed documentary evidence of record. Shea testified
at length as to the 21 bargaining sessions and related mat-
ters. His testimony withstood extended cross-examination.
And, relying upon demeanor. he impressed me as a reliable.
trustworthy, and credible witness. On the other hand, Hos-
pital representative Topham gave testimony on cross-ex-
amination which at times was incomplete. unclear, and eva-
sive. Insofar as Topham's testimony differs with the
testimony of Shea as recited and quoted above. I am per-
suaded here, on this entire record. that Shea's detailed rec-
ollection of the sequence of events is more complete. reli-
able, and trustworthy.21
Discussion
General Counsel contends that Respondent hospital vio-
lated Section 8(a)(5) of the National Labor Relations Act
by refusing to bargain in good faith with the Union with
respect to wages and other economic benefits from about
September 15. 1977 to about March 22, 1978. General
Counsel asserts that "where negotiations stall, as they did
here, because the parties cannot reach agreement on certain
noneconomic matters and on certain proposals to reduce
certain existing benefits or practices, the only way to avoid
impasse may be through exploration of the Employer's po-
sition on wages and economic matters" and,
if in these circumstances the Union, as it did here, re-
peatedly asks the Employer to turn to economic issues.
but the Employer. as it did here, repeatedly refuses to
talk about them until all the non-economic issues and
the Employer's proposals have been settled favorable
to the Employer ....
the Employer has not fulfilled its statutory bargaining obli-
gation. Further, General Counsel asserts that the Employ-
er's conduct from March 22, 1978, during the last four bar-
gaining sessions, "was a continuation of ... its earlier
refusal to bargain in good faith .... "
Respondent argues, inter alia, that General Counsel has
failed to establish by a preponderance of the evidence that
the Hospital violated Section 8(a)(5) of the Act. Respon-
dent contends that the Hospital "never insisted upon agree-
ment by the Union to Hospital proposals": that "by seeking
to postpone discussion of wages and benefits until other
issues had been resolved. the Hospital negotiated in good
faith in accordance with the past practices of the parties
22 Reppert did not testify.
23 Counsel has filed a "stipulation to amended record. This document
proposes certain corrections in the record. The proposed corrections are
granted. Counsel has also filed "a joint motion to reopen the record to re-
ceive an additional exhibit.'" G.( Exh I(p) I) Ihis motion is also granled
857
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and accepted negotiating techniques": that "the totality of
the circumstances surrounding the negotiations manifests
the Hospital's good faith"; that "both parties were engaged
in hard bargaining and were jockeying for position . . .":
and that the Hospital did not violate Section 8(a)(5) "by
engaging in such hard bargaining."
Section 8(a)(5) of the Act makes it an unfair labor prac-
tice for an employer "to refuse to bargain collectively with
the representative of his employees .... " Section 8(d) pro-
vides that "to bargain collectively is the performance of the
mutual obligation of the employer and the representative of'
the employees to meet at reasonable times and confer in
good faith with respect to wages, hours, and other terms
and conditions of employment .... " The pertinent legal
principles have been restated many times by the Board and
the Courts. Thus, in N.L.R.B. v. Patent Trader, Inc.. 415
F.2d 190, 197 198 (2d Cir. 1969), modified en bane. 426
F.2d 791 (2d Cir. 1970), the court restated these principles
and sustained the Board's findings, as follows:
[The] Company "entertained no sincere desire and
made no genuine effort" to conclude an agreement
with the Union. It is well-settled that the "performance
of the duty to bargain requires more than a willingness
to enter upon a sterile discussion of union-manage-
ment differences." N.L.R.B v. American National In-
surance, 343 U.S. 395, 402, 72 S.Ct. 824, 828, 96 L.Ed.
1027 (1952). And although "the obligation of the em-
ployer to bargain in good faith does not require the
yielding of positions fairly maintained," N.L.R.B. v.
Herman Sausage Co., 275 F.2d 229, 231 (5th Cir.
1960), more is required than mere "surface bargaining"
or "giving the Union a runaround while purporting to
be meeting the Union for purposes of collective bar-
gaining." N.L.R.B. v. Herman Sausage Co., supra. p.
232, quoting N.L.R.B. v. Athens Mfg. Co., 161 F.2d 8
(5th Cir. 1947).
See also N.L.R.B. v. National Shoes, Inc., 208 F.2d
688. 691 (2d Cir. 1953); N.L.R.B. v. Fitzgerald Mills
Corporation, 313 F.2d 260, 266 (2d Cir. 1963). Whether
the Company bargained in good faith normally rests
upon "a finding of motive or state of mind which can
only be inferred from circumstantial evidence,"
N.L.R.B. v. Reed & Prince Mfg. Co., 205 F.2d 131,
139-140 (Ist Cir.), cert. denied 346 U.S. 887, 74 S.Ct.
139, 98 L.Ed. 391 (1953), and "It]he previous relations
of the parties, antecedent events explaining behavior at
the bargaining table, and the course of negotiations
[which] constitute the raw facts for reaching such a
determination." Local 833, UA W-A FL-CIO, etc. v.
N.L.R.B., 112 U.S. App. D.C. 107, 300 F.2d 699, 706,
cert. denied Kohler Co. v. Local 833 etc., 370 U.S. 911,
82 S.Ct. 1258, 8 L.Ed. 2d 405 (1962).
The Court, in agreement with the Board, noted that,
"[b]y postponing or removing from the area of bar-
gaining-to the very end of negotiations most funda-
mental terms and conditions of employment (wages,
hours of work, overtime, severance pay. reporting pay.
holidays, vacations, sick leave, welfare and pensions.
etc.) [the Company] reduced the flexibility of collective
bargaining, land] narrowed the range of possible com-
promises" with the result of "... rigidly and unreason-
ably fragmenting the negotiations .... ' See I anderhihlt
Products. Inc. v. V.I..R.B, 297 F.2d 833 (2d ('ir. 1961)
(Per Curiam).
In The Adrian Daill Telegram, a Dtriision of Thompson
,Newspaper. Inc.. 214 NlRB 1103. 1110-1112 (1974), the
Board similarly found that the employer violated this statu-
tory obligation "by refusing to submit any specific eco-
nomic counterproposal to the union despite repeated re-
quests by the Union, as well as the Federal mediator. and.
in addition, by refusing to bargain with respect to an_ eco-
nomic matters until final agreement had been reached on
all noneconomic issues .... " Likewise, in Federal-Mogul
Corporation, 212 NLRB 950 (1974)., enfd. 524 F.2d 37 (6th
Cir. 1975). the Board held that the employer's "refusal to
submit or discuss or to permit any discussion o economic
proposals in the contract negotiations and [its] requirement
as a condition for any such discussion that the union agree
to accept [its] terms on certain noneconomic matters, was a
refusal to bargain in good faith .... " The Court, in agree-
ment with the Board, noted that the
union . . . had opened the negotiations by stating all of
its economic demands except wages. Nonetheless, for a
substantial time the union acquiesced in the companN's
demand to settle noneconomic issues first. In the weeks
immediately befbre the strike, however, the union
made a wage proposal and unsuccessfully sought eco-
nomic proposals from the company.
Also see, Bartlett-(Collins Compantv, 230 NLRB 144. 173
175 (1977); Rotno Paper Products Corp., 220 NLRB 519.
525 (1975), enfd. 93 I.RRM 2336 (2nd. Cir. 1976). Of
course, as the Supreme Court observed in N.L.R.B. v.
American National Insurance Co., 343 U.S. 395. 410 (1952),
".. a statutory standard such as 'good faith' can have
meaning only in the application to the particular facts of a
particular case .... "
On the credible evidence of record in this case, as de-
tailed supra. I find and conclude that Respondent Hospital
violated its statutory obligation to bargain in good faith
with the Union by its repeated refusals during the course of
some 18 bargaining sessions over an eight-month period to
submit to the Union wage or economic counterproposals or
to discuss with the Union wages or economic benefits. Re-
spondent Hospital, during this extended period, persistently
and adamantly refused to bargain in good faith with the
Union over wages and economic benefits which had been
proposed by the Union unless and until the Union agreed
to reductions in certain existing employee benefits as pro-
posed by the Hospital. Respondent Hospital. by its con-
duct, was not dealing with the Union "in a serious attempt
to resolve [their] differences and reach a common ground."
N.L.R.B. v. Insurance Agents' International Union, A FI.
CIO, 361 U.S. 477. 485, 486 (1960). Instead, as discussed
below, the Hospital was "rigidly and unreasonably frag-
menting the negotiations ... " and "giving the Union the
runaround while purporting to be meeting with the Union
for purposes of collective bargaining I.. R . v. Patent
Trader, Inc., supra.
Thus, by the first bargaining session on July 2(0. the
Union had submitted to the Hospital a full proposed con-
SOUTH SHORE HOSPITAL
tract including wages and other economic benefits as well
as noneconomic benefits. The Union, in turn. requested a
full counterproposal from the hospital. At the second ses-
sion on August 10, the hospital submitted its proposals.
However, the hospital's proposals did not contain substan-
tive provisions pertaining to wages and economic benefits
as included in the Union's submission. The hospital's pro-
posals provided in significant part for reductions in existing
employee benefits. Hospital representative Topham
"wanted to get resolution of these proposals prior to the
introduction of [its] wage proposal." The Union, at this ear-
ly bargaining session, generally agreed "to get the noneco-
nomic items out of the way ... ": however, the Union also
made clear that "it may well become necessary to mix non-
economic items and economic items before resolution of the
noneconomic items." No time limitation was established for
this procedural arrangement.
Thereafter, by the fifth session on September 16. the hos-
pital had responded to the Union's initial proposals by. for
the most part, rejecting the Union's proposals or setting
them aside as "economic." The negotiations then-focused
primarily on the hospital's proposals. The Union neverthe-
less manifested its willingness to compromise on various of
the Employer's proposals and offered counterproposals.
Some limited agreement was reached. However, as UInion
representative Shea recalled, the Union again requested "an
entire economic proposal" from the hospital by the Septem-
ber 16 session because "negotiations had bogged down with
the Hospital insisting that . . . the Union give up certain
existing benefits." The Union "felt that it was not possible
for [it] to consider the proposals that the Hospital was mak-
ing any further without seeing their whole economic offer."
The Hospital refused to make such an economic offer or
counterproposal. Nevertheless, as Shea further explained,
the Union still continued to discuss the Hospital's proposals
and possible compromises "to the reductions in benefits...
requested by the Hospital."
Subsequently, at the sixth session on September 21, the
hospital again refused to make an economic proposal to the
Union even though a federal mediator was present. About
this same time, the hospital granted to its nonunion em-
ployees a general wage increase ranging from 3 to 8.3 per-
cent and absorbed an increase in insurance premium costs
to be charged these employees. The Hospital notified the
union employees that a
letter which you received recently regarding an in-
crease in the Hospital's contribution [for the insurance]
coverage was only meant for employees not repre-
sented by the Union. The Hospital is still negotiating
with the Union as to your wages, hours and benefits
which include [the insurance] contributions....
The collective-bargaining agreement applicable to the unit
employees expired on September 30.
Thereafter, at the ninth session on October 3, the Union
"again asked the Hospital to make us a whole economic
offer ... : we weren't getting anywhere without such an
offer on the table . .; the nion could not consider an5
further compromises on the Hospital's demands .... " he
Hospital again refused. The Union proposed dropping "all
of its noneconomic proposals" in return for the Hospital
dropping "most of the proposals in their August 10 pro-
posal." he Hospital refused. Later, at the tenth session on
October 4. the Union proposed that "we would be willing
to) consider" the Hospital's proposed tuition assistance and
leave of absence items "as part ot a mone oer." FIhe Hos-
pital "didn't want to make a money offer then .
At the twelfth session on October 20, the LUnion proposed
that it would he willing to discuss a reduction in the call to
work item "in the context of an overall economic offtter from
the Hospital, in response to [the Union'sl economic propos-
als." Hospital spokesman Brown made clear that he "will
not be willing to negotiate economics before language is put
to bed .... " Later. at the thirteenth session on November 2.
Brown warned Shea:
the longer the negotiations went on without agreement.
then the more likelk it was that the Hospital would
make proposals to change benefits in the contract
There would be more proposals to reduce benefits.
more than was already on the table.
The parties broke off negotiations in November. he
Union filed unfair labor practice charges. The initial com-
plaint issued in this case and the matter was scheduled for
hearing. Meanwhile, the mediator called the parties to-
gether for their seventeenth session on February 1. The
Union again requested a "whole economic offer." The Hos-
pital again refused.
However, at the eighteenth session on March 22, the
Hospital offered to the Union the same wage and economic
benefits which it had granted to the nonunion employees
some six months earlier. See G.C. Exh. 14. This was, as
Shea noted, the "first whole economic proposal ... in re-
sponse to the Union's request f;r an economic offer." There
was no mention in this proposal of some of the proposals
which previously had been made bh the U:nion. The lospi-
till made clear that those items not mentioned in G.C. Fxh.
14 "had been rejected." In addition, the Hospital refused to
make its wage and economic proposals retroactive to Octo-
her I. 1977. Hospital spokesman Brown apprised the Union
representative that "the Hospital had no intention of in-
cluding retroactivity in the contract." Brown, at the same
time, noted that he was not claiming "inability to pay" as a
reason for not granting retroactivity. And. Hospital repre-
sentative Topham acknowledged that "the budget" which
had been approved by the trustees some seven months ear-
lier included wage and benefit increases for both unit and
nonunit employees-"the budget that had been authorized
.. was also ... sufficient to cover an equivalent increase
had the Hospital chosen to grant it to the unit employees as
of October I, 1977 . " Brown subsequently explained to
Shea. "... the Union could very well have gotten the same
offer last fall if they simply had been agreeable to the pro-
posals which the Hospital had on the table .... "
Union Representative Shea stated at the March 22 ses-
sion. and during the course of the remaining three sessions
on March 30. April 3 and 18, "that the I. nion certalinl had
no intention of signing contractl Itit a ould leace the
members of our Union . . . getting Ithe sle raises as evers-
bod' else in the Hospital only six months late." Nes crthc-
859
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
less, during these sessions, Shea also made a full counter-
proposal to the Hospital's March 22 offer. Shea proposed
an alternative to retroactivity to October 1, 1977, with in-
creased benefits. Brown, however, "had no intention of in-
cluding retroactivity in the contract" and the Union's pro-
posed alternative was unacceptable.
I find and conclude on this record that from about Sep-
tember 16, 1977, to about March 22. 1978, Respondent
Hospital refused to bargain with the Union over wages and
other economic benefits which were proposed by the Union
unless and until the Union agreed to reductions in certain
existing benefits as proposed by the Hospital. Respondent
Hospital's conduct was incompatible with its obligation to
bargain in good faith. Thereafter, commencing March 22.
Respondent Hospital persisted in its refusal to bargain in
good faith, effectively rejecting any attempt by the Union to
"move the negotiations out of the most deadlock they were
in .... " Respondent Hospital thereby violated Section
8(a)(5) and (1) of the Act.
The issue remains, whether Respondent Hospital, by its
conduct, also violated Section 8(a)(3) and () of the Act.
General Counsel argues in support of this allegation that
Respondent Hospital.
by granting wage increases to nonunit employees while
it was refusing to bargain in good faith with the Union
with respect to wages and by thereafter refusing to
grant retroactive wage increases to unit employees, un-
lawfully withheld wage increases from unit employees
from on or about September 26, 1977 to on or about
April 24, 1978, in violation of Section 8(a)(3) and (1) of
the Act.2'
Respondent contends that the Hospital did not violate Sec-
tion 8(a)(3) "by withholding a wage increase from bargain-
ing unit employees."
In Shell Oil Company, Incorporated and Hawaii Emplqv-
ers' Council, 77 NLRB 1306, 1310 (1948), the Board stated
in pertinent part:
Absent an unlawful motive, an employer is privileged to
give wage increases to his unorganized employees, at a
time when his other employees are seeking to bargain
collectively through a statutory representative. Like-
wise, an employer is under no obligation under the Act
to make such wage increases applicable to union mem-
bers, in face of collective bargaining negotiations on
their behalf involving much higher stakes ... [footnote
omitted].
The Board found in Shell Oil that the employer had not
refused to bargain in good faith and, further, had not dis-
criminated against its employees by withholding certain
wage increases. More recently, in B. F. Goodrich Company,
195 NLRB 914 (1972), the Board quoted from the Shell Oil
rationale and concluded:
The granting of a new profit-sharing benefits to unor-
ganized employees but not to represented employees is
not, standing alone, prohibited discrimination [foot-
note omitted].
2 The complaint, as amended, alleges this discriminatory withholding to
be from on or about October 1. 1977, to on or about April 24. 1978.
The Board noted that the employer's "unlawful refusal to
bargain did not create any obligation automatically to
grant the identical benefit to the represented employees
A similar issue was also raised in Chevron Oil Company,
Standard Oil ('ompanr' of Texas Division, 182 NLRB 445.
449 (1970). enforcement denied 442 F.2d 1067 (5th Cir.
1971). There, the Board found that the employer had failed
to negotiate in good faith in violation of Section 8(a)(5) of
the Act and, in addition, had violated Section 8(a)(3) of the
Act by "withholding from the unit employees involved...
wage increases and improved benefits that it granted to
other employees." As the Board noted, the union, "follow-
ing the impasse, had sought to have respondent put into
effect retroactively for these employees, without contract.
the wage-benefit increases it had earlier granted its unrepre-
sented employees and offered the union. Respondent re-
fused .... " Ihe Board stated:
Were it not for the unfair labor practice setting in
which the withholding action occurred, we would have
no hesitancy in adopting the Trail Examiner's finding
[dismissing the allegation.] It has long been an estab-
lished Board principle that, in a context of good-faith
bargaining, and absent other proof of unlawful motive.
an employer is privileged to withhold from organized
employees wage increases granted to unorganized em-
ployees or to condition their grant upon final contract
settlement [citations omitted].
The Board, in finding a Section 8(a)(3) violation in Chevron
Oil at 450. reasoned:
The union could either capitulate to respondent's bad-
faith bargaining position, and thereby abdicate in large
measure its statutory role as an employee representa-
tive, or it could remain without any contract at all
while the unit employees continued to suffer the loss of
benefits being enjoyed by other employees and which
would have been theirs also had they not voted in the
union. Whichever path the union chose, it could only
lead to undermining it in the eyes of employees as an
effectual employee representative. As the respondent's
withholding action was thus an integral part of its un-
lawful course of conduct, it must also be viewed as
repugnant to statutory policy, and therefore cannot be
justified as conduct serving legitimate interests of re-
spondent.
The Fifth Circuit denied enforcement of the Board's order
with respect to its bad faith bargaining and discriminatory
withholding of wage findings. The court stated in pertinent
part:
We have determined that the Board's finding that the
company's withholding action occurred within a bad
faith bargaining context is not supported by substan-
tial evidence on the record as a whole. It follows that
the company was within permissible bounds in refrain-
ing from granting the benefits to the union represented
employees in the absence of agreement [citations
omitted].
Applying these principles to the facts of this case, I find
and conclude that Respondent Hospital's withholding of
860
SOUTH SHORE HOSPITAL
the wage increases from the Union employees was in sub-
stantial part discriminatorily motivated and, consequently,
violative of Section 8(a)(3) and (I) of the Act. The Hospital,
during the course of some 18 bargaining sessions, acting in
bad faith, had refused to submit to the union wage and
economic counterproposals and had refused to discuss with
the union wages and economic benefits. However, at the
eighteenth bargaining session, some eight months after bar-
gaining had commenced, the Hospital offered to the Union
the same wage and economic benefits which it had granted
to the nonUnion employees six months earlier without re-
troactivity. The Hospital, at the same time. persisted in its
bad faith conduct by making clear to the Union that it
would not grant retroactivity under any circumstances and
by dismissing further counterproposals from the Union.
Hospital spokesman Brown had warned Union Repre-
sentative Shea during the thirteenth bargaining session on
November 2,
... the longer negotiations went on without agreement
then the more likely it was that the Hospital would
make proposals to change the benefits of the contract
. . there would be more proposals to reduce benefits,
more than already was on the table.
At the same time, the Hospital, by refusing to bargain in
good faith, made it impossible for the Union, in fulfilling its
role as statutory bargaining agent for the unit employees, to
conclude such an agreement. Thereafter, when the Hospital
finally offered to the Union the economic benefits previ-
ously granted to the nonunion employees without retroac-
tivity, Brown made clear to the union representative that
the Hospital was not claiming any "financial inability to
grant retroactivity"; the Hospital had budgeted such in-
creases months earlier for both Union and nonunion em-
ployees; and "the Union could very well have gotten the
same offer last fall if they simply had been agreeable to the
proposals which the Hospital had on the table .. " Brown
also cited the Union's failure to extend the contract "when
the idea was broached by the Hospital"; the length of the
bargaining; and "other things that had gone on in addition
to the length of bargaining ... ."
I am persuaded here that Respondent Hospital, in refus-
ing to grant the retroactive wage increases to the union
employees, was motivated in substantial part by a desire to
punish the unit employees because they had chosen Union
representation. As the Board stated in Chevron Oil, supra, at
471, "the wage benefit withholding in the instant case ...
was used by Respondent in the service of designs inimical
to the process of collective bargaining. The foreseeable and
clearly intended effect of the withholding was to confront
the Union with a Hobson's choice: The Union could either
capitulate to Respondent's bad faith bargaining position,
and thereby abdicate in large measure its statutory role as
an employee representative, or it could remain without any
contract at all while the unit employees continued to suffer
the loss of benefits being enjoyed by other employees and
which would have been theirs had they not voted in the
Union. Whichever path the Union chose, it could only lead
to undermining it in the eyes of the employees as an effec-
tual employee representative .... "
In sum, here, the Employer's withholding action was an
integral part of its unlawful course of conduct. It cannot be
justified as serving any legitimate interests of the Employer.
This discriminatory conduct plainly had a natural and fore-
seeable effect of chilling employee desires for Union repre-
sentation. Such conduct was intended to punish the unit
employees because they had selected Union representation.
Respondent Hospital therefore violated Section 8(a)(3) and
(1) of the Act.
CONCI.USIONS OF LAW
I. Respondent Hospital is an employer engaged in com-
merce within the meaning of the Act.
2. Charging Party Union is a labor organization within
the meaning of the Act.
3. Respondent Hospital has violated Section 8(a)(5) and
(1) of the Act from about September 16, 1977, to about
March 22, 1978, by refusing to bargain with Charging Party
Union as the exclusive bargaining agent of its employees in
the following appropriate unit over wages and other eco-
nomic benefits which were proposed by the Union unless
and until the Union agreed to reductions in certain other
existing benefits as proposed by the Respondent, and, in
addition, from about March 22, 1978, by refusing to bar-
gain in good faith with the Union with respect to wages.
The appropriate bargaining unit is:
all full-time, permanent part-time and part-time em-
ployees of Respondent at its Weymouth facility em-
ployed as x-ray technologists, nuclear technologists,
laboratory technicians, laboratory technologists, respi-
ratory therapists, respiratory therapy technicians.
physical therapy assistants, operating room techni-
cians, ekg technicians, orthopedic technicians and
pharmacy technicians, but excluding all licensed practi-
cal nurses, registered nurses, professional employees,
clerical employees, all students, temporary and casual
employees, managerial employees, guards, and super-
visors as defined in Section 2(11) of the Act.
4. Respondent Hospital violated Section 8(a)(3) and (1)
of the Act by discriminatorily withholding from the above
unit employees from about October 1, 1977, to about April
24, 1978. the wage increases which were granted nonunit
employees, in order to discourage their membership in
Charging Party Union.
5. The unfair labor practices found above affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
REMEDY
In order to remedy the unfair labor practices found
herein and to effectuate the purposes of the Act, Respon-
dent Hospital will be directed to cease and desist from en-
gaging in the conduct found unlawful; to cease and desist
from in any other manner interfering with employee Sec-
tion 7 rights; and to post the attached notice. Further, Re-
spondent Hospital will be directed, upon request, to bar-
gain collectively and in good faith with Charging Party
Union as the exclusive bargaining agent of its employees in
the unit described above and if an understanding is reached
861
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to embody such understanding in a signed agreement. In
addition, Respondent Hospital will be directed to make
whole the unit employees for any monetary losses they may
have suffered as a result of the Employer's discriminatory
withholding of the wage increases. as found herein, from on
or about October 1, 1977, to on or about April 24, 1978,
with interest thereon to be computed in the manner pre-
scribed in F. W. Woolworth Company. 90 NLRB 289 (1950),
and Florida Steel Corporation, 231 NLRB 651 (1977). See,
generally, Isis Plumbing & Heating Co., 138 NLRB 716
(1962). Cf. Chevron Oil Co., supra, 182 NLRB at 450 451.72
ORDER26
The Respondent, South Shore Hospital, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Failing or refusing upon request to bargain collec-
tively and in good faith with respect to rates of pay, wages,
hours of employment, and other terms and conditions of
employment with Mass. Hospital Workers Union, Local
880, S.E.I.U., AFL-CIO, as the exclusive bargaining agent
of the employees in the unit described below, by refusing to
bargain with the Union over wages and other economic
benefits which were proposed by the Union unless and until
the Union agreed to reductions in certain existing benefits
as proposed by the Hospital and by refusing to bargain in
good faith with the Union with respect to wages. The ap-
propriate bargaining unit is:
all full-time, permanent part-time and part-time em-
ployees of Respondent at its Weymouth facility em-
ployed as x-ray technologists, nuclear technologists,
laboratory technicians, laboratory technologists, respi-
ratory therapists, respiratory therapy technicians,
physical therapy assistants, operating room techni-
cians, ekg technicians, orthopedic technicians and
2" Counsel for Respondent argues that the Board is without the authority
to grant "a retroactive order like that issued in Chevron ..." citing, inter alga.
H. K Porter Co.. Inc., Dissron Division-Danville Works v. N. L. R. B.. 397 U.S.
99 (1970). Here, unlike in H. K Porter, the Board is not compelling agree-
ment to substantive terms of a contract. but is instead remedying the Em-
ployer's discriminatory conduct, the discriminatory withholding of a wage
increase, in violation of Sec. 8(a)3) of the Act.
X1 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.
pharmacy technicians, but excluding all licensed prac-
tical nurses, registered nurses, professional employees,
clerical employees, all students, temporary and casual
employees, managerial employees, guards, and super-
visors as defined in Section 2(1 1) of the Act:
(b) Discouraging membership in said Union, or in any
other labor organization, by discriminatorily withholding
from the above unit employees from on or about October 1,
1977, to on or about April 24, 1978. wage increases which
were granted to its nonunit employees:
(c) From in any other manner interfering with, restrain-
ing or coercing employees in the exercise of their Section 7
rights.
2. Take the following affirmative action necessary to ef-
fectuate the purposes of the Act:
(a) Upon request bargain collectively and in good faith
with said Union as the exclusive bargaining agent of its
employees in the above unit with respect to rates of pay,
wages, hours of work, and other terms and conditions of
employment and if an understanding is reached embody
such understanding in a signed agreement;
(b) Make whole the employees in the unit found appro-
priate for any monetary losses they may have suffered as a
result of the hospital's discriminatory withholding of the
wage increases granted to its nonunit employees as pro-
vided in this Decision;
(c) Preserve and make available to the Board, upon re-
quest, all payroll records and reports, and all other records
necessary and useful to determine the amount of backpay
due under this Decision;
(d) Post at its facility in Weymouth, Massachusetts, cop-
ies of the attached notice marked "Appendix."2 7 Copies of
said notice, on forms provided by the Regional Director for
Region , after being duly signed by Respondent's repre-
sentative, shall be posted by Respondent immediately upon
receipt thereof and be maintained by it for 60 consecutive
days thereafter in conspicuous places including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure that said
notices are not altered, defaced or covered by any other
material:
(e) Notify the Regional Director for Region I, in writing,
within 20 days from the date of this Order, what steps have
been taken to comply herewith.
27 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
862