SOUTHCOAST HOSPITALS GROUP, INC.

National Labor Relations Board - Board Decisions

Jun 28, 2017

365 NLRB No. 100 (N.L.R.B. 2017)

365 NLRB No. 100
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Southcoast Hospitals Group, Inc. and Massachusetts
Nurses Association. Case 01–CA–150261
June 28, 2017
DECISION AND ORDER
BY CHAIRMAN MISCIMARRA AND MEMBERS PEARCE
AND MCFERRAN
On March 7, 2016, Administrative Law Judge David I.
Goldman issued the attached decision. The Respondent
filed exceptions and supporting, answering, and reply
briefs. The General Counsel filed cross exceptions and
supporting and answering briefs.
The National Labor Relations Board has considered
the judge’s decision and the record in light of the excep-
tions, cross-exceptions, and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order as modified and set
forth in full below.2

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 We affirm the judge’s finding that the Respondent violated Sec.
8(a)(5) and (1) by failing and refusing to provide the Union with re-
quested information.
We also affirm the judge’s finding that the Respondent violated Sec.
8(a)(5) and (1) by unilaterally implementing its final offer without
having reached a valid impasse. The Board has held that “overall im-
passe may be reached based on a deadlock over a single issue.” Atlan-
tic Queens Bus Corp., 362 NLRB No. 65, slip op. at 1 (2015) (citing
CalMat Co., 331 NLRB 1084, 1097 (2000)). “The party asserting a
single-issue impasse has the burden to prove three elements: (1) that a
good-faith impasse existed as to a particular issue; (2) that the issue was
critical in the sense that it was of ‘overriding importance’ in the bar-
gaining; and (3) that the impasse as to the single issue ‘led to a break-
down in overall negotiations’ . . . .” Id. (quoting CalMat, 331 NLRB at
1097). Here, for the reasons explained by the judge, the Respondent
failed to prove that an impasse existed as to any particular issue and,
even assuming that impasse was reached on a particular issue, the Re-
spondent failed to show that it led to a breakdown in overall negotia-
tions.
Chairman Miscimarra agrees that the Respondent violated Sec.
8(a)(5) and (1) of the Act when it implemented its final offer without
having reached a valid impasse, but he does so based solely on the
Respondent’s failure to prove “a breakdown in overall negotiations” as
required under the third element of the CalMat standard, and he does
not rely on sec. III(b) of the judge’s decision.
In addition, Chairman Miscimarra disagrees with the judge’s state-
ment, in sec. III(a) of his decision, equating the Respondent’s invalid
declaration of impasse with a “refusal to bargain.” Chairman Misci-
marra believes this statement is incorrect in two respects. First, an
ORDER
The National Labor Relations Board orders that the
Respondent, Southcoast Hospitals Group, Inc., Ware-
ham, Massachusetts, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with the Massa-
chusetts Nurses Association (the Union) by failing to
furnish it with requested information that is relevant and
necessary to the Union’s performance of its functions as
the collective-bargaining representative of the Respond-
ent’s unit employees.
(b) Unilaterally changing the terms and conditions of
employment of unit employees by implementing its final
offer without the parties having reached a lawful im-
passe.
(c) 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.

unfair labor practice does not arise merely from a false declaration of
impasse (i.e., declaring impasse when a legally valid bargaining im-
passe does not exist). What violates Sec. 8(a)(5) in this situation is the
employer’s implementation of its final offer in the absence of a valid
impasse; the employer’s false declaration of impasse does not consti-
tute an independent violation of the Act. Second, even when an em-
ployer falsely declares the existence of an impasse and then unlawfully
implements its final offer, this cannot accurately be described as a
“refusal to bargain” since both parties, obviously, were bargaining.
Although the phrase “refusal to bargain” is sometimes used loosely to
describe all violations of Sec. 8(a)(5), it really applies to cases in which
a union has requested bargaining over a mandatory bargaining subject,
and the employer refuses to bargain over the matter. By comparison,
the Respondent’s violation here arises from a separate 8(a)(5) obliga-
tion, recognized by the Supreme Court in NLRB v. Katz, 369 U.S. 736,
743 (1962), to bargain to an agreement or impasse (or at least to pro-
vide the union notice and opportunity for such bargaining) before mak-
ing changes in any term or condition of employment that constitutes a
mandatory bargaining subject. This Katz-type violation occurs where,
as here, there has been no “refusal to bargain,” but the employer has not
satisfied its duty to refrain from making changes in mandatory bargain-
ing subjects unless bargaining has resulted in an agreement or impasse.
See Total Security Management Illinois 1, LLC, 364 NLRB No. 106,
slip op. at 25–26 (2016) (Member Miscimarra, concurring in part and
dissenting in part) (describing difference between the Sec. 8(a)(5) duty
to bargain upon request and the duty to refrain from making unilateral
changes unless the employer has provided the union notice and oppor-
tunity for bargaining to an agreement or impasse); E.I. du Pont de
Nemours, 364 NLRB No. 113, slip op. at 17–19, 20 fn. 35, 21 fn. 39
(2016) (Member Miscimarra, dissenting) (same).
We find it unnecessary to pass on whether the Respondent violated
Sec. 8(a)(5) by introducing a new and regressive proposal in violation
of the parties’ ground rules, as the remedy for this additional violation
would be subsumed within the remedy for the unlawful implementation
violation. Chairman Miscimarra would affirm the judge’s finding that
the Respondent did not violate Sec. 8(a)(5) in this regard.
In adopting the judge’s tax compensation remedy, we rely on Ad-
voServ of New Jersey, 363 NLRB No. 143 (2016).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Furnish to the Union, in a timely manner, the in-
formation requested March 9, 2015, regarding the num-
ber of nurses that have used the FMLA benefit.
(b) Upon the Union’s request, rescind the changes in
the terms and conditions of employment for its unit em-
ployees that were unilaterally implemented on and after
April 15, 2015, as part of the implementation of its final
bargaining offer.
(c) Make unit employees whole for any loss of earn-
ings or other benefits suffered as a result of the unlawful
unilateral implementation of changed terms and condi-
tions of employment, in the manner set forth in the rem-
edy section of the judge’s decision.
(d) Compensate affected employees for the adverse tax
consequences, if any, of receiving lump-sum backpay
awards, and file with the Regional Director for Region 1
a report allocating the backpay awards to the appropriate
calendar year for each employee.
(e) Before implementing any changes in wages, hours,
or other terms and conditions of employment of unit em-
ployees, notify and, on request, bargain collectively and
in good faith with the Union as the exclusive collective-
bargaining representative of employees in the following
bargaining unit:
All registered nurses employed by Southcoast for its
Tobey Hospital site, excluding the Director of Nursing,
the Assistant Director of Nurses, Nurse Managers,
Administration Supervisor, managerial employees, su-
pervisor, confidential employees, and all other employ-
ees.
(f) Within 14 days after service by the Region, post at
its facilities in Wareham, Massachusetts, copies of the
attached notice marked “Appendix.”3 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 1, after being signed by the Respondent's authorized
representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous plac-
es, including all places where notices to employees are
customarily posted. In addition to physical posting of
paper notices, notices shall be distributed electronically,
such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent
customarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respond-

3 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
ent to ensure that the notices are not altered, defaced, or
covered by any other material. If the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since March 9, 2015.
(g) Within 21 days after service by the Region, file
with the Regional Director for Region 1 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. June 28, 2017
______________________________________
Philip A. Miscimarra, Chairman
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT refuse to bargain collectively with the
Massachusetts Nurses Association (the Union) by failing
to furnish it with requested information that is relevant
and necessary to the Union’s performance of its func-
tions as the collective-bargaining representative of our
unit employees.
SOUTHCOAST HOSPITALS GROUP, INC. 3
WE WILL NOT unilaterally change the terms and condi-
tions of employment of unit employees by implementing
our final offer without having reached a lawful impasse.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
set forth above.
WE WILL furnish to the Union, in a timely manner, the
information requested March 9, 2015, regarding the
number of nurses that have used the FMLA benefit.
WE WILL, upon the Union’s request, rescind the
changes in the terms and conditions of employment for
its unit employees that were unilaterally implemented on
and after April 15, 2015, as part of the implementation of
our final bargaining offer.
WE WILL make unit employees whole, with interest,
for any loss of earnings or other benefits suffered as a
result of the unlawful unilateral implementation of
changed terms and conditions of employment.
WE WILL compensate any affected employees for the
adverse tax consequences, if any, of receiving lump-sum
backpay awards, and WE WILL file with the Regional Di-
rector for Region 1 a report allocating the backpay
awards to the appropriate calendar year for each employ-
ee.
WE WILL, before implementing any changes in wages,
hours, or other terms and conditions of employment of
unit employees, notify and, on request, bargain collec-
tively and in good faith with the Union as the exclusive
collective-bargaining representative of employees in the
following bargaining unit:
All registered nurses employed by Southcoast for its
Tobey Hospital site, excluding the Director of Nursing,
the Assistant Director of Nurses, Nurse Managers,
Administration Supervisor, managerial employees, su-
pervisor, confidential employees, and all other employ-
ees.
SOUTHCOAST HOSPITALS GROUP
The Board’s decision can be found at
www.nlrb.gov/case/01–CA–150261 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Re-
lations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.
Rick Concepcion, Esq., for the General Counsel.
Joseph D. Whelan, Esq. and Matthew H. Parker, Esq. (Whelan,
Corrente, Kinder & Siket, LLP), of Providence, Rhode Is-
land, for the Respondent.
Jason R. Powalisz, Esq. (McDonald, Lamond, Canzoneri), of
Southborough, Massachusetts, for the Charging Party.
DECISION
Introduction
DAVID I. GOLDMAN, ADMINISTRATIVE LAW JUDGE. In this
case a hospital and its nurses’ union were engaged in collec-
tive-bargaining negotiations for a successor labor agreement.
At the eighth bargaining session the employer declared impasse
and unilaterally implemented its bargaining proposal. The
Government argues that the hospital violated its bargaining
obligations under the National Labor Relations Act (Act) by
failing to provide requested information relating to a benefits
proposal, by introducing an untimely and regressive wage pro-
posal in violation of the parties’ agreed-to bargaining ground
rules, and by unilaterally implementing its bargaining proposal
in the absence of valid bargaining impasse.
As discussed herein, I find that the hospital’s failure to pro-
vide the requested benefits information violated the Act. I find
that under all the circumstances, the regressive wage proposal
did not independently violate the Act. Finally, I find that a
valid bargaining impasse did not exist when the hospital de-
clared impasse and unilaterally implemented its proposals. The
implementation violated the Act.
STATEMENT OF THE CASE
On April 16, 2015, the Massachusetts Nurses Association
(MNA or Union) filed an unfair labor practice charge alleging
violations of the Act by Southcoast Hospitals Group (South-
coast or Hospital or Employer) docketed by Region 1 of the
National Labor Relations Board (Board) as Case 01–CA–
1502161. An amended charge was filed in the case on May 19,
2015. Based on an investigation into the charge, on July 31,
2015, the Board’s General Counsel, by the Regional Director
for Region 1 of the Board, issued a complaint and notice of
hearing alleging that the Hospital had violated the Act. On
August 12, 2015, the Hospital filed an answer denying all al-
leged violations of the Act. The Hospital filed a first amended
answer on October 5, 2015.
A trial was conducted in this matter on October 27–29, and
November 18–19, 2015, in Providence, Rhode Island. Counsel
for the General Counsel, the Union, and the Charging Party,
filed posttrial briefs in support of their positions by January 28,
2016. On the entire record, I make the following findings,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
conclusions of law, and recommendations.
JURISDICTION
Southcoast is, and at all material times has been, a corpora-
tion with an office and place of business in Wareham, Massa-
chusetts, where it is engaged in operating a hospital. In con-
ducting its business operations, Southcoast annually derives
gross revenues in excess of $250,000. In conducting its busi-
ness operations, Southcoast annually purchases and receives
goods valued in excess of $5000 at the Hospital directly from
points outside Massachusetts. At all material times, Southcoast
has been an employer engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act and has been a health
care institution within the meaning of Section 2(14) of the Act.
At all material times the Union has been a labor organization
within the meaning of Section 2(5) of the Act.
Based on the foregoing, I find that this dispute affects com-
merce and that the Board has jurisdiction of this case, pursuant
to Section 10(a) of the Act.
UNFAIR LABOR PRACTICES
FACTUAL FINDINGS
Introduction
Southcoast is part of a larger entity, Southcoast Health Sys-
tem, which includes, in addition to Southcoast, a physicians’
group, a visiting nurses group, and some other minor subsidiar-
ies. Southcoast operates three acute care hospitals in Massa-
chusetts: Charlton Memorial in Fall River, St. Luke’s in Bed-
ford, and Tobey, in Wareham. Of the three hospitals, Tobey is
the smallest with 80 beds and approximately 150 nurses. To-
bey is also the only one of the three where the nurses are repre-
sented by a union. The most recent collective-bargaining
agreement between the parties provides that,
Southcoast recognizes the [Massachusetts Nursing] Associa-
tion as the sole and exclusive bargaining representative for all
registered nurses employed by Southcoast for its Tobey Hos-
pital site, excluding the Director of Nursing, the Assistant Di-
rector of Nurses, Nurse Managers, Administration Supervisor,
managerial employees, supervisor, confidential employees,
and all other employees.
Another union, the SEIU, represents “virtually everybody
[else] at Tobey,” primarily the maintenance, service, and cleri-
cal and technical support employees.
The MNA has represented the Tobey nurses for approxi-
mately 40 years. At least for the last 18 or 19 years since,
Southcoast was formed, the MNA and Southcoast, have main-
tained a notable record of labor peace. With the exception of
the events described herein, the parties have never failed to
reach a successor labor agreement through collective bargain-
ing.
The parties’ most recent collective-bargaining agreement
was entered into October 1, 2012, and scheduled to terminate
no earlier than September 30, 2014 (the 2012 Agreement).
The reopener negotiations
The 2012 Agreement contained a provision permitting, at the
request of either party, the agreement to be “reopened during
the second year for the purposes of renegotiating regarding the
economic terms of this Agreement.” Invoking this clause, in
the fall of 2013, the Hospital sought “reopener” negotiations
with the Union. The parties met on several occasions but were
unsuccessful in negotiating any changes to the 2012 Agreement
under the reopener clause. Those negotiations were formally
“closed” by a September 4, 2014 letter from the Hospital’s then
attorney, Anthony Rizzotti, to the MNA’s associate director,
labor division, John Gordon, which stated that all proposals
were being withdrawn.
The failed reopener negotiations involved at least three pro-
posals that have relevance to subsequent events. First, during
the reopener, the Union sought across-the-board wage increases
but the Hospital opposed this. With the withdrawal of all pro-
posals the Union acceded to there being no across-the-board
wage increase.
Second, as part of the reopener, the Hospital proposed to
“halve” the wage “steps” available to nursing employees. Un-
der the 2012 Agreement, and in past agreements as well, nurses
at Tobey progressed annually—on the anniversary date of their
hire—through 21 wage steps listed in the contract. The first
step set the minimum salary for a nurse, with a higher wage set
for each successively higher step. Newly hired nurses were
placed into a step—presumably step 1 in the case of a nurse
recently joining the profession—although the contract states
that a newly hired nurse can be hired in at a higher step based
on prior relevant experience. At the top step—step 21 in the
2012 Agreement—maximum pay was reached. Thus, for a
nurse hired in at step 1, a maximum pay rate would be
achieved, based on longevity, after 20 years. The steps provid-
ed for significant wage advancement over the years. For in-
stance, the 2012 Agreement provided that as of October 1,
2012, a staff nurse earned a rate of $26.94 an hour in step 2,
while a nurse at step 21 earned $50.50 an hour.1 After the top
step was reached, the nurse remained at the top step.
Step increases are to be distinguished from across-the-board
raises that might be included in a bargaining agreement. Thus,
the 2012 Agreement provided that effective May 1, 2013, the
minimum base (i.e., 40-hour work week) pay increased $0.75
an hour. This across-the-board increase would then be applied
to each step level.
The other Southcoast nonunion Hospitals did not have yearly
step increases for nurses. Rather, nurses in these hospitals were
eligible for an annual merit pay increase.
According to David DeJesus, the senior vice president for
human resources of Southcoast Health System, who “oversaw
the strategy of bargaining” during the wage reopener, one of the
Hospital’s core proposals was to “realign the steps.” According
to DeJesus, “[s]ome of the steps had grown pretty significantly,
so we wanted to realign those to be a bit more reasonable.”
Gordon described the Hospital’s as “propos[ing] to cut the steps
in half.” As part of the proposal the Hospital also proposed

1 I use these examples for illustrative purposes only. There were
some wrinkles. Pursuant to the 2012 Agreement, step 1 was dropped,
and step 2 became the new step 1, and so on through the steps. A new
step 21 was to be added that was 2 percent higher than the old step 21
(i.e., than the new step 20).
SOUTHCOAST HOSPITALS GROUP, INC. 5
adding a 2 percent step increase at the top step. As referenced,
the proposals were not agreed to by the parties during the reo-
pener negotiations and were withdrawn pursuant to the Sep-
tember 14, 2014 letter described above.
Finally, another proposal unsuccessfully advanced by the
Hospital in the reopener negotiations also is relevant to subse-
quent events. Among the 2012 Agreement’s paid holidays for
nurses were the holidays of Patriots’ Day and Columbus Day.
(Patriots’ Day, celebrated the third Monday in April, is an ob-
served public holiday in Massachusetts.) The Hospital had
proposed changing these two contractual holidays to “floating”
holidays, essentially eliminating the holiday pay of time and a
half for a nurse who worked either day. Eligible nurses could
still take the days as “floating” holidays, but would be paid
regular straight time instead of the higher holiday pay rate.
As discussed below, the Hospital had eliminated these days
as full paid “holidays” in their two other nonunion facilities.
The union that represents service employees at Tobey, the
SEIU, had agreed during negotiations in late March 2014 to the
same proposed change in holidays.
In the September 4, 2014 letter to the Union announcing the
closure of reopener negotiations, the Hospital’s attorney noted,
“As we discussed, the Hospital does intend to vigorously pur-
sue its holiday pay proposal in full contract negotiations.” The
letter makes no reference to the step proposal, and in fact, as
discussed below, the proposal to “halve” the steps did not resur-
face.
The annual letter to employees from Southcoast Health System
By letter dated October 15, 2014, Southcoast Health Sys-
tem’s president, Keith Hovan, sent an annual message to all
7200 employees of the Southcoast system, at each hospital and
all subsidiary enterprises, bargaining unit and nonbargaining
unit. A version of this letter is sent every year around this time
(just after the close of the fiscal year) and provides an over-
view, as DeJesus explained, “in terms of where we are as an
organization.” The letters “[t]alk about our budget to some
extent. And then generally talk about our wage and benefit
program for the coming year.” This letter described the imple-
mentation (for nonunion employees) of many of the wage and
benefit cuts that the Hospital would seek from the Union in
upcoming negotiations.
The 2014 letter described “significant” recent growth, par-
ticularly in adding new physicians, but described “growing
pains” resulting in an anticipated 3-percent shortfall in the op-
erating budget for 2014. It described the layoff of approximate-
ly 70 employees that was already in process among certain
nonbargaining unit employees, and a hiring freeze. It an-
nounced an increase in health insurance premiums and deducti-
bles, limits on “cashing in” earned time off, a change in pension
contributions, and the letter announced a
wage freeze in our FY 15 budget. From October 1, 2014 to
September 30, 2015, performance evaluations will be con-
ducted as usual, but there will be no accompanying merit in-
creases. These changes in our wage program will impact all
employees. We will monitor our financial results closely and
should we exceed our budget we will consider a pay increase
or payment. As always, we will negotiate with both unions
with our traditional goal of being consistent with wages and
benefits throughout Southcoast.
Negotiations for a successor agreement
By letter dated June 11, 2014, from Gordon to the Hospital’s
director of human resources, Margaret Hess, the Union gave
notice to the Hospital of its intent to terminate the 2012 Agree-
ment as of September 30, 2014. Gordon’s letter stated that the
Union wished to begin negotiations for a successor agreement
in July.
While there may have been oral conversations between Riz-
zotti and Gordon attendant to the reopener negotiations or other
contracts they were negotiating at the time, there is no record of
a response regarding the successor agreement from the Hospital
or its attorney until Attorney Rizzotti responded by email dated
September 24, 2014. In that note, Rizzotti suggested that “we
extend the contract since we have not started yet.” Gordon
responded, agreeing to extend, and the next day the parties
executed an extension agreement extending the 2012 Agree-
ment through October 31, 2014. The parties spent the balance
of October agreeing on dates to meet, and on October 28, the
contract was extended again through December 17, 2014, after
the parties agreed to bargaining dates beginning November 10.
DeJesus testified that the Hospital did not want to meet and
bargain during October, as it was busy responding to the recent
realization in August that its economic situation “had gotten
much worse,” and it thus became engaged with “a very detailed
and difficult process” of selecting and carrying out a layoff of
approximately 70 (nonbargaining unit) employees, and manag-
ing their transition. According to DeJesus, “there was a moun-
tain of work . . . through all of October.”
The bargaining teams
Before the November 10 meeting, DeJesus, contacted Gor-
don to tell him that Rizzotti was no longer going to represent
the Hospital at negotiations. Instead, the Hospital’s chief nego-
tiator was to be Attorney Joseph Whelan.
In addition to Whelan, the Hospital’s bargaining team was
composed of DeJesus, the Tobey chief nursing officer, Carol
Conley, the associate chief nursing officer at the Tobey Hospi-
tal Sue Mangini, Director of Human Resources Margaret Hess,
and Janet Peirce, an HR representative at Tobey.
The union bargaining team was composed of Union Negotia-
tor Gordon, and three employee nurses at Tobey, cochairs Sha-
ron Miksch and Maddie Jezierski, and committee member Hei-
di Kilpatrick.2
November 10 meeting—agreement to ground rules
The parties met on November 10, 2014, at a meeting devoted
to introductions and to setting the ground rules for the collec-
tive bargaining. The union committee attended. Only Whelan

2 I note that in addition to oral testimony at the hearing, in recon-
structing events at the bargaining table I have relied upon contempora-
neous notes of bargaining taken by witnesses. I accept these as evi-
dence of what was stated at the bargaining table and of what transpired
in bargaining. Allis-Chalmers Mfg. Co., 179 NLRB 1, 2 (1969); NLRB
v. Tex-Tan, Inc., 318 F.2d 472, 483 (5th Cir. 1963). The contempora-
neously recorded bargaining notes of various witnesses were entered
into evidence without objection.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
and DeJesus attended for the Hospital. This meeting, like all
subsequent bargaining sessions, occurred at the Tobey Hospital.
At the November 10 meeting the parties did not engage in
substantive bargaining—by which I mean, substantive pro-
posals were not discussed. However the parties did meet for
several hours. Attorney Whelan, in particular, was new to the
Southcoast and he was introduced with some discussion of his
background as a labor negotiator.
The parties discussed ground rules for the negotiations. The
Hospital indicated that there was no need to put the ground
rules in writing, “that there would be good faith.” However,
the Union emerged from a caucus with the ground rules written
and the parties executed an agreement setting forth eleven
numbered ground rules that dealt with issues such as paid time
off from work for union bargaining committee members, the
identification of the primary spokesperson from each side, and
rules governing the submission of proposals, including the fol-
lowing:
Neither party will submit new proposals, as opposed to coun-
terproposals, after the fourth meeting, December 17, 2014.
All proposals must be reduced to writing. For purposes of
this ground rule, the first meeting is the meeting held on No-
vember 25, 2014.
According to Gordon, the purpose of this ground rule was
“to limit the number of proposals that either party can submit
up [until] the fourth session. After the fourth session, we can’t
submit any new proposals. It’s what’s on the table is on the
table, at that point.”
This November 10 session was considered session zero, with
session one to be the next meeting, with meetings scheduled for
November 25, December 5, 11, and 17.
November 25 meeting
The parties met again on November 25, for their first sub-
stantive bargaining session. This meeting began with the parties
exchanging initial proposals.
At this point I think it helpful to note a feature of the parties’
bargaining process used throughout the bargaining. The written
proposals and counterproposals offered by both sides through-
out negotiations proposed changes to, additions to, or deletions
from specific articles, sections, and even pages of the expiring
2012 Agreement. Both parties followed this procedure
throughout bargaining and every written proposal explicitly
identified the provision of the old contract it was changing, and,
for additions to the old contract, in which article and/or provi-
sion the new language was to be located.
This modus operandi is a practical and typical one for bar-
gaining successor collective-bargaining agreements. It means
that—and I find, although I think it undisputed—that the parties
were proposing and intending to renew the 2012 Agreement
except as changed or modified in these negotiations. In other
words, the intent of the parties was that unmentioned provisions
of the 2012 Agreement were being renewed. These negotia-
tions were not conducted on a blank slate, but on the template
of the 2012 Agreement. While this observation may be consid-
ered so obvious as to not merit mention, it think it is important
to establish from the outset. As will be seen it has implications
for some of the disputes between the parties.
The Union’s initial proposal contained 14 numbered pro-
posals.
Union proposals (UP) 1–6 involved financial proposals.
UP 1 proposed amending the collective-bargaining agreement
at Article II Section 2.1. Minimum Salaries Page 2, to provide
for an across-the-board wage increase of 5% on October 1,
2014, October 1, 2015 and October 1, 2016.
UP 2, proposed amending the collective-bargaining agree-
ment at Article II Section 2.2. Shift Differential Page 3 to in-
crease the evening differential to $4 an hour and the night dif-
ferential to $6 per hour.
UP 3 proposed amending the collective-bargaining agreement
at Article II Section 2.3. Weekend Duty weekend differential
to $3 per hour.
UP 4 proposed amending the collective-bargaining agreement
at Article II Section 2.4. On Call Pay Page 4 to increase on-
call pay to $6 per hour.
UP 5 proposed amending the collective-bargaining agreement
at Article II Section 2.5. Charge Nurse Page 4 to increase
charge pay to $6 per hour.
UP 6 proposed amending the collective-bargaining agreement
at Article II Section 2.9. Preceptorship Page 7 to increase pre-
ceptorship pay to $5 per hour.
In addition to the Union’s financial proposals (UP 1-6) the
Union’s proposals were:
UP 7 was a proposal to add a new provision to Article
II, Section 2.11, entitled “Floating” that would limit the
limit the Hospital’s “floating” of nurses. Union Negotiator
Gordon explained “floating” as follows:
The hospital, and this is the same in every hospital, from time
to time, they'll have sick calls or other things that happen, and
they'll be short in a particular unit. And they will pull a nurse
from another unit where they feel they have enough staff to
cover the patient census, and they will float that nurse. They
will float her to the unit that is short.
Floating was a significant proposal for the Union. As Gordon
explained:
Floating is something that—it's something that the nurses
despise. I mean they really do. They work in their individual
units and they get very, very comfortable in that, and so to
float somebody out of their unit that they're really used to real-
ly throws them off their game. They don't like it. It doesn't
matter what hospital I have represented. I have represented
quite a few over my years, it is the same lament that I hear
from nurses everywhere; they do not like floating. That is a
huge issue for them.
The Union’s floating proposal restricted “[e]xcept in emer-
gency circumstances” nurses from being “floated to another
unit without the nurse having received the unit-based orienta-
tion.” The proposal also provided that “a nurse who is floated
to another unit” was not expected to perform duties “which the
nurse believes she/he is not competent to perform.” The pro-
SOUTHCOAST HOSPITALS GROUP, INC. 7
posal also provided for three bullet points: “Per Diems”3 will
float first,” “RNs will only be required to float once per shift,”
and “[n]ewly hired RNs will not be required to float until they
have completed six (6) months.”
UP 8 proposed amending the collective-bargaining agree-
ment’s Mandatory Overtime provision, Article III Section 3.3
at page 8, to add a paragraph stating: “The Hospital will com-
ply with Massachusetts General Law and Massachusetts Regu-
lation on Mandatory Overtime.”
UP 9 proposed rewriting the collective-bargaining agree-
ment’s provision on time schedules, Article III, Section 3.4 at
page 8. The existing provision stated that
Time schedules and days off will be posted two weeks prior
to each schedule period. It is understood that such schedules
may be changed to meet emergency or special conditions.
UP 9 restated the first sentence of Article III, Section 3.4 but
proposed that the second sentence be revised to state:
It is understood that such schedules will not be changed un-
less it is to deal with an emergency. Nurses will be notified of
schedule changes by the Nursing Office 48 hours in advance.
UP 10 proposed revising Article IV, Section 4.1. at page 10,
regarding “Flex-Up Positions.” Under the 2012 Agreement, a
limited number of nurses could assume “flex” positions under
which they “generally” worked 32 (or 24) hours per week, but
could be required, “based upon the Hospital’s patient care re-
quirements” to “flex” up his/her hours. From the Union and
Gordon’s perspective, the current flex policy,
was causing a lot of problems within the bargaining unit. The
nurses were really upset over it. The nurses on my committee
said that this was causing some nurses to leave the hospital
that they hated flex so bad. We said that to [the Hospital bar-
gainers].”
The Union proposed to “[e]liminate all Flex-Up provisions.
All Flex RNs will revert to their base hours.”
UP 11, the Union proposed amending Article VIII, Section
8.5, at page 20, which previously listed various professional
meetings that nurses would be granted time off with pay to
attend (subsections (a)-(d)), to add subsections (e) and (f),
(e) The Tobey MNA Negotiating Committee will be released
with out [sic] loss of pay or benefits to attend contract nego-
tiations.
(f) The Hospital shall give paid release time to any local offi-
cial to attend an investigation meeting, grievance meeting, ar-
bitration or any other meeting or hearing that they need to at-
tend.
UP 12 proposed amending article IX , section 9.8 (Reduction
in Force), at page 25, by rewriting it to provide that if the Hos-
pital restores or fills a position that has been eliminated, or fills
a vacancy in the bargaining unit, any nurse previously dis-
placed from the position will, for 18 months following being
displaced, be offered the position being filled. In other words,
the Union’s proposal provided for recall rights to a position for
18 months for a nurse bumped or laid off in a reduction of

3 “Per diem” nurses were not regular staff nurses, and presumably
worked as temporary workers.
force.
In UP 13, the Union proposed a new section 14.2 at page 31
that would provide for the first time for a contractual successor-
ship provision. This would require the Hospital to include as a
condition of sale or transfer of ownership a clause making the
collective-bargaining agreement binding upon the successor.
The Union’s proposal also provided that the Union would be
provided notice of an agreement by the Hospital to merge, affil-
iate or sell and to agree to bargain with the Union over any
impacts on the bargaining unit of such change.
UP 14 was offered as a “place holder,” notifying the Hospital
that the Union might be proposing a side letter regarding a new
bariatric surgical program just starting up in the Hospital, but
no proposal was ever made by the Union on this subject.
The Hospital also offered its initial proposals. The Hospi-
tal’s proposals consisted of nine numbered proposals. None of
the nine proposals addressed wages.
Hospital Proposal (HP) 1 proposed amending the collective-
bargaining agreement at article II section 2.10 to provide for
new registered nurse graduates to be hired into a special transi-
tion unit or residency program and for up to 6 months receive a
reduced rate of pay. Specifically, HP 1 proposed the following
language amending 2.10 (with proposed added language under-
lined and proposed deleted language struck):
“A new RN graduate who is temporarily employed by the
Hospital (in an “overhire” capacity or hired into a Dedicated
Transition Unit (‘DTU’) or nurse residency program to work
a regular committed schedule for a specific period of time
which will normally last no longer than six months, will re-
ceive a reduced rate of pay of $18 per hour for up to six
months. Such employee will be, is a member of the bargain-
ing unit . . .”
In discussion, the Hospital negotiators explained that this
proposal was in effect at their other hospitals. In addition to
permitting an introductory lower rate of pay for newly graduat-
ed nurses, it would allow the Hospital to establish an orienta-
tion program that would permit training of the new graduate in
a specialty area.
HP 2 proposed amending article III, section. 3.1 Hours of
Work to add a new subsection that stated: “For staff rotating
from the day to night shift where weekend shifts are required,
Friday and Saturday will be deemed weekend night shifts.”
This was an attempt to clarify which shifts was part of the
weekend duty.
HP 3 amended proposed amending article V Holidays to
make Patriots’ Day and Columbus Day (2 of the 10 paid holi-
days provided under the contract) “floating holidays.” As de-
scribed above, this had been proposed by the Hospital in reo-
pener negotiations and would reduce the pay for employees
who worked on those two holidays.
HP 4 proposed amending article VI of the collective-
bargaining agreement to add a new section 6.3 (g), that provid-
ed: “A nurse must have sufficient ET in her/his bank at the
time the request is made to cover the requested time off.”4

4 ET refers to “earned time,” which encompassed an employee’s ac-
cumulated bank of sick leave, vacation, and holiday time.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
HP 5 proposed amending the second sentence of Article VI
Section 6.6(b)(i),which concerned the “cashing” in of accrued
and unused ET, to limit the annual amount a nurse could cash
in to “no more than two (2) weeks.”
HP 6 proposed that article VII, section 7.1, which sets forth
the medical and dental insurance, including a schedule of pre-
miums paid by employees, would be amended to reflect a 3.5
percent contribution increase toward medical insurance premi-
ums for employees. (The proposal was not specific as to wheth-
er it was medical and dental for which the Hospital was propos-
ing the increase, but later discussion made clear that this pro-
posal concerned medical insurance premiums.)
HP 7 proposed an amendment in article VII of the collective-
bargaining agreement of the employee contribution for dental
insurance, but for the amount of the increase stated that it was
“TBD” (to be determined).
HP 8 proposed deleting article VIII, section 8.15 of the col-
lective-bargaining agreement, a provision that provided that
nurses may be “eligible for an additional four weeks of FMLA
leave beyond the twelve (12) weeks of FMLA leave provided”
pursuant to Federal law.5
HP 9 proposed changing the pension benefits for employees.
Pursuant to the 2012 Agreement, the Tobey nurses were cov-
ered under the Southcoast Health System Partnership Plan, a
defined contribution retirement plan. During the 2012 Agree-
ment, the Hospital made an automatic (“core”) contribution of
3 percent (of each employee’s wage, for each employee with 2
years of service) to the plan and matched an employee’s contri-
butions dollar for dollar up to an additional 3 percent. In HP 9,
the Hospital proposed eliminating the automatic 3 percent core
contribution and 3 percent match, and replacing them with a
Hospital contribution that matched employee contributions up
to 6 percent.
After exchanging proposals the Hospital, speaking through
Whelan, stated orally that it would be adding a proposal to
clarify that a nurse who is on-call and then called into work,
begins getting paid when he or she arrives at the hospital. The
parties went into a caucus for about 45 minutes and returned to
the bargaining table at about 1:55 p.m. The parties proceeded
to go through the proposals.
With regard to HP 1, regarding the lower introductory wage
rate and specialty training for new RN grads, the Union con-
tended that such a proposal would not be successful and that the
Union believed that specialty areas should be offered internally
to veteran nurses. CNO Conley stated that the Hospital had
been using this system at its other hospitals for a couple of
years, and that with the many new nurses graduating there was
not much wage pressure. She indicated that new nurses liked
the intensive training coming out of school. The Union argued
that such a program geared toward veteran nurses would pro-
vide better retention than training new nurses in specialty areas
who might leave for other hospitals for better pay once trained
in a specialty area.

5 FMLA refers to the Family and Medical Leave Act, 29 U.S.C. §
2601, which permits eligible employees to take up to 12 weeks of un-
paid leave in a 12-month period to attend to certain personal serious
health conditions and certain family care matters.
With regard to HP 2, regarding the clarification of which
shifts constituted weekend work, the parties discussed this, and
the Union asked what problem the Hospital was trying to fix
with this proposal. Whelan talked about wanting to better de-
fine when the weekend is for scheduling purposes.
With regard to HP 3, the Hospital’s holiday proposal, this
was the holiday proposal seen during the reopener negotiations.
The Union rejected this proposal.
With regard to HP 4, the Hospital’s proposal that a nurse
must have existing ET in the bank in order to take that amount
of ET, the Union believed that this was already the practice.
However, the Union indicated it could agree to the proposal but
told the Hospital that it would counter with language for this
section of the contract that would require managers to respond
within a certain amount of time to employees’ requests to use
ET.
With regard to HP 5, capping the cashing in of ET to 2
weeks, the Union told the Hospital it rejected this proposal. The
Union told the Hospital it was just one more “give-back.”
With regard to HP 6, through discussion it was clarified that
the increase to employee premiums applied to health insurance.
Whelan told the Union that although submitted as a proposal,
“this was not a proposal, but notification” to the Union that this
increase would be made, a right that the Hospital maintained it
retained under the current terms and conditions. The Union
questioned why, in that case, it was framed as a proposal, but
the Hospital maintained it was, in any event, a notification.
The Union rejected this, for the time being, but told the Hospi-
tal it would need to review the contract to see if it agreed that
the Hospital had a unilateral right to make this change. (Ulti-
mately, after review, the Union determined that it agreed with
the Hospital that it could undertake this change unilaterally.)
With regard to HP 7, little was discussed, as the Hospital
stated that they were still deciding whether to propose an in-
crease in dental insurance premiums. As Gordon put it, this
proposal, then, was offered as a “place holder” to notify the
Union that such a proposal might be coming.
With regard to HP 8, the Hospital’s proposal to eliminate the
additional 4 weeks of FMLA-based leave, the Union rejected
the proposal, but asked the Hospital “to tell us how many peo-
ple utilized this article 8.15 over the past year” and “took the
extra four weeks.” Whelan responded that “[h]e’d look into it
and he’d get back to us.” Whelan told the Union this was a
costly benefit for the Hospital: “this gets to be expensive.”
Whelan told Gordon that “we would get . . . numbers for him.”
(As discussed below, this information was never provided.)
With regard to HP 9, the Hospital’s proposal to change the
pension contribution and matching rules, Whelan said that “the
language in the contract is that it’s part of the Southcoast Fund
and the Southcoast plan was changing” in the manner that the
Hospital was proposing here. The suggestion was that the “con-
tract says you[‘re] part of the pension fund [and the] fund is
changing” systemwide. In other words, as DeJesus, testified,
there was “discussion about whether we could just impose it.”
The Union requested that the Hospital provide it with a copy of
the “plan design.” Gordon testified that the Union wanted to
review the whole pension plan and have its retained pension
experts, Segal & Associates, review the matter. The Hospital
SOUTHCOAST HOSPITALS GROUP, INC. 9
justified this proposal to the Union by saying “they needed this
change in order to save money.” Whelan told Gordon, “of
course” the plan design is “available and we would get . . . that
for him.” (In fact, it was not provided until April 1, 2015.)
The Union’s proposals were also discussed at this meeting.
Union Proposals 1–6 involved proposals to increase wages and
pay differentials. The Union told the Hospital that “obviously
wages were important to us.” However, Gordon also told the
Hospital “even though . . . our initial [proposal] was five [per-
cent each year], it’s not like we really expected to get five, five,
and five. We understood we start off typically at every negotia-
tion something high.” Gordon testified that for this reason, the
Union is not surprised when an employer starts negotiations
“with no wage proposal.” Later in the meeting, Gordon told the
Hospital that the differentials in his proposal “were not a priori-
ty.”
The Hospital’s response on these proposals was unwavering
at this and at each negotiating session. Whelan told the Union
he “wanted to give a direct response to them, per [his] style”6
Whelan sweepingly rejected all of these proposals. In reject-
ing the Union’s wage proposals, Whelan told the Union that
“we’re interested in a pay freeze.” According to Gordon’s
bargaining notes, Whelan explained the Hospital’s position as
“pay freeze and pos[ition] won’t change.” Miksch’s notes
quote Whelan saying that “in rest of organ[ization] we have pay
freeze—no increase that[’]s our position.” During this bargain-
ing session, Gordon wrote a note to himself, “Hospital says no
place to go on these items.” Whelan said he “wanted to be
clear about our position from day one.”
Gordon testified that he told the Hospital that the nurses “as
a whole had taken pay freezes and zeros across the board in the
past. And Joe [Whelan] was saying that their position was not
going to change. . . . They weren’t interested in talking about
our first six proposals, which were all financial proposals.”
According to the testimony and notes of Associate Chief Nurs-
ing Officer Mangini, someone on the management side, in ref-
erence to the Union’s financial proposals, stated that there
would be “no increase due to others not increasing,’ meaning
that “no one else is going to get an increase . . . due to others
not getting an increase
Notably, while the Hospital adamantly rejected the Union’s

6 The emphasis on Whelan’s “clear” and “direct” style was an at-
tribute that the Hospital witnesses seemed to repeat endlessly both at
the negotiating table and at trial. See, e.g., Tr. 723 (“we wanted to be
clear and direct, up front. . . . I explained to their bargaining team that I
try and do that. That I try to be clear and direct.” . . . [W]e wanted to
be clear and direct.”); Tr. 260 (“Mr. Whelan said he wanted to be clear
and direct”); Tr. 306 (“And at that meeting, didn’t I say we wanted to
be clear and direct”); Tr. 412 (“Talked about your style in terms of
being direct, and said that people generally compliment you on being
direct in putting the issues out in front, and stating positions clearly”);
Tr. 416 (“You said that you wanted to give a direct response to them,
per your style . . . . And you said that you wanted to be clear about our
position from day one”); Tr. 418 (“You talked about being direct in
response and we would be direct in response”); Tr. 490 (“You opened
by saying that you wanted to be clear and direct”); Tr. 536 (“Mr.
Whelan said that he wanted to be clear and direct”). Truly, this is only
a sampling of the number of times in the testimony that such comments
appear.
financial proposals, the Hospital did not offer a written wage
proposal (and did not do so until March 9). In a hotly disputed
point at trial, Whelan and HR Representative Peirce (and no
one else, including DeJesus), testified that at this bargaining
session, Whelan referred to the pay freeze the Hospital sought
as “including steps.”7
While all witnesses agreed that Whelan repeatedly talked
about the Hospital wanting a “pay freeze,” Gordon and Jezier-
ski denied that Whelan ever stated that the “pay freeze”—
included a step freeze, a change to the 2012 Agreement that
would require an affirmative proposal from the Hospital, and
not just a rejection of the Union’s wage increase proposals.
Neither Gordon nor Jezierski’s bargaining notes reflect any
statement that the Hospital’s position included a step freeze
(until much later, March 9). DeJesus, the Hospital’s chief wit-
ness, did not testify that Whelan said this in this meeting. His
bargaining notes do not record such a statement. Neither
Miksch’s testimony about this meeting nor her notes reflects
this.8
The evidence in favor of it is (1) Whelan’s testimony: after
several witnesses failed to substantiate that an explicit state-
ment was made at this meeting that the pay freeze involved a
step freeze, Whelan took to the stand and testified to this effect.
(“our response [to the Union] was that we were . . . proposing a
pay freeze, and that would include steps”). (2) There is corrob-
orative value to Whelan’s testimony in a note he wrote to him-
self on his copy of the Union’s bargaining proposal about what
he wanted to say just before responding to the Union’s pro-
posal. The note stated: “Respondent w/ [the word “hold” is
then scratched out] no—pay freeze including steps.” (3)
Peirce’s bargaining notes from the meeting record “Pay freeze,
pay freeze for steps.” (4) And to some extent, Peirce’s testimo-
ny that “we were proposing a pay freeze which would include

7 On the fourth day of this five-day hearing, Whelan moved from
his role as the Respondent’s trial counsel to the Respondent’s fifth and
final witness. He testified to some of the most disputed issues in the
trial. The Board takes the position that “it is not the Board's function or
responsibility to pass on the ethical propriety of a decision by counsel
to testify in an NLRB hearing.” Wells Fargo Armored Service, 290
NLRB 872, 873 fn. 3 (1988). However, a case like this one demon-
strates the wisdom of State bar rules that frown on the practice, particu-
larly where, as here, the advocate chose to testify on behalf of his client
(he was not called by the other side), the conflict was eminently fore-
seeable, and his testimony involved sharply disputed issues that require
multiple credibility determinations. See rule 3.7 of the ABA Model
Rules of Professional Conduct, Lawyer as Witness (“A lawyer shall not
act as advocate at a trial in which the lawyer is likely to be a necessary
witness unless: (1) the testimony relates to an uncontested issue; . . . .”)
See also, ABA Canons of Professional Ethics, Canon 19 (“When a
lawyer is a witness for his client, except as to merely formal matters,
such as the attestation or custody of an instrument and the like, he
should leave the trial of the case to other counsel. Except when essen-
tial to the ends of justice, a lawyer should avoid testifying in court in
behalf of his client”).
8 I do not believe Miksch’s agreement to Whelan’s question that she
knew on November 25 that the Hospital wanted “a real pay freeze”
reflects knowledge that the Hospital wanted to freeze steps.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
steps.”9
I felt that there was a certain tendentiousness to the explicit-
ness of the statements testified to by both Whelan and Peirce. I
do believe and find that the other witnesses did not hear this
statement and (perhaps with the exception of DeJesus), did not
know that the Hospital’s “pay freeze” response to the Union’s
wage proposal included an intent to propose a freeze to steps.
However, particularly in light of Whelan’s corroborating note
setting forth what he planned to say to the Union, and the note
in Peirce’s contemporaneous bargaining notes that refers to a
“pay freeze for steps,” I find that this was said by Whelan,
once, in the November 25 session.
For reasons including the credible testimony of Gordon and
other union witnesses, and for reasons I discuss at length be-
low, I do not believe the Union understood the Hospital’s inten-
tion in regard to the steps (until March 9).
With regard to UP 7, on nurses floating to another unit,
Whelan asked if there was a specific problem or was the Union
looking to improve the contractual language. Gordon said both
and there were extensive discussions at the bargaining table
with employee members of the committee about the problems
nurses had with floating.
As to UP 9, regarding the notification of changing of time
schedules, Whelan asked about this and Gordon said it was a
sensitive issue for people’s personal schedules.
Whelan asked about UP 12, the reduction-in-force proposal,
and Gordon explained that it is about recalling an employee
into their prior position.
There was discussion about Southcoast’s financial position.
This was a central theme and dispute that arose repeatedly dur-
ing the negotiations and over time became the main focus of the
parties. Relying on publicly available documents, Gordon
maintained that the Hospital was doing well financially, and
had a surplus of nearly $45 million. Whelan and the Hospital
representatives took issue with this. They argued that the Hos-
pital must be (and was by the Hospital) viewed as financially
integrated with the other Southcoast system groups. According
to the hospital bargainers, revenue for work done by Southcoast
physicians’ group employees in the hospitals was recorded on
the Hospital’s financials, not the physicians’ group, but the
physicians’ group’s financials carried the expenses. The physi-
cians’ group in particular had grown—from 30 to 300 physi-
cians and to 1200 total employees in the last 6 years—and the
result, according to the Hospital, was that the Hospital’s finan-
cial statements, viewed in isolation, as a practical matter over-
stated the Hospital’s profitability, and that the finances could
not be considered in isolation. Systemwide, argued the Hospi-
tal, while there was an operating surplus in 2012 of $17 million,
there was an operating budget loss in 2013 of $7.5 million

9 Based on the manner in which she offered this testimony, I ques-
tioned Peirce about whether she could recall Whelan saying this, and
she clarified that she “can’t speak to the specifics of what he quoted,”
but that “it was clear to me that it was for steps, as well as across the
board.” This did not stop her from answering the same question, on
redirect, attributing to Whelan the words, “we were proposing a pay
freeze, and that the pay freeze included steps.” I discount her testimony
on this point.
which grew to $30 million in 2014.
According to Peirce, “our position was that we weren't in a
position to provide increases. And the Union's position was
that we were; that our financial position was such that we
could.” With regard to the Union’s financial proposals, Gordon
said that “his members had taken pay freezes in ’09 and ’10 and
’11, while management continued to get pay increases, staff
had been frozen.” DeJesus testified that “We had been clear
from Day 1 that we—we wanted a pay freeze. We needed a
pay freeze.”
The parties took a caucus for about 45 minutes. After the
caucus, Gordon responded briefly to the Hospital’s proposals.
He said that there would be counteroffers coming on HP 1 and
2. He rejected HP 3 at this time. There would be a counter
forthcoming on HP 4. The Union rejected HP 5–8 at this time.
Gordon said he needed to see the plan design on HP 9. Whelan
said that the Hospital had no concrete responses at this time.
There was a caucus, the parties reconvened, and broke short-
ly thereafter.
December 5 meeting
The parties met on December 5, 2014. They got to the table
at approximately 1:20 p.m. and the meeting ended about 4:10
p.m.
The Hospital presented two “supplemental” proposals. Sup-
plemental proposal HSP 1 was the proposal regarding on-call
pay that Whelan had orally mentioned at the November 25
bargaining session. HSP 1 proposed to amend Article II, Sec-
tion 2.4 (on-call pay) of the collective-bargaining agreement
“[f]or clarification purposes only” by adding a new sentence
stating that “Such pay will begin when the RN arrives at the
Hospital.”
HSP 2 proposed amending article III, section 3.6 of the col-
lective-bargaining agreement by inserting a sentence requiring
a nurse seeking extra shifts to sign up for them: “Further nurses
desiring to be called for additional hours under this Section 3.6
must sign a voluntary staffing needs list that will be maintained
by the nurse manager/designee to be located at the nursing
staffing office.” Whelan said this was a new “concept” to try to
help the supervisors from having to call so many nurses when
they needed to bring in a nurse to work on short notice.
The parties caucused for approximately 25 minutes. When
they returned, and in the context of rejecting the Union’s finan-
cial proposals (UP 1–6), Whelan revisited the issue broached
last meeting about pay freezes in past years. As discussed
above, at the November 25 meeting, in arguing that the em-
ployees should receive a pay increase, Gordon had referenced
that the employees took pay freezes in 2009 through 2011, or
“zeros” as he called it. Whelan now challenged that, saying
that he had researched the matter and that in 2010 and 2011,
employees received step increases, only in 2009 was pay frozen
in a way that no employees received any step increases.
Whelan said there’s “[b]ig differences from a zero wage and a
freeze.” Gordon and Whelan “had a long discussion about job
rate philosophy and how steps get developed, the concepts of
step—steps et cetera,” with Whelan arguing that the “norm” for
steps was to get someone up to a job rate that reflected profi-
ciency in the job and from that point forward “the history of
SOUTHCOAST HOSPITALS GROUP, INC. 11
unionization is that . . . same work, same pay.” Whelan argued
that it was “unusual to have steps all the way,” meaning for a
20-year period. Gordon responded that “steps are the industry
standard” and “don’t count as pay increases.” Gordon “talked
about that those [steps] are previously bargained. That they’re
not pay increases.” He said that it “is $ already in place.”
There was discussion about CEO pay, and the Union’s claim
(disputed by the Hospital) that Southcoast’s CEO had received
a 440 percent pay since 2008, while nurses “took zeros.”
Whelan advanced the argument “that, in fact, people did get
pay increases in ’10 and ’11.” Whelan discussed “the [finan-
cial] situation that we’re in. That economic proposals are key
to us. That we had to right the ship.”
Whelan testified that in this conversation the Hospital used
2009 as the example of the kind of pay freeze (i.e., no general
wage increase and no step increases) that the Hospital was
looking for in these negotiations. He testified that he told the
Union that 2009 was the only year when “the [Union] was
asked to take a true pay freeze,” and what happened in 2009
“was what we were asking for, for this bargaining session, and
that was there was going to be no step increase and no general
wage increase.”
Gordon denied that the Hospital used this conversation to
explain that it was looking for a “pay freeze” like in 2009—i.e.,
with no step increases, or stated this directly in this meeting.
Rather Gordon testified that this debate was, in effect, used by
the Hospital to argue that the employees had not sacrificed as
much or as consistently as Gordon claimed. Jezierski also de-
nied that in this meeting Whelan equated events in 2009 with
what the Hospital was demanding for these negotiations. I cred-
it their testimony.
Notably, neither Mangini nor Peirce offer support for the
claim.
Further, none of the bargaining notes—introduced for seven
meeting participants—corroborate Whelan’s claim that the lack
of steps in 2009 was expressly linked to, or expressly used as
an example of, what the Hospital was seeking in these negotia-
tions.
Whelan’s assertion on this point was less certain under cross-
examination than it had been on direct. Although he had just
testified to it, on cross-examination he would not agree that he
told Gordon the Hospital was looking for “a true pay freeze”
(“No. Not necessarily”) and accused counsel of “trying to put
words in my mouth . . . with the word ‘true.’” Asked whether
he said at the table “what we’re going to do is what we did in
2009,” Whelan answered, “No, I said more than that. I said it
in many different ways. We had a lengthy conversation.” He
then asserted that he told Gordon “what we’re looking for is
what happened in 2009,” but, asked if he said that, responded
“in substance” and said “whether I used the exact words, I
don’t know.” I do not detect deception in Whelan’s answer, but
on this hotly disputed topic, the retreat from an affirmative
statement that he told the Union the Hospital wanted the step
freeze from 2009, to saying that, in words he couldn’t recall, in
a lengthy conversation based on analogy to and distinguishing
events 5 years ago from events 3 and 4 years ago, explains to
me why none of the union committee members, and none of the
bargaining notes, grasped the point that Whelan wanted them to
take.
It is of some consequence here that the entire discussion was
about—not a Hospital proposal—but the Hospital’s rejection of
the Union’s proposal, and that proposal did not involve or
freeze the steps. To be clear, if the question is, on December 5,
did the Hospital know that in its own mind it hoped to freeze
steps, the answer is, probably yes. But if the question is did it
convey this to the Union as on that date, I find that the answer
is no.10
The parties then again discussed the issue that underlay
much of the dispute in these negotiations: the parties’ respec-
tive views of the Hospital’s financial situation. There was dis-
cussion about CEO pay, and the Union’s claim (disputed by the
Hospital) that Southcoast’s CEO had received a 440-percent
pay since 2008, while the nurses “took zeros.” Whelan ad-
vanced the argument “that, in fact, people did get pay increases
in ’10 and ’11.”
Whelan stated that “Southcoast was not in a healthy place”
in order, according to Gordon, “to support his position that they
weren’t in the position to talk about our first six proposals.”
Gordon raised the Union’s view that the Hospital was financial-
ly sound and had significant funds in reserve, which was based
on the Union’s reading of the Hospital’s IRS Form 990 filings.
Gordon also pointed out to the Hospital’s negotiators a state-
prepared audit of Massachusetts hospitals that showed a $45
million operating profit for Southcoast Hospitals Group for
fiscal year 2012. Whelan said that the surplus was from other
areas, not from the Hospital’s operations. Whelan told the

10 I do not credit DeJesus’ testimony (Tr. 425), which was the prod-
uct of purely leading questioning from Whelan, that it was clear to the
Union that the Hospital was proposing a step freeze, or that there was
discussion at the table that the pay freeze in 2009 was “what we were
proposing for this past year.” I do not credit Whelan’s testimony (Tr.
727–728) that in his discussion with Gordon about the “history” of
steps, he stated that pay freeze in 2009 “was what we were asking for,
for this bargaining session, and that was there was going to be no step
increase and no general wage increase.” All of this direct testimony
left the strong impression that Whelan and DeJesus were providing
conclusory accounts of what they meant to say, wished they’d said, or
thought they meant, rather than what was stated. Even the cold tran-
script leaves it uncertain whether they are testifying to the Hospital’s
position or testifying about what was actually stated at the bargaining
table. I am of the view that Whelan and DeJesus’ perception of the
importance of this point overwhelmed their judgment. I also specifical-
ly note that the point is not proved by Miksch’s agreement with
Whelan’s question to her that the Hospital wanted a “real pay freeze,”
nor by her response to a series of questions where Whelan first got her
to agree that she knew as of December 5 that the Hospital wanted a pay
freeze and then that the Hospital’s position (on no specified date) was
that this meant no step increases, because Whelan “kept saying that.”
The record does not support that “Whelan kept saying that,” and fur-
ther, I watched this exchange and was clear to me that Miksch was
confused by the questioning. The herculean efforts that the Respondent
had to go through to try to prove what, were it true, would have been an
easily verifiable (and documented) point, did not enhance its credibil-
ity. I suppose I should add here that, for reasons that become apparent
below, and notwithstanding the weight the Respondent places on the
point, it makes no difference to the outcome of this case whether the
step freeze was proposed orally in the early bargaining sessions or, as I
find, not until March 9, 2015.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
Union that in a future meeting the Hospital would have “their
financial people there” to discuss the financial situation of the
Hospital. Whelan said that the “operational budget [was] not in
a healthy place.”
Whelan added that he “was not saying we have an inability
to pay” and that “interest income is what is keeping things
[a]float.” Gordon said he was “taken a[b]ack” and said but
“you[’re] saying you don’t have an inability to pay”? Whelan
stated, “no [,] we have ability to pay” but he said that the Hos-
pital’s position was that “our financial trend was heading in the
wrong direction and we couldn’t continue in that direction.”
The parties moved on to discussing union proposals other
than the Union’s financial proposals. Whelan discussed the
Hospital’s need for flexibility and the need to have nurses float.
However, Whelan expressed an interest in discussing how the
floating process could be improved.
Whelan question why UP 8 on mandatory overtime was nec-
essary, and Gordon indicated that he wanted to be sure that the
Hospital “was not using the contract as a way around” State law
on mandatory overtime. The parties discussed the Union’s
proposal on scheduling changes (UP 9) and asked for examples
of the problem.
The parties discussed UP 10 regarding elimination of flex-
up. Whelan said that the Hospital needed flexibility and needed
“to be able to match your staffing to the patient volume.” He
rejected the Union’s proposal to eliminate flex-up.
With regard to UP 11, the Hospital said it could agree to (e),
i.e., to pay union committee members for lost time at work due
to negotiations, but rejected the proposal, in that it would not
put it into the agreement. The Hospital said it would consider
the issue in the context of ground rules when the parties began
bargaining. As to (f), regarding releasing local union officials
from work for grievance-arbitration related matters, the Hospi-
tal said it had some latitude on the issue, but would not accept it
as proposed.
There was discussion of the Union’s reduction-in-force pro-
posal (UP 12) and Whelan suggested that displaced employees
could rely on the job-posting process rather than having a right
to return to their previous position if it became vacant.
As to the Union’s successorship proposal (UP 13), Whelan
stated that “successorship is generally covered by law,” and
that, rumors aside, the Tobey Hospital was not for sale. Gor-
don said that the Union wanted a successorship provision in all
its contracts and that it was “a key priority for them[, t]heir
most important proposal.”
After a caucus at approximately 2:50 p.m., the parties recon-
vened at about 3:40 or 3:45 p.m. Gordon told Whelan orally
that the Union was going to give the Hospital a proposal for a
3-year contract with no wage reopener, thus proposing to
change the dates in the duration clause of the agreement and to
delete the reopener provision in the 2012 Agreement. This
was, Gordon testified, consistent with the UP 1, the Union’s
wage increase proposal, which covered a 3-year time frame and
did not anticipate a wage reopener.
Gordon then responded to the Hospital’s proposals. As to
HP 1, Gordon said that the Union was open to having a desig-
nated transition unit but that it wanted current employees to
have the opportunity to go into the program and that the Union
would counter. With regard to HP 4, Gordon was agreeable to
employees needing to have the time off already in the bank in
order to schedule time off, but he wanted to counter by setting
some time limit for managers to respond to employee requests
for time off in the summer. The Hospital withdrew HP 7, re-
garding dental contributions, and agreed that “[w]e would not
have an increase in dental contributions.”
Gordon repeated that he needed a copy of the summary plan
description for the pension. There was discussion of HP 2, the
effort to define weekend shift, with Gordon seeking to under-
stand the problem that the Hospital was trying to fix with the
proposal. Gordon indicated the Union would counter. On the
UP 9, the Union offered a proposal that employees who picked
up an extra shift early in week would not have their regular
shift later in the week cancelled. The Union committee gave
some examples of the problems faced by the nurses in this re-
gard.
There was a discussion of flex positions (UP 10), with union
committee members explaining that flexing was being used for
portions of shifts, or for just a few hours at a time, “like an on-
call system,” and that it would be more tolerable if used just to
cover vacancies or leaves of absences. The meeting then end-
ed.
December 17 meeting
The meeting originally scheduled for December 11 was can-
celled by the Union. Gordon testified that he “believed[ed he]
was required by my boss to attend another union meeting that
they wanted me at.” According to DeJesus, he had been told by
Hospital representatives that in the previous year’s reopener
negotiations, Gordon’s cancellation of meetings had been a
problem.
The parties met again on December 17, beginning the bar-
gaining at approximately 1:30 p.m. In addition to Gordon, the
Union’s committee of Miksch, Jezierski, and Kilpatrick was
present. The Hospital also had its full committee: Whelan, and
DeJesus, but also Conley, Mangini, and Peirce.
Whelan began, stating, in reference to the Hospital’s position
on the Union’s financial proposals that the Hospital’s position
was not changing. He said that economics was critical to the
Hospital and he believed the Union “understood our circum-
stances.”
Whelan then presented a new oral proposal to amend Article
III, Section 3.2 Overtime, as to daily overtime. Under the cur-
rent terms and conditions of employment, overtime pay (pay
and a half) began after eight hours, or, if the shift was sched-
uled longer (typically 10 or 12 hours), when an employee
worked beyond the regularly scheduled shift. This new De-
cember 17 proposal provided that overtime pay would begin
after nine hours, or, in the event of a longer scheduled shift,
after the employee had worked one additional hour beyond the
scheduled time period. In effect, the proposal would convert
what was currently the first hour of overtime pay to straight
time pay. The parties discussed this proposal and the Union
requested “a list of all the nurses and their one-hour overtime”
in an effort to see “what drives this proposal.”
Then Mangini discussed the issue of the flex-time concerns
and employees working partial shifts that had been raised by
SOUTHCOAST HOSPITALS GROUP, INC. 13
the Union in the last meeting. Mangini asked about the prob-
lems the nurses were having with flexing. Jezierski gave an
example of a nurse who was called at 2:30 p.m., “flexed off at
3:00 PM, but then called and told, well, I might need you back
at 7:00 PM” With regard to the Union’s proposal to eliminate
flex-up, Gordon testified:
[It is] very difficult for a nurse or anybody, any individual to
kind of live their life [as described by Jezierski]. I mean a lot
of these are parents, single mothers, single husbands, whatever,
with kids. My rule of thumb with all the hospitals is you can
mess with their pay before you mess with their schedule be-
cause they set their whole lives around the schedule. That is
how important it is. So this was a big issue for the nurses and
they’d like to . . . see it fixed.
The Hospital did not reject the proposal but said that it would
discuss it internally and “see what they could do.”
CNO Conley then talked about the Hospital’s proposal
(HP1) for the designated transition unit and how the Hospital
envisioned it working. The parties discussed whether its staff-
ing with recent graduates would decrease or increase employee
turnover. Gordon told the Hospital that the Union was not
“totally opposed to the concept and that we would submit a
counter to them.”
At some point in this meeting—the record is unclear—but
likely before the first caucus, the Union gave a written proposal
(UP 15) that reflected the oral proposal it had made at the last
meeting, which was a change to the appropriate portion of the
collective-bargaining agreement (Article 14, Section 14.2) to
provide for a 3-year agreement with no wage reopener.
After a caucus, Gordon, in consideration of the Hospital’s
daily overtime proposal, requested the “last year of the first
hour of overtime by unit and by shift.” The Hospital said that it
would obtain the information and get back to the Union.
Whelan turned to the Union’s proposals. Whelan stressed
that “economics were critical to [the Hospital]. That the pay
freeze, the pension, the holiday time were all critical economic
issues to us and that we needed to have that.”
Whelan then provided the Union with a counterproposal on
the floating issue (UP 7), which he read across the table. This
addressed some of the Union’s proposal but ignored other parts.
The Hospital stated that it would identify core competencies
that a floating nurse would have to have in order to be floated
to a particular patient or area, and the Hospital said it would
endeavor not to float an RN twice in a shift. The Hospital also
wanted new graduate nurses—not newly hired nurses—to be
the group that would not be floated for their first 6 months.
According to Gordon, the Hospital’s counter reflected “bits and
pieces of what they were willing to tweak to our proposal, to
make it work.”
As to UP 8, which sought to have the contract guarantee that
the Hospital would comply with State law as to mandatory
overtime, Whelan stated that “we didn’t think that was an issue
here” and rejected it. The Hospital rejected UP 9 that sought to
scheduling changes. On flex-up (UP 10), the Hospital reiterat-
ed that it would be responding at a later time.
On UP 11, the Hospital rejected the Union’s proposal, refus-
ing to put the commitments in the collective-bargaining agree-
ment. It did indicate a willingness to agree to the substance of
the Union’s request on (e), but not in the labor agreement.
On UP 12, the Union’s reduction-in-force proposal, the Hos-
pital said it would counter with a concept: the Hospital told the
Union it was agreeable to the concept of permitting a person to
be recalled to an open prior position, but for a period of 3
months—the Union’s proposal was for an 18-month recall pro-
vision.
The Hospital rejected the Union’s successorship proposal
(UP 13) and said that it would take a look at UP 15, the 3-year
duration clause proposal with no wage reopener.
At that point the Hospital provided the Union with the writ-
ten daily overtime proposal that it had orally conveyed at the
beginning of the meeting.
After that, the parties caucused and did not reconvene to bar-
gain further that day, ending at about 3:30 p.m.
The Union’s December 30 information requests; the
January 30 meeting
By letter dated December 30, 2014, the Union sent an infor-
mation request to the Hospital seeking a range of financial in-
formation. This request was made, according to Gordon, in
response to the Hospital’s contention during the bargaining
sessions that “they were not in a good place financial[ly].”
On the same day, the Union sent another information request
to the Hospital, reiterating requests it previously had made
orally to the Hospital, seeking: (1) a showing by nurse of all
first hour overtime for the past year; and (2) the plan design
documents for the nurses’ pension plan and “a breakdown of
how the Plan works currently, core, employee contributions and
employee match.”
The Union cancelled the meeting on January 6 because Gor-
don had to attend an arbitration for a unit involving another
employer. After that, the Hospital did not want to meet until
January 30, as its human resources department was occupied
conducting a reduction in force of supervisory employees.
The parties met again on January 30. Whelan and DeJesus
were present for the Hospital. For the Union it was Gordon,
Kilpatrick, Jezierski, and Miksch.
The meeting began with DeJesus telling the Union that the
financial information would be forthcoming. Whelan also fol-
lowed up on a commitment he had initially raised in the De-
cember 5 meeting, and told the Union that the Hospital would
have its Chief Operating Officer (COO) Linda Bodenmann
attend an upcoming bargaining session to make a financial
presentation to the Union about the Hospital’s finances. COO
Bodenmann had recently presented the financials to the SEIU
union in their negotiations with the Hospital. DeJesus believed
that Bodenmann’s information had been helpful in those nego-
tiations. (The SEIU negotiations began in approximately De-
cember 2014 or January 2015 and were successfully completed
in October 2015).
As referenced, the competing views of the Hospital’s finan-
cial situation had been a divisive issue in the bargaining. The
Union had requested financial information. The Hospital relied
upon its claims of losses to justify its demand for a pay freeze
and regressive proposals on other financial issues. The Union’s
reading of publicly-available financial documents, including the
990s, suggested to the Union that the Hospital had an operating
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
surplus of $45 million. Whelan had told the Union that the $45
million was from other areas, and that the Hospital was hurting
financially systemwide. The Union had challenged him to
show them more evidence and detail on this. Gordon testified,
there was “[i]nformation that we wanted. You know, they were
claiming that they were hurting financially. We were showing .
. . that they had 45 million. We were basically saying, you
know, Mr. Whelan, you need to explain to us.”
DeJesus then talked about the reductions in force that had
been occurring that month at the Hospital (among nonunit em-
ployees), and used it to emphasize to the Union that
I wanted to be clear, because the Union was taking the posi-
tion that we were not in bad financial shape [but] we wouldn’t
be taking action like this unless we were in tough financial
shape. . . . So my point in saying that was to share with them
that we don't take these decision lightly. That we would not be
asking for a pay freeze if it truly wasn't necessary.”
After an hour-long caucus, the Union presented a counter-
proposal on HP1, the new graduates dedicated transition unit.
The Union’s counterproposal provided for the hiring of “new
RN graduate[s]” into a residency program for up to 3 months,
payable at the step 1 rate under the collective-bargaining
agreement, and provided for incumbent bargaining unit mem-
bers to have the ability to be awarded these positions. The
Hospital discussed with the Union that it had this program at its
other two hospitals, and “we wanted the same situation at To-
bey, otherwise it would impede our ability to recruit at Tobey.”
The Union then turned to its financial proposals (UP 1–6)
and withdrew entirely the evening differential (UP 2, first
item), reduced by $ 0.50 the night differential proposal (UP2
second item), withdrew the weekend differential (UP 3), re-
duced the on-call pay differential by $ 0.50 (UP 4), and reduced
the charge nurse pay by $3 (UP 5), and the preceptor pay (UP
6) by $2.25.
On floating (UP 7), the Union rejected the Hospital’s overall
counterproposal, but agreed with the Hospital’s prior counter
on bullet point 3 of this proposal, that the proposed 6-month
restriction on floating should apply to “new graduates” and not
(as written in the proposal) “Newly hired” nurses. The first two
bullet points of the Union’s floating proposal were still at issue.
The Union wanted UP 8, on following State law for manda-
tory overtime, to remain on the table. As to UP 9, the Union
was waiting for the Hospital’s response on flex positions before
considering changes. As to UP 11, the Union agreed to with-
draw the request for (e), but was waiting for language on (f).
As to UP 12, the reduction-in-force proposal, the Union reiter-
ated that it wanted a bumped employee to be able to return to
their old position.
The Union expressed concern about HP 2, which Gordon
said would result in night employees having no weekend off.
The record suggests that Mangini may have joined the Hospital
bargaining team for this discussion. The Union rejected HP3,
the Hospital’s holiday proposal, and countered on HP4, seeking
to require management to respond to nurse requests for ET time
off within 48 hours. The Union rejected HP5, which proposed
a two-week limit on cashing in of earned time. On HP 6, the
proposed increase in health care contributions, the Union
agreed that the Hospital had the right to implement that in-
crease unilaterally, and, for that reason, questioned why it was a
bargaining proposal. Whelan explained that the Hospital want-
ed to have the current premiums in the contract.
On HP 8, the proposal to eliminate four weeks of FMLA
leave, Gordon again asked for information about this proposal,
this time asking for the cost for the extra month of FMLA
leave. The Hospital told the Union that “it’s a bit difficult to
get,” and described that it would have to determine who took a
leave of absence, determine whether they took a 4thmonth, and
then figure out the cost associated with it.
As to HP 9, the pension formula change, the Union rejected
this. The Union had yet to receive the pension information re-
peatedly requested from the Hospital on November 25, Decem-
ber 5, and again December 30.
After a 40-minute caucus, the parties returned for about ten
minutes. Whelan told the Union that the Hospital was with-
drawing HP 2, the proposed change to defining weekend shifts.
On HP 1, the Hospital said that it would soon propose that there
be a percentage of positions available to incumbent union
members for the proposed transition unit.
The Hospital said it would provide a full and comprehensive
listing of all its outstanding proposals at an upcoming meeting.
Whelan then “reiterated that our position on economics
would not change. That the economics were critical to us; the
pay freeze, the pension, the holiday issues.” In this regard,
Whelan suggested that “it would be helpful if Linda Boden-
mann came in and did a presentation” on the financial situation.
Dates were set for future meetings for February 12 and 17.
The meeting ended.11
February 12 meeting
The parties’ February 12 meeting commenced at approxi-
mately 1 p.m. at the Hospital.
At this meeting Hospital COO Bodenmann joined Whelan
and DeJesus and Bodenmann gave a power point slide presen-
tation on the Hospital’s financial situation.
Bodenmann’s explained that the Hospital’s goal was to have
a 2 percent operating margin each year and that had not been
accomplished in the last 2 years, since 2012. Bodenmann men-
tioned that the Hospital had recently been downgraded by
Moody’s, that volumes were down, that there was cost to revi-
talize the emergency department, and that the lack of flu season
had hurt receipts. Bodenmann’s presentation materials showed
that after operating gains of $17 million and net income gains

11 In a return to a dispute that consumed much of the Respondent’s
energy at trial, and on brief, I note the Respondent’s extensive effort on
brief (R. Br. at 27–29) to contend that Gordon knew, as of the close of
this January 30 meeting that the Hospital proposed a step freeze. Rely-
ing on two pages of cross-examination (Tr. 302–303)—most of which
contradicts the point the Respondent want to make—the Respondent
seizes on a statement by Gordon that he thought on January 30 “that the
Hospital wanted the step freeze because you had it everywhere else.”
But in full context, I think that the Respondent misses the point. The
point is what had the Respondent proposed at the bargaining table. As
Gordon testified, and as I find, the Hospital did not communicate a
bargaining proposal (orally or in writing) for a step freeze until March
9.
SOUTHCOAST HOSPITALS GROUP, INC. 15
of $34 million in fiscal 2012, in 2013 operating losses of $7.5
million were offset by investment income, and in fiscal 2014
the offset of nonoperating gains to operating losses of over $30
million left a net income loss of $7.7 million. DeJesus called
this a “downward slide . . . and we just couldn’t continue in that
direction.” According to DeJesus, based on efforts taken by the
Hospital (such as layoffs, pay freezes for the physicians’’ group
and at the other hospitals), Bodenmann told the Union that the
Hospital was “heading in the right direction.” According to
Gordon, Bodenmann “was just going over telling us this is why
they felt they didn’t have the ability to give us our financial
increases that we were requesting through our proposals.”
After Bodenmann’s presentation, and a half-hour caucus, the
parties reconvened. Whelan presented what DeJesus described
in his testimony as “a comprehensive position of where we
stood” on both the Union and Hospital’s proposals. As to the
Union’s financial proposals (UP 1–6), Whelan told the Union:
“we’ve made it clear what our economic position is. You just
heard it. We are very strong on our economic position. We
won’t be changing our economic position. These are critical to
us. We need the pay freeze. We need the pension. We need
the holidays.”
The Hospital’s comprehensive proposal included no written
proposal to freeze the steps, or any written proposal on wages
at all.
On UP 7, the Union’s proposal to limit floating, Whelan
reoffered the Hospital’s counterproposal from the previous
meeting but the parties remained divided over the Union’s de-
mand that per diem employees float first and limiting RN float-
ing to once per shift.
Whelan said that the Hospital could “get there in concept”
with regard to UP 8, but was concerned about the Massachu-
setts regulations that the Hospital would be contractually agree-
ing to abide by. Later that session the Hospital provided some
language it wanted added to UP 8. The Hospital said it would
“hold” (i.e., “we’ll continue to talk about it” and get back to the
Union) on UP 9, 10 and 11 (f).
With regard to UP 12, reductions in force, the Hospital indi-
cated that this could be worked out, but the Hospital held to its
offer of a 3-month period to recall displaced nurses to their old
position should a vacancy arise.
On the Union’s successorship proposal (UP 14), the Hospital
said it did not yet have a position but was working on it through
the Hospital’s general counsel, and would get back to the Union
on this issue. As the Respondent points out on brief (R. Br. at
33), this was the first time in the negotiations that the Hospital
had indicated willingness to discuss the successorship proposal.
As to the Hospital’s proposals, Whelan mentioned that the
Hospital had amended its previous position. The Hospital then
withdrew HP 2, the proposal to clarify the weekend shift. The
Hospital said it was “holding” the same position on HP 3, 4,
and 5. The Hospital had withdrawn HP 7 (dental premium in-
crease) in earlier meetings. There was a tentative agreement on
HSP 1 (on-call pay). The Hospital withdrew the daily overtime
first hour proposal it had put on the table December 17.
Gordon asked the Hospital if it had already acted on its pen-
sion proposal and changed the pension contribution benefit to
eliminate the 3 percent automatic employer contribution. Gor-
don was aware that this had been implemented elsewhere in
Southcoast, and the Hospital had originally suggested it had a
right to unilaterally implement this provision. The Hospital
representatives said that they were not sure, and would let the
Union know. (DeJesus testified that he learned that the change
had not been made and reported this to the Union.)
Gordon mentioned that it was “bizarre” that the Employer
was proposing a change in health insurance that it already had a
right to implement. Whelan repeated, as he had before, that
“we were just clarifying what the numbers were.”
The parties caucused for about 70 minutes. When the parties
reconvened, the Hospital provided some additional language on
UP 8, on complying with the State law on mandatory overtime.
After some more discussion on the reduction-in-force language,
the parties set dates for further meetings: February 27, March
4, 9, and the parties agreed that the Federal mediator would join
the meetings on March 4. The meeting adjourned at approxi-
mately 4:25.
At some point during this meeting, Whelan offered to have
Bodenmann meet with a financial consultant chosen by the
Union. Whelan told the Union that the Hospital “would be
happy to have [Bodenmann] get together with anybody that [the
Union] would have on their side to walk through the financials
and prove their understanding of our financial position.”
Gordon then requested a copy of Bodenmann’s slide presen-
tation.
Cancellation of February 17 and 27, and March 4 meeting
At the conclusion of the January 30 meeting, future meetings
were scheduled for February 12 and 17. The February 12 meet-
ing is described above. The February 17 was cancelled. The
meeting did not go forward at Gordon’s request, but the record
is unclear when or why this happened.
At the conclusion of the February 12 meeting, the parties
agreed to future dates for meetings, including February 27.
The morning of February 27, Gordon was informed that two
of the three employee union committee members were not be-
ing released from work to attend negotiations. In response,
Gordon emailed the Hospital’s HR Director Hess at 9:13 a.m.
stating that “The Hosp[ital] is unable to release 2 of my 3
committee members so we are cancelling negotiations for to-
day.” Gordon testified,
I wasn’t going to go to the negotiations with just one commit-
tee member. . . . We try to set the dates in advance to try to
help the Hospital release the employees. These are nurses so
it involves patient care. . . . If I get a call that morning saying
two of them can’t be released it’s usually for good reason, so I
canceled the negotiations.12
Hess responded to Gordon only a few minutes later, stating:
“Janet [Peirce] is working to have the committee members
released today, please do not cancel. Thank you.” At 9:35 a.m.
Peirce wrote to Gordon, confirming that two of three committee

12 The parties’ ground rules for negotiations provided that
Southcoast will grant paid release time, subject to its operating needs
and subject to the following, for up to 3 bargaining team members
who are scheduled to work during all or part of the period of a sched-
uled collective bargaining session . . . .
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
members had been approved for release, and that “[t]hey con-
tinue to work on releasing Sharon [ ] as well. Hope that
helps. Thanks.” However, Gordon maintained that he had
already told his people that it was canceled and stuck to the
cancellation.
Gordon also indicated that “we need the financial infor-
mation we requested last meeting so we are prepared to discuss
anything else.” This was a reference to the slides of Boden-
mann’s financial presentation that the Union had requested at
the February 12 meeting. Whelan mailed copies of Boden-
mann’s slide presentation to Gordon that day.
The parties’ next meeting was set for March 4, but Gordon
had to cancel this meeting due to a medical emergency involv-
ing his elderly mother.
March 9 meeting
The parties met again March 9. The meeting got underway
about 1:40 p.m. The Federal mediator, Paul Chabot, attended
bargaining for the first time.
Whelan started by stating that he recognized that this was a
tough situation but that the operating expense problem had to
be corrected, and the Hospital was “heading in the right trend,
right direction.” Whelan then handed out a comprehensive
proposal across the table, titled “Hospital[‘s] Modified Pro-
posals and Counterproposals.” This March 9 set of proposals,
which had signature lines for the Union and Hospital at the
bottom, provided the following 12 numbered paragraphs, which
I describe here:
1. HP 1 (new grad unit and lower pay) was withdrawn, pro-
vided that the Union agreed with the Hospital’s modification
to UP 7 (as discussed below).
2. In place of UP 7 on floating, the Hospital counterproposed
the following addition of a new section to Article II, Section
2.11:
Floated nurses will receive a patient assignment within
his/her nurse competencies. When floated, nurses will
be provided with an opportunity to become familiar
with the Unit to which they are floated. The Hospital
will endeavor to avoid floating a nurse more than once
per shift. New graduate nurses will not be required to
float until they have completed six (6) months of em-
ployment.
3. HSP 1, the on-call pay provision; amended to add a new
third sentence to the first paragraph of Article II, Section 2.4,
but with the word “RN” changed to “Nurse” so that the pro-
posal now read as follows: “Such pay will begin when the
Nurse arrives at the Hospital.” The parties had a tentative
agreement on this language already.
4. UP 8, the Union’s proposal to have the Hospital comply
with state law on mandatory overtime, was now counterpro-
posed by the Hospital—with the following parenthetical ma-
terial added:
The Hospital will comply with Massachusetts General Law
and Massachusetts regulations (specific to private, acute-care
hospitals) on Mandatory Overtime. (Emphasis added.)
5. UP 9, the Union proposal seeking advance notice of sched-
ule changes, was counterproposed as follows (Article III, Sec-
tion 3.4):
Time schedules and days off will be posted two weeks
prior to each schedule period. It is understood that such
schedules of control hours will not may be changed unless
it is to deal with an to meet emergency or upon mutual
agreement. or special conditions necessary to properly
staff the Hospital. Nurses will be notified of schedule
changes by the Nursing office 48 hours in advance when-
ever feasible.
6. HP 3, Article V, holidays. This proposal remained the
same, effectively changing Patriots’ Day and Columbus Day
from “paid holidays” to “floating holidays.”
7. On HP 8, the Hospital continued to propose deleting Article
VIII, Section 8.15 to delete the extra four weeks of FMLA
leave.
8. As to the UP 12, reduction in force, the Hospital counter-
proposed adding the following language at the end of Section
9.8(b):
If the specific position (unit, shift and hours per week) for
which a nurse was displaced due to layoff/bumping becomes
available within three (3) months from the initial layoff that
caused the nurse to be displaced, the displaced nurse will have
the first option to return to that position.”
9. As to UP 13, the successorship proposal, the Hospital wrote
“(To be determined.)”
10. As to HP 9, relating to pension contributions, the Hospi-
tal’s proposal now stated:
For clarification purposes only: The pension formula
will be amended effective __________, 2015 to pro-
vide that there will be no core contribution and a 6%
matching contribution by the Hospital.
11. The Hospital added a written proposal, Article II, Section
2.1 Minimum salaries, stating,
There will be no step increases beginning March
[ ], 2015 and ending on March [ ], 2016.
12. As to UP 15, Article XIV, Section 14.2—Duration and
Renewal, the Hospital’s proposal stated: “TBD”
After providing this “comprehensive” proposal, the parties
went into caucus.
Gordon testified that the step freeze proposal (item 11,
above) “really caught” the committee’s eye. Union committee
member Jezierski testified that she was “shocked” by this pro-
posal, because step proposal “was never part of the Hospital’s
proposal. We were the only one who had put in financial pro-
posals and none of them dealt with step raises.”
The parties stayed in separate caucus rooms for the bulk of
the afternoon, with the mediator traveling between rooms to
speak to the parties. The parties returned to the table at approx-
imately 4:15 p.m.
When the parties returned from caucus, Whelan provided the
Union with an amended version of the “Hospital[‘s] Modified
-
SOUTHCOAST HOSPITALS GROUP, INC. 17
Proposals and Counterproposals” that he had provided at the
beginning of the session. This version added dates for the con-
tract duration, the step freeze, and the pension proposal.
On item 12, the Hospital now proposed that the contract con-
tinue through September 30, 2015, just six and a half months
into the future.
On item 11, the step freeze proposal, the Hospital now pro-
posed that the step freeze would begin April 1, 2015, and con-
tinue through March 31, 2016, thus proposing the step freeze
to begin in three weeks, and to continue six months beyond
the proposed term of the labor agreement.
On item 9, the pension proposal, the Hospital now proposed
that the pension contribution formula would be amended as
proposed effective April 1, 2015.
Whelan then told the Union that “this was our complete posi-
tion,” and adding that, “we’re not shutting down discussion on
successor language, but we’re at our bottom line on the other
proposals.” The Hospital indicated that it was “working
through some language” on successorship.
Gordon told Whelan that the Union felt that this proposal
item 11 (the freezing of step increases) violated the parties’
ground rules and “was an illegal proposal” and “that we were
contemplating a ULP.” Whelan stated that “it’s only a counter-
proposal to your wage proposal.”
At some point in this meeting, Gordon asked again, with re-
gard to item 7 (HP 8), the elimination of the extra month of
FMLA leave, how many people used this benefit over the last
year. The Hospital said that “[t]hey were gathering the infor-
mation.”
Gordon also questioned why the Hospital’s pension proposal
was now prefaced with “for clarification purposes only.” The
parties had previously discussed whether this proposal was
merely notification of what the Hospital intended to do or an
actual proposal to the Union. The Hospital had initially told the
Union that, like the health insurance premiums, this change was
an action that the Hospital could take unilaterally, so it was not
so much a proposal as notification. The Union disagreed with
this and maintained that changes had to be bargained. Gordon
wondered if this language signified a return to that dispute.
Whelan’s response is not contained in the record.
With regard to the reduction-in-force proposal, Gordon
countered the Hospital’s 3 month proposal to return a bumped
employee to a prior position, with the suggestion that the par-
ties use 1 year, which would equal the length of time that a
laid-off employee had recall rights under the labor agreement.
At some point in this meeting there was discussion of getting
the finance people together, so that Bodenmann could meet to
discuss the Hospital’s financial situation with a financial expert
retained by the Union.
The parties set March 20 for the next bargaining date.
March 20 meeting
This session began at approximately 2:45 p.m. The Union
was represented by Gordon, and employees Miksch, Jezierski,
and Kilpatrick. The Hospital was represented by Attorney
Whelan and DeJesus.13 The mediator was also present for this
meeting.
Gordon said that the parties need to get their “financial peo-
ple together” and that the Union was working on that. Gordon
said that Julie Pinkham, the executive director of the Union,
was arranging for a financial expert to be retained by Union,
and that “it would happen ASAP.” But Gordon added that
while waiting that there’s “not a lot to talk about.”
Whelan said, “so there’s no change in your position.”
Whelan said he realized the “financial talks [between experts]
were important to help [the Union] understand, but we knew
the financials and the financial discussion would not change our
position.” Whelan said, the “[r]eality is the reports will not
change our position. We know what we know.”
Gordon said, “well, we need to know the facts. We’re will-
ing to take zeros at other places, but we don’t see that here on
our financials. And there’s floating and successorship.”
Whelan responded that on successorship the Hospital would
respond to the Union’s proposal during the upcoming meeting
to discuss financial issues. The parties discussed when the
financial meeting would occur.
Gordon said quickly and the Hospital was also eager to have
the meeting soon. Gordon said that the Union “[m]ay take a
softer stand with [its] proposals,” it “[d]epends on [the] finan-
cial positions.”
The parties caucused. Once back at the table Whelan told
the Union he had an amended proposal. He also told the Union
again that the Hospital wanted to get the financial people to-
gether to help them understand the financial situation.
The Hospital distributed its amended proposal, and told the
Union this was its “final” proposal. The proposal was the same
“comprehensive” proposal made at the March 9 meeting, with
the following two changes. This proposal responded to the
Union’s successorship proposal by counterproposing the fol-
lowing language for article XIV, section 14.2:
This agreement shall be binding upon the parties hereto and
their successors. The Hospital shall give notice of the exist-
ence of this Agreement to any purchaser. The hospital will
bear no liability as a result of this provision.
Second, on the floating issue, the Hospital proposed:
The parties will enter into a side letter that provides: “Per Di-
em nurses on SK2 and SK3 will be floated before regular full-
time or regular part-time nurses. This agreement will expire
September 30, 2015.”
The Union told the Hospital that the proposed successorship
did not meet what the Union needed, and that it would develop
additional or better language to counter with. The Hospital said
it would listen but that “there [were] no promises in negotia-
tions.” As to the new proposal on floating, the Union said it
wanted this in the floating section of the contract, not in a side
letter, and it wanted the agreement to cover the whole hospital,
not just the two units mentioned (SK2 and SK3, which are the

13 Peirce was not at this meeting. Mangini indicated that she was at
all the meetings, but there is no indication in the bargaining notes or
other evidence that she (or Hess) were present at this meeting.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
med/surgical floors in the hospital). The Hospital said that this
was the best they could offer on this issue.
The parties went into caucus after the Hospital distributed
the amended proposal and in that setting there were discussions
with the mediator. The mediator suggested that the parties
press ahead with plans to have a meeting between financial
experts.
The parties did not return to the table that day. The meeting
ended for the day.14
Cancellation of March 31 meeting; union retention of consult-
ant; further response on union information requests
The next meeting was scheduled for March 31. On March
30, Gordon emailed Whelan notification that the Union was
cancelling the negotiations “until our financial people sit down
and meet with the hospital’s financial people.” Whelan re-
sponded sharply:
We do not agree to cancel negotiations tomorrow. This will
be the fourth session that you have unilaterally cancelled. Our
finance person has been available for weeks to meet with
yours, and remains available. We will be at the table at the
agreed upon time and hope that you change your mind. We
have given you a final proposal and we await your response.
This process has gone on for too long and we need to bring it
to closure.
Gordon responded as follows:

14 The testimony at trial contained one sharp dispute about an inci-
dent Whelan claim occurred on March 20, or perhaps, on March 9,
Whelan was not sure. Whelan testified that at some point on one of
these days he had a one-on-one meeting with Gordon in the hallway
outside the negotiating room. Whelan testified that at this hallway
meeting he told Gordon “I’m in a tough spot here, but . . . we cannot
do a deal without . . . the wages being frozen, then pension, and the
holiday thing.” Whelan then testified that Gordon told Whelan, “well,
you know, I can’t do a deal with those.”
Gordon adamantly denied saying this. Gordon explained the hall-
way discussion as follows: “our position hadn’t changed from what I
said across the table to him. Out in the hallway I said to him, if they
could find a way to move on some of our important items, we could
soften our position on some of their items. That was the crux of our
discussion.”
I believe Gordon. In addition to his credible demeanor, the state-
ment attributed to him by Whelan was inconsistent with the position
Gordon expressed at the bargaining table both before and after this—
there he linked the Union’s positions to his view of the Hospital’s fi-
nances, which were going to be discussed by the Hospital and the fi-
nancial expert being retained by the Union, and then reviewed. (I dis-
cuss this at some length, below.) I recognize, but am not concerned
that when questioned about this hallway meeting on cross-examination,
before Whelan had even testified about it, Gordon did not instantane-
ously remember what was discussed in a hallway meeting, described by
Whelan as occurring either on March 9 or 20. He was surprised by the
question and did not recall. But after Whelan testified about the meet-
ing, Gordon testified on rebuttal that he did remember the conversation
Whelan was referencing and denied saying that he could not reach
agreement. I do not find that suspicious, as urged by the Respondent.
Rather, I think that Whelan refreshed Gordon’s memory through his
questioning and through Whelan’s own subsequent testimony. I credit
Gordon as to what was stated in this hallway meeting.
While I appreciate the fact that South Coast wants to bring
this negotiations to closure, the MNA will not just settle this
contract without doing its due diligence to secure a fair and
equitable contract. The cancellation of sessions by either side
is just part of the process. We set dates weeks and sometimes
months in advance and yet my negotiating team members
have difficulty getting released on time almost every time.
The Union has requested information on a number of things
and have yet to receive them, for example; Pension Plan de-
sign document and a list of nurses who have utilized the
FMLA extension language over past year. I was on vacation
last week which you and your team were aware of, so not
much was going to happen while l was away, just like if you
were away. The parties have agreed to have their Financial
people sit down and review South Coast’s financials so that
the MNA is in a better position to understand South Coast[‘s]
position that it cannot give the nurses any kind of wage in-
crease. As I have stated both at the table and to you on the
phone the union cannot respond to any package offer until we
have reviewed the Hospital[‘]s finances. In regards to your
statement that the process has gone on long enough, what is
long enough? We have had a total of seven (7) sessions, while
requesting mediation after only five (5) sessions, something
I've never seen in my thirty plus years of doing this.
Let me reiterate “we ARE cancelling negotiations for tomorrow
3/31/l5.”
As Gordon pointed out in his testimony, the parties had dis-
cussed on March 20, moving forward to set up the meeting with
a union-retained financial expert. Gordon testified that the
Union was looking to hire “somebody who was an expert in
hospital finance.” Within a couple of days of this email ex-
change the Union’s executive director had retained an expert in
hospital finances to work for the Union. The consultant was
Fred Hyde. Hyde is a professor of business at Columbia Uni-
versity, a physician, an attorney, and experienced in hospital
finance issues.
On April 1, Whelan sent Gordon the following email, stat-
ing:
As a follow[-]up to my voicemail from yesterday, please call
me this morning regarding the finance meeting and the next
negotiating session. Also, although we could not find an in-
formation request, here is the pension SPD and an outline of
the changes that have already been put in place for other em-
ployees of the system. The extended medical leave infor-
mation is being gathered.
As stated in the email, attached was information on the Hos-
pital’s pension plan for employees and an information sheet
detailing the changes already implemented at the other hospi-
tals, the same changes proposed for the Tobey nurses bargain-
ing unit. Although not the old plan information (i.e., the cur-
rent plan for the bargaining unit employees) Gordon testified
that this information was responsive to the Union’s pension
information request, which had been made orally in the No-
vember 25, and December 5 meetings, and made in writing on
December 30, and in the March 30 email.
No one from the Hospital ever followed up with the Union to
provide the requested FMLA leave information. As of the
SOUTHCOAST HOSPITALS GROUP, INC. 19
hearing, the information had not been provided.15
April 8 financial meeting
By April 1, Whelan had suggested that the parties’ have their
“financial experts” meeting on April 8. Gordon agreed.
The meeting took place as scheduled, April 8. Present for
the Hospital were Attorney Whelan, DeJesus, and COO Bo-
denmann. Present for the Union were a union researcher, Ni-
cole Roach, Gordon, and the Union’s retained expert, Fred
Hyde.
The meeting became contentious immediately, primarily be-
tween Hyde and Bodenmann. Bodenmann suggested that she
go through her financial presentation for the group and Hyde
said that “he didn’t need that” and was not interested in that.
Hyde asked for copies of the Hospital’s audited financial state-
ments. Bodenmann was “affronted,” and commented that the
Union “should have put the request in before we had the meet-
ing” and reviewed them in advance. Bodenmann and Hyde
argued about this. Bodenmann had copies of the audited state-
ments with her at the meeting. After some argument, and Gor-
don’s intervention, she agreed to provide Hyde with copies of
the audited statements. She provided him a 41-page document
covering fiscal years 2012–2014. This was the first time in the
negotiations that this financial information had been provided
to the Union.
The parties caucused. When they reconvened, Hyde and
Bodenmann clashed over whether it was appropriate to consid-
er the finances of just the hospital portion of the Southcoast
system or, as the Hospital maintained, the entire system’s (i.e.,
hospital, physicians’ groups and other entities) finances should
be considered as an integrated entity. They both cited account-
ing standards. Hyde argued that the Hospital’s financial prob-
lems related solely to the physicians’ group, and he asked when
the Hospital had taken over the billing for the doctors. Hyde
criticized the assumption of this obligation by the Hospital.
According to DeJesus, Hyde “agreed to disagree on how [the
financials] should be presented,” but acknowledged that it made
sense, given healthcare reform that the Hospital had moved to
increase hiring of physicians. However, Hyde suggested that
the financials were presented in a way that “prov[ided] some
financial benefit to physicians,” and Bodenmann “took great
umbrage at that.”
DeJesus testified that after much back and forth on financial
accounting matters, Hyde stated that the Hospital
should in any event respect our nurses, and treat them respect-
fully. I picked up on that. I had been silent up to that point,
but I picked up on that and said I agree with you and we do
respect our nurses. And out of respect for our nurses, I said to

15 At trial Whelan displayed a dismissiveness towards the Union’s
FMLA information request. He testified that “I wanted to get [Gordon]
the information on the FMLA extensions, just so that couldn’t keep
saying that [he didn’t have it].” Whelan testified that he “never had the
sense” that the information was important to Gordon. As to why the
information was never provided, Whelan testified that he could not
recall “whether it was because we simply forgot about it, or whether it
was just we couldn’t gather it.” In any event, Whelan testified that “we
certainly intimated that” the information would be provided and never
told the Union that the Hospital would not provide it.
John [Gordon], that we need to get a date to settle this. To get
all this done. And he made a statement that of course we
could get a date and I said, well, you've canceled four differ-
ent meetings. He said his mother was sick for one of those. I
said I'm sorry about that, but there's been a series of cancella-
tions here. It's not fair to the nurses for this to continue to go
on. You know what our position is.
DeJesus also testified that Whelan joined in this exchange at
the end of this meeting and told Gordon, “you know where we
stand. We’ve given you our final proposal. And we need to
resolve it.”
The foregoing exchange is undisputed. Sharply disputed is
DeJesus’ further testimony that the exchange included Gordon
referencing “impasse” and expressing intransigence on the
Union’s economic positions. According to DeJesus:
[Gordon] said, what are you going to do, take us to impasse?
Meet with us and take us to impasse? I said we're going to
meet with you. If we can't get to resolution we will go to im-
passe. And that the nurses should know how they're going to
be paid on Patriot's Day with some advance notice.
DeJesus further testified, with prompting by Whelan, that
Whelan told Gordon “that any deal we did had to include a pay
freeze. It had to include the pension. It had to include the holi-
days. And that his response was he would not do a deal that
included a pay freeze or the pension or holidays, given our
financials.”
Gordon flatly denied these comments were made by him.
I won’t say it is an easy credibility determination—and I def-
initely do not believe the alleged conversation carries the sig-
nificance that, based on its brief, the Respondent believes it
does—but I discredit the testimony that there was discussion of
impasse at the end of this meeting and I discredit the testimony
that Gordon said “he would not do a deal that included a pay
freeze or pensions or holidays, given our financials.”
First of all, Gordon flatly denied these comments were made
at this meeting, and while I found DeJesus generally to be a
good and credible witness, I feel the same way about Gordon.
Roach, the union researcher who attended the meeting also did
not recall these comments—she recalled a discussion at the end
about cancellations, but none of the rest of it—but her corrobo-
ration of Gordon appeared mostly to be based on a lack of
memory rather than sureness that the conversation did not oc-
cur. Whelan’s corroboration of DeJesus on impasse was not
convincing. He testified that he “didn’t remember exactly what
was said, but the word ‘impasse’ was used.” Whelan testified
that he thought “originally [Gordon]” used the word impasse
but “I’m not certain of that.” He recalled DeJesus saying
“something to the effect, yes, we will go to impasse and we’re
going to get this . . . done before Patriots’ Day.” Whelan also
claimed that in the conversation he said “we’re not going to do
a deal without pay freezes,” to which Gordon said: “something
like that’s not going to happen, or we‘re not going to do a deal
with those.” That is not the way the credible evidence shows
that Gordon framed the Union’s economic position.
In resolving this dispute, I cannot help but note that through-
out the trial, DeJesus, and then Whelan had a tendency to at
least appear to be testifying with an eye toward the Respond-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD20
ent’s legal theories. It could not help but harm their credibility.
But most important to my credibility resolution, as to this very
conversation, we have DeJesus’ sworn pretrial affidavit, exe-
cuted June 17, 2015, just 2 months after the meeting in question
(and over 5 months before his testimony). This pretrial affida-
vit specifically recounts not just the events from the April 8
meeting but this conversation. However, it contains no refer-
ence to impasse or to Gordon’s expression of intransigence on
the Hospital’s proposals. DeJesus’ affidavit states:
At the end of this [April 8] meeting, Hyde said we
needed to treat our nurses with respect as well as we do
our doctors. I said I agreed wholeheartedly, which is why
we need to come to an agreement. We’ve been negotiat-
ing for months. We gave you our financial information on
February 12th and here we are on April 8th, you've had to
cancel meetings, we've given you our final position, you
know that Patriot's Day is coming Up; and we want to re-
solve these issues. Gordon got upset, he said his mother
was sick, that’s why they cancelled. I said I understood
that, but we needed to get this resolved. I told Gordon we
needed to get another date.
I don’t believe another date was set at this time, but we
did schedule a session subsequently for April 15, 2015.
While the Respondent dismisses the significance of the
omission, there can be no doubt that it provides a classic exam-
ple of impeachment evidence. One need look no further than
the Jencks case itself to see the value that the Supreme Court
puts on such omissions in the weighing of credibility.16
For sure, the specificity and context of the statement must be
considered in assessing the weight of the omission—the context
must indicate a probability that the facts would have been in-
cluded if they were true. But that is, I conclude, the case here.
DeJesus’ statement recounts not only the specific meeting
which the disputed trial testimony covered but the specific con-
versation that occurred, by all evidence, as the meeting was
ending. Moreover, by the time the affidavit was given in June,
the Respondent’s legal theory of this case—as to impasse and
as to the alleged intransigent bargaining position of the Un-
ion—had been well-developed and articulated by Whelan in his
lengthy position statement submitted in May to the Region
during the investigation of this case. Frankly, it is hard to un-
derstand why DeJesus’ account of this very conversation in his
affidavit would not contain reference to the alleged discussion
of impasse, and to Gordon’s display of intransigence, had they

16 As the Supreme Court explained in Jencks v. United States, 353
U.S. 657 (1957), its seminal decision requiring production of pretrial
statements:
Every experienced trial judge and trial lawyer knows the val-
ue for impeaching purposes of statements of the witness recording
the events before time dulls treacherous memory. Flat contradic-
tion between the witness' testimony and the version of the events
given in his reports is not the only test of inconsistency. The omis-
sion from the reports of facts related at the trial, or a contrast in
emphasis upon the same facts, even a different order of treatment,
are also relevant to the cross-examining process of testing the
credibility of a witness' trial testimony.
(Emphasis added.)
occurred as DeJesus and Whelan testified they occurred.17
As is often the case, there is no way to be certain as to how
to resolve this credibility dispute, but given all the evidence,
including the credited denial of Gordon, I find that the disputed
discussion of impasse and Gordon’s alleged statement that he
would not agree to a deal that included the Hospital’s terms, did
not occur at this meeting.
April 15 meeting; declaration of impasse and implementation
Either near the end of the April 8 meeting or in subsequent
conversations, Whelan pressed Gordon for a date for the next
meeting. Gordon told Whelan,
I can give you a tentative date, but until I have the report back
from Mr. Hyde I don’t know where I can go with this. Be-
cause I wanted to get the report from him. . . . So I asked
[Whelan] to wait, but [Whelan] said no, we need to get a date.
Gordon testified that he asked Whelan if this was “because
of the holiday. He said, yes, you’ve got it correct.”
The afternoon of April 14, Gordon sent Whelan an email
stating: “I won’t have the report till next week. Not sure it’s
worth meeting tomorrow.” Whelan responded: “we need to
meet. We will see you in the morning.” Gordon responded,
“Why do we need to meet? I explained when we set this meet-
ing it was tentative.” Gordon also testified that he orally told
Whelan that he “needed the report” from Hyde before he could
negotiate further.
The parties convened April 15. Gordon and the union com-
mittee (absent Miksch who had resigned her duties) were pre-
sent for the Union. Whelan and DeJesus were there for the
Hospital. The mediator was present, and the parties began by
meeting separately with the mediator.
The Union developed a “package” counterproposal, which it
conveyed to the mediator verbally and, for some portions, with
handwritten wording. (Gordon indicated he would follow up
with a typewritten version.)
The new “package” proposal incorporated the Union’s exist-
ing proposal with a reduction in wage demands from 5 percent
each year to 4 percent each year. It provided for adjusting the
night differential to $5, the on-call differential to $5, the charge
RN to $3, and the preceptor rate to $2.75. The Union’s pro-
posal dropped UP 11(e), which was the proposal for paid time
for the union negotiating committee to attend contract negotia-
tions, but retained UP 11(f) relating to paid time for union offi-
cials to attend union activities, such as meetings and arbitra-

17 The Respondent points out (R. Br. at 47) that “a Board agent
drafted that affidavit—not Mr. DeJesus (or his counsel)” and the affi-
davit “certainly does not capture everything that he said to the Board
agent.” However, while drafted by a Board agent, the statement is
sworn to by the affiant. More to the point, if DeJesus ever told the
Board agent about the additional comments, there was no suggestion of
that by DeJesus at trial. I note that the concluding paragraph of the
affidavit states in bold type:
I have read this Confidential Witness Affidavit consisting of 15 pages,
including this page, I fully understand it, and I state under penalty of
perjury that it is true and correct. However, if after reviewing this affi-
davit again, I remember anything else that is important or I wish to
make any changes, I will immediately notify the Board agent. [Em-
phasis added.]
SOUTHCOAST HOSPITALS GROUP, INC. 21
tions.
In addition, one of the “biggest [changes] obviously [was]
the flex up” which was “brand new.” The Union offered an
“intricate” and “comprehensive proposal on flex up” (UP 10)
that provided that instead of eliminating flex-up, the article
would be substantially rewritten, “fixed to make it work proper-
ly.”18
The Union accepted the Hospital’s proposal (set forth in the
March 9 and March 20 “comprehensive” proposal) on on-call
pay, a matter on which the parties already had a tentative
agreement. With regard to the Hospital’s counter to the Un-
ion’s UP 8 on mandatory overtime, the Union indicated “we
could probably live with this” but needed clarification of what
was intended by the Hospital’s addition of the parenthetical:
“(specific to private, acute-care hospitals).” As to the reduc-
tion-in-force proposal, the Union counterproposed, as it did
orally at the March 9 meeting, that employees retain the right to
return to a job they had been bumped or laid off from for one
year (countering the Hospital’s 3-month proposal for returning
after bumping).
On successorship, the Union counterproposed with new lan-
guage. The Union’s new proposal included the language pro-
posed by the Hospital but added a new sentence after the sec-
ond sentence and before the third, so that the Union’s succes-

18 The text of the Union’s newly proposed April 15 UP 7 stated:
7. Article V) Section 4. t Flex-Up Positions Page 10
Flex nurses are nurses who have agreed to be regularly employed to
work in either the 32-08 hours per week flex or 24-08 hours per week
flex categories. Flex nurses generally will work 32 or 24 hours per
week. However, based upon the Hospital's patient care requirements,
as determined by the Hospital a flex nurse may be required to flex
her/his hours up by either 8 hours or 12 hours for a 12 hour nurse. The
Hospital will not flex a nurse down below her/his base 32 or 24-hour
commitment.
(b) Nurses in flex positions will be paid based on their actual
hours worked and will be eligible for earned time based on their
actual hours worked. but will be eligible for medical and dental
insurance benefits on a full-time (i.e. 40 hours per week) basis for
32-08 hour flex nurses and on a 32-hour per week basis for 24-08
hour flex nurses.
(c) The Hospital reserves the right to terminate any flex nurse
position, in which event the affected nurse will revert to his/her
base schedule (32 hours or 24 hours per week) for all purposes in-
cluding insurance benefits, and the reduction in force and recall
provisions of this Agreement shall not apply.
(d) A nurse in a flex position shall have his/her schedule ad-
justed up by not more than 8 hours per week, or up by not more
than 12 hours per week in the case of a nurse scheduled to work
12-hour shifts. The stated hours of the position shall be included
in the job posting.
(e) The Hospital does not guarantee how often; if at all, a
nurse in a flex position will work 8 or 12 hours beyond his/her
base hours, however, the determination to flex-up shall be made
prior to the schedule being posted and the nurses flex schedule
cannot be changed once posted unless the RN volunteers. In addi-
tion to his/her flex hours, a nurse in a flex position may volunteer
or may be required, to work overtime.
Flex positions shall not constitute more than 20% of bargaining unit
positions on an FTE basis per unit. For purposes of calculating FTE
status under this paragraph, a 24-08 hour flex position shall be a .60
FTE and a 32-08 hour flex position shall be a .80 FTE.
sorship proposal now read:
This agreement shall be binding upon the parties hereto and
their successors. The Hospital shall give notice of the exist-
ence of this Agreement to any purchaser. The Hospital will
include as a term of the sale that the purchaser will honor/or
accept the current Collective Bargaining Agreement. The
Hospital will bear no liability as a result of this provision.
The mediator took this new Union proposal to the Hospital
negotiators. After some time, he returned and said that he
wanted to bring the parties together. The mediator told the
Union that the Hospital had something to put on the table.
The parties then met together. Whelan said he “wanted to be
clear and direct. He heard our proposal, that we had been at
this for 6 months, and that they were declaring impasse.”
Whelan said “it’s very clear to us that . . . an agreement is not
possible after six months of bargaining. . . [T]he rest of the
organization . . . was in a pay freeze. That we’ve gotten no
response on holidays. And that we were declaring impasse.”
Gordon told Whelan that “it was a comical position.” He
said that “we did not feel that we were at impasse. That we had
plenty of movement. That as of the last session they had
moved on successor and the per diem piece.” Gordon told
Whelan, “you’re not even responding to our package offer, and
[Whelan] said, your package offer doesn’t address the issues
that we want to talk about.” Gordon told Whelan, “this isn’t
about anything other than declaring . . . . impasse so you could
institute the holidays,” and Whelan said, “exactly right” (or
words to that effect). There was an extended argument over the
Hospital’s financial situation.
The meeting ended at 11:15, about 20 minutes after the par-
ties had begun meeting together. Whelan was “declaring im-
passe and saying they were going to implement their last offer.”
That same day, April 15, the Hospital sent a letter to the bar-
gaining unit employees announcing implementation of the
Hospital’s final proposal. The letter defended the decision to
declare impasse and announced the implementation of the vari-
ous wage and benefit changes, stating that the implemented
proposal includes:
converting Patriots Day and Columbus Day from official hol-
idays to float holidays, and any time worked on those days
will be paid at straight time; a pay increase freeze (including
step increases) will take effect for anyone whose evaluation
date is between May 1, 2015 and April 30, 2015; as of May
31, 2015 the pension plan will be changed to be a matching
contribution plan, with Southcoast matching your contribution
dollar for dollar, up to 6%; FMLA Leaves will be for up to 12
weeks. At the negotiating table we agreed to the following
MNA proposals: successor language will be added to the con-
tract; changes to language related to Floating; Mandatory
Overtime; Time Schedules, and Reduction in Force.
DeJesus testified that he wrote the letter on April 15, but
then admitted on cross-examination that “there were parts of
the letter that were written before the meeting. . . . We knew
that impasse was a possibility on April 15th.”
The Union received Hyde’s report the evening of April 15.
The Union filed the unfair labor practice charge in this case
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD22
with the regional office of the Board the next day, April 16.
Sometime within the week after the April 15 meeting the
Union sent a typed version of its April 15 counterproposal to
Chabot, who provided it to the Hospital.
The parties stipulated at the hearing that the holiday proposal
was implemented April 20, 2015; the change to the pension
formula was implemented May 31, 2015, the pay freeze includ-
ing freeze in steps was implemented May 1, 2015. The remain-
ing proposals from the Hospital’s final proposal were imple-
mented April 15, although for some (i.e., reduction in force)
there has not been occasion to apply them.19
There were no further bargaining sessions after April 15.
Analysis
Section 8(a)(5) of the Act provides that it is an unfair labor
practice for an employer “to refuse to bargain collectively with
the representatives of his employees.” Section 8(d) of the Act
defines the duty to bargain collectively as "the . . . mutual obli-
gation of the employer and the representative of the employees
to meet at reasonable times and confer in good faith with re-
spect to wages, hours, and other terms and conditions of em-
ployment.”20
The General Counsel alleges three independent violations of
Section 8(a)(5) of the Act, and a fourth violation, a period of
overall bad-faith bargaining based on the three alleged inde-
pendent violations and the Respondent’s overall conduct.
First, the General Counsel alleges that the Respondent’s fail-
ure to furnish the Union with requested information relating to
the Hospital’s proposal to eliminate 4 weeks of FMLA leave
violates its bargaining obligations under the Act. (Complaint
¶¶9, 15.)
Second, the General Counsel alleges that the Respondent’s
introduction of its written proposal to freeze step pay on March
9, was a regressive proposal offered in violation of the parties’
agreed-to bargaining ground rules, and amounted to bad-faith
bargaining in violation of the Act. (Complaint ¶¶10–11, 15.)
Third, the General Counsel alleges that the Respondent’s
declaration of impasse and unilateral implementation of its final
bargaining proposal beginning April 15 violated the Act. Spe-
cifically the General Counsel argues that the Respondent has
failed to prove its chief defense to the allegations of unlawful
implementation, its claim that the parties had reached a valid
bargaining impasse that privileged unilateral implementation of
its proposal. (Complaint ¶¶12–13, 15.)
Finally, the complaint alleges that by its overall conduct—
including the three independent violations of the Act alleged
above, the Respondent has failed and refused to bargain in good
faith. (Complaint ¶¶14, 15.)
Given my resolution of the first three issues, I do not reach
the fourth, overall bad-faith bargaining allegation, as the addi-

19 The General Counsel does not allege that on-call pay provision
(no. 3 from the Hospital’s final offer) was unlawfully implemented,
based on the tentative agreement reached by the parties on this pro-
posal. (Tr. 384.)
20 In addition, it is settled that an employer's violation of Sec. 8(a)(5)
of the Act is also a derivative violation of Sec. 8(a)(1). Tennessee
Coach Co., 115 NLRB 677, 679 (1956), enfd. 237 F.2d 907 (6th Cir.
1956). See ABF Freight System, 325 NLRB 546 fn. 3 (1998).
tional finding would not materially alter the remedy. Centinela
Hospital Medical Center, 363 NLRB No. 44, slip op at 4 fn. 11
(2015). Below, I consider each of the initial three arguments in
turn.
I. FAILURE TO FURNISH REQUESTED INFORMATION(COMPLAINT
PAR. 9, AND 15)
The General Counsel and the Union allege that the Respond-
ent’s failure to provide the Union with information on the use
and cost of the extra 4 weeks of FMLA leave violates the Act.
“An employer’s duty to bargain includes a general duty to
provide information needed by the bargaining representative in
contract negotiations and administration.” A-1 Door & Build-
ing Solutions, 356 NLRB 499, 500 (2011); NLRB v. Acme In-
dustrial Co., 385 U.S. 432, 435–436 (1967); Pulaski Construc-
tion Co., 345 NLRB 931, 935 (2005). “Generally, information
concerning wages, hours, and other terms and conditions of
employment for unit employees is presumptively relevant to the
union's role as exclusive collective-bargaining representative.”
A-1 Door & Building Solutions, supra at 500; Disneyland
Park, 350 NLRB 1256, 1257 (2007) (“Where the union's re-
quest is for information pertaining to employees in the bargain-
ing unit, that information is presumptively relevant and the
Respondent must provide the information”).
Thus, employee personnel information, job descriptions, pay-
related data, employee benefits, and policies that relate thereto
are all presumptively relevant . . . Bargaining representatives
are not required to make a specific showing of the relevance
of requested information unless the employer has rebutted the
presumption of such. Presumptively relevant information
must be furnished on request to employees' collective-
bargaining representatives unless the employer establishes le-
gitimate affirmative defenses to the production of the infor-
mation.
Ralphs Grocery Co., 352 NLRB 128, 134 (2008), reaffirmed
and incorporated by reference, 355 NLRB 1279 (2010).
“Like a flat refusal to bargain, ‘[t]he refusal of an employer
to provide a bargaining agent with information relevant to the
Union's task of representing its constituency is a per se viola-
tion of the Act’ without regard to the employer's subjective
good or bad faith.” Piggly Wiggly Midwest, LLC, 357 NLRB
2344, 2355 (2012), quoting Brooklyn Union Gas Co., 220
NLRB 189, 191 (1975); Procter & Gamble Mfg., Co., 237
NLRB 747, 751 (1978), enfd. 603 F.2d 1310 (8th Cir. 1979).
Moreover, “[t]he Board has held that a union may make a
request for information in writing or orally.” Menorah Medical
Center, 362 NLRB No. 193, slip op. at 20 (2015); Tubari, Ltd.,
299 NLRB 1223, 1229 (1990) (“[t]here is no legal requirement
that information requests be in writing, nor that they be repeat-
ed”). See, LaGuardia Hospital, 260 NLRB 1455 (1982) (oral
requests enforceable); Kingsbury, Inc., 355 NLRB 1195 (2010)
(violation for not complying with oral request for information).
In this case, the violation is straightforward. From the first
day it provided its initial proposal, November 25, 2014, the
Respondent continuously proposed (HP 8) deleting article 8.15
from the contract, a benefit that provided 4 additional weeks of
FMLA leave to otherwise FMLA-eligible nurses.
SOUTHCOAST HOSPITALS GROUP, INC. 23
At this November 25 meeting, the Union asked the Hospital
“to tell us how many people utilized this Article 8.15 over the
past year” and “took the extra four weeks.” Whelan told the
Union he would “get back” to them. At the January 30 meet-
ing, Gordon asked for the cost the of the 4-week leave to the
Hospital, a benefit that Whelan had on November 25, described
to the Union as “expensive.” In a March 30 email to Whelan,
in response to an email from Whelan declaring that the negoti-
ating process “has gone on for too long,” Gordon reminded
Whelan that the Union was still waiting to receive ”a list of
nurses who have utilized the FMLA extension language over
past year.” At the March 9 meeting, Gordon asked again, how
many people used the extended FMLA benefit over the last
year.
This information, concerning as it does, the benefits received
by bargaining unit employees is presumptively relevant, doubly
so, given that the request directly concerned a bargaining pro-
posal advanced by the Respondent to eliminate a benefit that
the Respondent asserted to be “expensive.” As the Supreme
Court explained in Truitt, supra, relying on principles adhered
to since the earliest years of the Act, for a party to assert its
positions without permitting proof or independent verification,
"[t]his is not collective bargaining.” 351 U.S. at 153 (quoting
Pioneer Pearl Button Co., 1 NLRB 837, 842–843 (1936)).
Here, the Respondent does not (and reasonably cannot) chal-
lenge the relevancy of the request. To the contrary, the Re-
spondent promised to provide the information. At the January
30 meeting the Respondent told the Union that it was more
difficult to obtain than anticipated, but at the March 9 meeting
the Respondent assured the Union that it was “gathering the
information,” and made no reference to any difficulty in obtain-
ing it. Whelan reiterated this in his April 1 email to Gordon,
telling him that “[t]he extended medical leave information is
being gathered.” At trial Whelan admitted that “we certainly
intimated” that the information would be provided. His No-
vember 25 statement that the benefit was “expensive” suggests
that the Respondent had some knowledge about the benefits
cost even before the request was made. No information was
ever provided.
On brief, the Respondent argues that the request was too
burdensome to comply with, but at the hearing witness Whelan
admitted that he did not recall whether the failure to provide the
information was “because we simply forgot about it, or whether
we just couldn’t gather it.” No other witness volunteered the
answer. There is, in fact, no evidence, and there was no claim
at trial or to the Union during bargaining, that the Respondent
could not gather this basic information with reasonable efforts.
Indeed, the evidence is to the contrary as the Respondent’s last
word to the Union was that the information was being gathered.
Indeed, the entirety of the explanation offered to the Union
about why “it’s a pretty significant effort” and “a bit difficult to
get,” consisted of the assertion that the leave of absence records
are paper not electronic and the Respondent would have to
manually determine who took more than 12 weeks of (unpaid)
FMLA leave, and what the people who performed work in their
absence were paid (over and above what the employee on leave
would have received).
It is the Respondent’s burden to establish burdensomeness
(Mission Foods, 345 NLRB 788, 789 (2005)), and this explana-
tion does not. There are forms, and notifications, and accom-
modations involved in FMLA leave. There are approximately
150 nurses. It is unlikely, in the extreme, that more than a few
have not only taken FMLA leave but taken more than the statu-
tory 12 weeks and were using the extra leave provided by con-
tract. Nursing supervisors know who these individuals are.
Someone could search for the FMLA forms that DeJesus
agreed that employees seeking FMLA leave must complete. I
find it highly unlikely, but more to the point, entirely unproven
that the Union’s information request could not be promptly
complied with. I reject the Respondent’s burdensomeness de-
fense as unproven, and unknown to be true by the Respondent.
Mission Foods, supra.
Moreover, while the Respondent, on brief, faults the Union
for not offering it an accommodation, the Respondent’s argu-
ment turns the law on its head. If the Respondent believed that
the Union’s request was too burdensome to be satisfied, it was
its duty—not the Union’s—“to make a timely offer to cooper-
ate with the union to reach a mutually acceptable accommoda-
tion.” UPS of America, 362 NLRB No. 22, slip op. at 3 (2015);
H&R Industrial Services, 351 NLRB 1222, 1224 (2007); Mis-
sion Foods, 345 NLRB at 789.
I note that the Respondent does not explicitly argue that the
Union’s FMLA leave information request was made in bad
faith. However, at trial Whelan testified, and on brief argues
(R. Br. at 70) that “Gordon ‘never’ gave Attorney Whelan the
sense that the information ‘was in any way important to him.’”
Whelan stated at trial that he wanted to provide the information
to Gordon “just so that he couldn’t keep” asking for it. The
Respondent then cites ACF Industries, 347 NLRB 1040 (2006),
for the proposition (R. Br. at 70) that the Board “disfavors tac-
tical information requests submitted for the purposes of delay.”
Of course, Whelan’s failure to be impressed with the im-
portance of the information request is not relevant. And the
comparison to ACF Industries is not well-taken. There, the
Board failed to find a violation where a union’s massive infor-
mation request was made 3 days before an announced imple-
mentation and after months of bargaining over the issue in the
information request. In complete contrast to AFC, here the
Union’s request for leave information was made from the very
outset of bargaining, repeated, and never provided despite the
Respondent’s promises that it would be.
The Respondent’s violation of the Act is as clear as the rec-
ord evidence of its months of indifference to the Union’s in-
formation request. It could not even be bothered to show up for
trial with an explanation of why it never provided the infor-
mation. The Respondent violated the Act, as alleged, by failing
and refusing to provide the requested FMLA leave infor-
mation.21

21 Although the evidence is that the Union requested information on
the number of nurses utilizing the extended FMLA leave on November
25, 2014, and March 9, 20015, the complaint alleges only that the re-
quest for this information and the Respondent’s failure and refusal to
furnish the information began since about March 9 (complaint at ¶¶8,
9). The complaint also does not reference a request for the cost of the
extended FMLA leave, which the evidence shows was made January
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD24
II. INTRODUCTION OF STEP FREEZE PROPOSAL ON MARCH
9(COMPLAINT PARS. 10, 11, AND 15)
The General Counsel alleges that the Respondent’s introduc-
tion of its written proposal to freeze step pay on March 9, was a
bad-faith regressive proposal offered in violation of the parties’
agreed-to bargaining ground rules, and as such, independently
constituted unlawful bad-faith bargaining in violation of the
Act.
There is no question that a party’s failure to adhere to
agreed-to ground rules in negotiations may serve as an indicia
of unlawful bad-faith bargaining. Harow Servo Controls, 250
958, 959 (1980) (Board finds that “[r]epudiating the agreement
to bargain about and settle noneconomic matters before negoti-
ating the economic provisions of a collective-bargaining
agreement” is an indicia of bad faith bargaining). Yet, the
Board also considers the overall circumstances, as the Board is
committed to “providing parties with the flexibility to enter into
and deviate from new bargaining formats without the risk of
being found to have violated their obligation to bargain in good
faith” as this “facilitates effective bargaining and encourages
productive experimentation.” Detroit Newspapers, 326 NLRB
700, 704 fn. 11 (1998) (dismissing allegation that employer
violated Sec. 8(a)(5) by failing to adhere to parties’ agreement
to reserve certain bargaining issues for joint bargaining).
Precedent is similarly nuanced as to regressive proposals.
The Board has stated that “Regressive bargaining . . . is not
unlawful in itself; rather it is unlawful if it is for the purpose of
frustrating the possibility of agreement.” U.S. Ecology Corp.,
331 NLRB 223, 225 (2000), enfd. 26 Fed.Appx. 435 (6th Cir.
2001), citing McAllister Bros., 312 NLRB 1121 (1993); see
also Houston County Electric Cooperative, 285 NLRB 1213,
1214 (1987) (regressive bargaining tactics that are “designed to
frustrate bargaining” are “an indicium of bad-faith bargain-
ing”).
In this case, I do not agree that that the Respondent’s intro-
duction of its March 9 proposal amounted to an independent
violation of the duty to bargain in good faith.
The ground rules for bargaining agreed to by the parties
made clear that all new proposals were supposed to be on the
bargaining table by the fourth meeting (originally anticipated to
be December 17, 2014, but which turned out to be January 30,
2015). An exception was made for counterproposals:
Neither party will submit new proposals, as opposed to coun-
terproposals, after the fourth meeting, December 17, 2014.
All proposals must be reduced to writing. For purposes of
this ground rule, the first meeting is the meeting held on No-
vember 25, 2014.
The plain purpose of such a rule is to facilitate settlement by
establishing early in negotiations the issues in dispute, allowing
the parties to work to narrow their differences without the later

30. Moreover, the complaint does not allege a delay in providing basic
pension information that was repeatedly requested beginning Novem-
ber 25 and not provided (in any form) until April 1. Given the com-
plaint, I will limit the finding of violation to a failure and refusal to
provide information on the number of nurses using the extended FMLA
leave, with such violation occurring since about March 9, 2015.
introduction of new disputes. As Gordon put it, after the fourth
session, “It’s what’s on the table is on the table, at that point.”
The General Counsel and the Union contend that the March
9 step freeze proposal was obviously regressive and offered
well after the fourth meeting, and, therefore, violated the
ground rules.
The Respondent makes two arguments in claiming that it did
not violate the ground rules. First, it argues that its March 9
proposal to freeze the steps was a “counterproposal” to the
Union’s November 25 proposal for an across-the-board wage
increase, and, as a counterproposal, was exempt from the
ground rules’ prohibition on post-fourth meeting proposals.
The Hospital also contends that its March 9 proposal was not
new: rather, it was a written version of an oral counterproposal
made at the bargaining table to the Union in November and
December in response to the Union’s wage proposal. To this
latter argument the Hospital adds the contention that the ground
rules’ statement that “All proposals must be reduced to writing”
does not apply to counterproposals, or, I suppose (although the
Hospital does not argue this) that an oral counterproposal can
be reduced to writing many months after it has been made.
The General Counsel and the Union contend that the step
freeze is not a “counter” to the Union’s proposal for an across-
the-board wage increase—the Union’s proposal, after all, did
not mention steps and implicates them only indirectly. Moreo-
ver, the General Counsel and the Union reject the contention
that the step freeze was proposed (or counterproposed) in the
initial bargaining session. They do not address the contention
that proposals denominated as counterproposals need not be in
writing—I doubt they contemplated anyone would make such
an argument—but I assume they would not agree.
In any event, I think this is all somewhat beside the point.
While I recognize that acceptance of the Hospital’s reading of
the ground rules would drain most all meaning from the rules, I
think the wrong approach would be to resolve this dispute
based on an arbitration-like contractual analysis of the ground
rules.22
Whatever the answer produced by such contractual analysis
of the ground rules, that is not the issue presented. Rather, the
issue presented is whether the Respondent’s conduct with re-
gard to the ground rules is an indication of bad-faith bargaining.
Even if the General Counsel and Union believe that the Re-
spondent’s contentions carry a whiff of the disingenuousness, it
is at least colorable to say that the proposal to freeze step pay
was offered as a “counterproposal”—in response—to the Un-
ion’s across-the-wage hourly wage proposal. This was, at least,
the Hospital’s framing of the issue on March 9. There is no
precise definition of the term. All one can say that with enough
inspiration, nearly any proposal made after an earlier one can

22 Interpreting the ground rules would require resolution of issues
such as: how closely must a proposal relate to a proposal to be consid-
ered a “counterproposal”? Is a proposal that moves the parties further
apart on an issue not raised by an earlier proposal fairly considered a
counterproposal at all? Given that a counterproposal is a type of pro-
posal, and it surely is, if “all” proposals “must be reduced to writing,” is
an oral counterproposal valid? And if not, can the “reduc[tion] to writ-
ing” contemplated by the ground rules occur many months after the
initial counterproposal has been made?
SOUTHCOAST HOSPITALS GROUP, INC. 25
be termed a counterproposal. In this case, at least, the Re-
spondent’s “counterproposal” deals with an aspect of the same
general subject—wages—that the Union’s proposal considered.
I do not believe bad faith has been shown based on the Hospi-
tal’s asserted interpretation of the ground rules.
The contention that the March 9 step-freeze proposal was an
unlawful bad-faith regressive proposal is also problematic.
To be sure, I agree with the Union and the General Counsel
that the March 9 step freeze proposal was regressive, and new.
Before March 9, the Respondent had utterly failed to make
clear that it was proposing (or counterproposing, as the case
may be) a step freeze, or to take reasonable actions to put the
step freeze at issue in bargaining for the Union to consider.
This is true, notwithstanding the Hospital’s repeated rejection
of the Union’s wage proposal with the assertion that it wanted a
“pay” or “wage freeze,”23 its discussions of “real” or “true”
freezes in some but not other past years, its contentions of fi-
nancial distress, or the fact that a letter to the Hospital system’s
employees in October 2014, described a “wage freeze” and no
“accompanying merit increases.”24 Indeed, even assuming, as I
have, that Whelan mentioned once on November 25, that he
wanted a pay freeze “that included steps” this lone comment,
buried as it was within multiple general oral references to a
“wage freeze” or “pay freeze”—that had no specific reference
to a demand for a step freeze here—does not suffice to consti-
tute a counterproposal to a union wage proposal that did not
even mention steps.
Even assuming the proposition that there was no requirement
under the ground rules that such a proposal be in writing, I
reject the Hospital’s contention that its myriad of discussions at
the bargaining table about a “pay freeze” or “wage freeze”
constituted notice to the Union that the Hospital was countering
with a step freeze. For regardless of how one interprets the
requirements of the ground rules, the method of bargaining
used throughout negotiations by both parties throughout negoti-
ations—except, allegedly, in this instance—was to propose
precise changes to the expiring contract—usually by page, par-
agraph, and sentence. The few oral proposals or counterpro-
posals made by both parties during the negotiations were really
notification to the other side of what was coming: in each in-
stance they were quickly followed-up with a specific written

23 I note that the meaning of a “pay freeze” or “wage freeze” is a
highly ambiguous term in labor negotiations and subject to multiple
plausible interpretations. For instance, Arbitrator Morris Shanker ruled
in Cuyahoga Metropolitan Housing Authority, 108 (BNA) Labor Arbi-
tration 824 (1997), that the parties’ agreement to a “wage freeze” did
not preclude the continuation of anniversary pay increase where union
believed the term to mean entry wages were frozen but anniversary
wage increases continued, while management believed the term meant
entry and anniversary increases were frozen. Arbitrator Shanker ruled
that “the parties had quite different understandings regarding what the
words ‘wage freeze’ meant. And, each of these meanings is a plausible
one.”
24 While the letter was also sent to the unit employees, the concept of
a merit pay increase was inapplicable to them, and more to the point, an
employer cannot bargain with a union by making proposals directly to
unit employees. A union need not read employer mail to employees in
order to glean what the employer is proposing or going to propose in
bargaining.
version of the proposal. This is how the parties bargained. The
Union had every right and reason to believe, and I find that the
Union reasonably did believe that the Respondent had not ad-
vanced an affirmative proposal or counterproposal to freeze
steps.
Thus, I find that the Union, as Gordon testified, was una-
ware, and reasonably so, before March 9 of any Hospital pro-
posal to freeze steps. If the Hospital wanted to put a step freeze
proposal on the table before March 9, it certainly knew how to
do so. Indeed, it had made a step proposal in reopener negotia-
tions only months before, that time communicating clearly its
proposal. And it did so on March 9. Having failed to do so
otherwise in this negotiations, it cannot successfully claim that
it orally proposed a step freeze—in a negotiations in which
written proposals and counterproposals immediately reduced to
writing were the norm—through vague commentary, allusions,
metaphors and financial complaints—methods of bargaining
that most certainly do not square with its self-description as a
“clear and direct” interlocutor.
And of course, undercutting the Hospital’s position is that if
its oral references to “pay freeze” and the like had been suffi-
cient to communicate a proposal to freeze steps, there would
have been no need at all for the Hospital to make the same pro-
posal on March 9. Or put another way, a claim by the Hospital
that even in the absence of its March 9 proposal it would have
been free upon impasse to implement a step freeze as part of a
final proposal—based on its oral representations in November
and December, while every other part of its offer was in scru-
pulously detailed written form naming the page and sentence of
the old contract to be changed—would not have been very con-
vincing. I note that while the Hospital claims that its March 9
written proposal on step freeze was not new but merely part of
a written update listing all proposals and counterproposals, its
February 12 presentation by Whelan of its “comprehensive
position of where we stood” made no reference, written or oral,
to step freezes. The March 9 proposal was new, and very much
a regressive proposal.25
However, a regressive proposal is “not unlawful in itself,”
rather it presents as bad-faith bargaining only if offered in bad
faith, such as “for the purpose of frustrating the possibility of
agreement.” U.S. Ecology Corp., 331 NLRB at 225.
This is where my review of the record convinces me that the
Hospital’s motives in issuing the March 9 regressive proposal,
although nearly obscured by the discredited arguments it ad-
vances, do not constitute or reflect bad faith. I think that the
record and the Hospital witnesses’ testimony demonstrate that,
although never proposed and never conveyed to the Union, the
Hospital did, in fact, always intend for there to be a step freeze
along with no wage increase in the new contract. I believe that
it dawned on the Hospital sometime just before March 9, that it
had not, in fact, ever proposed a step freeze to the Union, and
that, without doing so in a fashion consistent with the parties’
practices in this negotiation, it would have no chance convinc-

25 Finally, it is worth pointing out that, in any event, the March 9
step freeze was indisputably new in that it proposed that the step freeze
would begin in three weeks’ time and last until April 1, 2016, beyond
the proposed term of the labor agreement.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD26
ing the Union or anyone else that the step freeze was legiti-
mately part of its offer. (And that would queer implementation,
even in the presence of an impasse.)
To correct this, the Hospital made its March 9 proposal.
Other than its subsequent interest in rushing to implementa-
tion—a separate matter discussed below—I see no bad faith in
the mere making of the proposal.26 Unless the ground rules
operate as a straightjacket, putting an important proposal on the
table that has been overlooked or neglected is all a party can do.
Just as regressive proposals should not be used to thwart nego-
tiations, the Board should not permit ground rules to be used to
thwart a party from making legitimate proposals upon realiza-
tion that it has failed to address an issue of importance to it. It
is not bad faith to correct a bargaining error, or oversight, even
a big one, and even one that is upsetting to the other party. As
unhappy and as surprised as the Union may have been to see
the Hospital’s step freeze proposal on March 9, I believe the
evidence suggests that the Hospital proposed it, not to frustrate
bargaining, but in a tardy effort to make a proposal it had long
anticipated making. Just as I have found that the Respondent
did not convey its step freeze proposal to the Union in Novem-
ber and December in a manner that it can be said that the pro-
posal was made, I also find the Respondent’s witnesses con-
vincing in their belief that it was always their intent to propose
a step freeze. So, on March 9, they did it. But that does not
show that the step freeze proposal was offered in order to frus-
trate the chances of agreement. This was not a situation—
sometimes the case with bad-faith regressive bargaining—
where the regressive proposal was made to avert the looming
prospect of settlement.27
The Respondent’s submission of the March 9 step freeze
proposal did not independently violate the Act.
III. THE RESPONDENT’S UNILATERAL IMPLEMENTATION OF ITS
FINAL OFFER (COMPLAINT PARS. 12, 13, AND 15)
The General Counsel and Union contend that the Respond-
ent’s unilateral implementation of its outstanding bargaining
proposal on April 15, 2015, and dates thereafter, constituted a
violation of its bargaining obligations. The Respondent’s de-
fense is that it implemented only after reaching a valid bargain-
ing impasse that privileged the unilateral implementation.
Board precedent has long been settled that, as a general rule,
an employer with an obligation to collectively bargain may not
make unilateral changes in mandatory subjects of bargaining
without first bargaining to a valid impasse. NLRB v. Katz, 369
U.S. 736 (1962). Indeed, a unilateral change in a mandatory
subject is a per se breach of the 8(a)(5) duty to bargain, without

26 Unfortunately, it seems that an effort to strengthen its argument
for impasse has led the Hospital to claim that its step-freeze proposal
was always on the table, even before March 9.
27 See, e.g., Latino Express, Inc., 360 NLRB No. 112, slip op. at 13
(2014) (“sudden unveiling of the regressive, tentative-agreement break-
ing, and unlawfully provisioned final offer on April 2, 2012, represent-
ed a purposeful and conscious effort by the Respondent to undermine
the possibility of progress at the negotiating table. . . . [I]t strikes me as
no coincidence, but rather, a goal of the Respondent to foreclose any
possibility of reaching an agreement before the upcoming end of the
certification year. The Respondent's final offer made sure of that”).
regard to the employer's subjective bad faith.28
Where, as here, the parties are engaged in negotiations for a
new collective-bargaining agreement, in general, “an employ-
er's obligation to refrain from unilateral changes extends be-
yond the mere duty to give notice and an opportunity to bar-
gain; it encompasses a duty to refrain from implementation at
all, unless and until an overall impasse has been reached on
bargaining for the agreement as a whole.” Bottom Line Enter-
prises, 302 NLRB 373, 374 (1991) (fn. omitted), enfd. mem. 15
F.3d 1087 (9th Cir. 1994).
However, Board precedent also recognizes that “overall im-
passe may be reached based on a deadlock over a single issue.”
But for the Board to find a single-issue impasse there are three
requirements:
[t]he party asserting a single-issue impasse has the burden to
prove three elements: (1) that a good-faith impasse existed as
to a particular issue; (2) that the issue was critical in the sense
that it was of “overriding importance” in the bargaining; and
(3) that the impasse as to the single issue “led to a breakdown
in overall negotiations—in short, that there can be no progress
on any aspect of the negotiations until the impasse relating to
the critical issue is resolved.”
Atlantic Queens Bus Corp., 362 NLRB No. 65, slip op. at 1
(2015) (Board’s emphasis) (quoting CalMat Co., 331 NLRB
1084, 1097 (2000)).
The Board has defined impasse as the point in time of nego-
tiations when the parties are warranted in assuming that further
bargaining would be futile. Pillowtex Corp., 241 NLRB 40, 46
(1979), enfd. mem. 615 F.2d 917 (5th Cir. 1980). “Whether a
bargaining impasse exists is a matter of judgment.” North Star
Steel, Co., 305 NLRB 45, 45 (1991), enfd. 974 F.2d 68 (8th
Cir. 1992). “The bargaining history, the good faith of the par-
ties in negotiations, the length of negotiations, the importance
of the issue or issues as to which there is disagreement, the
contemporaneous understanding of the parties as to the state of
negotiations are all relevant factors to be considered in deciding
whether an impasse in bargaining existed.” Taft Broadcasting
Co., 163 NLRB 475, 478 (1967), enfd. 395 F.2d 622 (D.C. Cir.
1968).
However, “[i]t is not sufficient for a finding of impasse to
simply show that the employer had lost patience with the Un-
ion. Impasse requires a deadlock.” Barstow Community Hos-
pital, 361 NLRB No. 34, slip op. at 9 (2014). In order to find
an impasse, “both parties must believe they are at the end of
their rope.” Larsdale, Inc., 310 NLRB 1317, 1318 (1993); See
also NLRB v. Powell Electrical Mfg., 906 F.2d 1007, 1011–
1012 (5th Cir. 1990).
“Impasse is a defense to the charge of unilateral change. It
must be proved by the party asserting impasse—in this case the

28 Katz, supra at 743 (“though the employer has every desire to reach
agreement with the union upon an over-all collective agreement and
earnestly and in all good faith bargains to that end . . . an employer’s
unilateral change in conditions of employment under negotiation is [ ] a
violation of § 8(a)(5)”). “For it is a circumvention of the duty to nego-
tiate which frustrates the objectives of § 8(a)(5) much as does a flat
refusal.” NLRB v. Katz, 369 U.S. at 743.
SOUTHCOAST HOSPITALS GROUP, INC. 27
Respondent.” North Star Steel, Co., 305 NLRB at 45; Atlantic
Queens Bus Co., 362 NLRB No. 65, slip op. at 1 (“party assert-
ing single-issue impasse has the burden” to prove its elements).
In this case, the Respondent does not advance the contention
that the parties were at a traditional overall impasse on the bar-
gaining agreement as a whole. Therefore, I do not consider that
issue. Rather, the Respondent’s argument (R. Br. at 52, 58–68)
is that the parties were at deadlock over what the Respondent
calls the three “critical issues”: its wage (and step), holidays,
and pension proposals. Relying on CalMat, and related cases,
the Respondent argues that the bargaining circumstances meet
the requirements of the “single issue” impasse doctrine and that
on that basis the parties were at an impasse.
For the reasons set forth herein, I reject the Respondent’s
contention that the parties had reached a good-faith bargaining
impasse as of April 15, when it declared impasse and began
implementing its proposal.
As stated, an employer relying on a “single issue” impasse
theory must prove (1) a good-faith impasse on the particular
issue—in this case the issues—over which it claims impasse;
(2) the “overriding importance” of the issues in the bargaining;
and (3) that the impasse on these specific issues led to “a
breakdown in overall negotiations,” such that “there can be no
progress on any aspect of the negotiations until the impasse
relating to the critical issue is resolved.” Atlantic Queens Bus
Corp, supra (Board’s emphasis) (citing CalMat, Co., supra).
In this case, assuming (2) that the wages, pension, and holi-
days were “of overriding importance,” the Respondent has
failed to show either (1) that a good-faith impasse existed as to
these issues, or (3) that there was a “breakdown in overall ne-
gotiations” and that “no progress on any aspect of the negotia-
tions” could be made until impasse relating to the critical issues
was resolved.
a. There was no breakdown in overall negotiations
Beginning with factor 3, the facts demonstrate that—quite
apart from whether there was an impasse on what the Respond-
ent terms “the critical issues” of wages, holiday, and pension—
there was not a “breakdown in overall negotiations.” The Re-
spondent has failed to prove that “no progress on any aspect of
the negotiations” could be made until impasse was broken as to
the critical issues.
Through and including April 15, the parties met for eight
substantive bargaining sessions.29 Putting aside for the time
being the issues (across-the-board wages, steps, pension, and
holiday) that the Respondent claims there was deadlock on, the
fact is, in those meetings, up to and including the final April 15
meeting when the Respondent declared impasse, there was
significant movement, and on significant issues. Indeed, as to
its own movement, the Respondent highlights these moves in
an effort to show that it bargained in good faith. As the Re-
spondent explains in its brief:

29 November 25, December 5, and 17, 2014, January 30, February
12, March 9, 20, and April 15, 2015. The November 10, 2014 meeting
was an introductory meeting during which the parties agreed to ground
rules. The April 8, 2015 meeting was devoted to the parties’ financial
experts.
Nothing required Southcoast to make concessions, but it did.
From November 25th through March 20th Southcoast moved
repeatedly. On December 5th Southcoast withdrew its Dental
Proposal. On December 17th, Southcoast countered MNA's
Floating Proposal and Recall Proposal. On January 30th,
Southcoast moved on the Floating Proposal again, it amended
its DTU Proposal, and it withdrew its Weekend Proposal. On
February 12th, Southcoast withdrew its Daily Overtime Pro-
posal.
The concessions that Southcoast made on March 9th
and March 20th, the date of its Final Position, were sub-
stantial and represented significant efforts on its part to
shake MNA loose on the Critical Issues. Southcoast made
a contingent offer to withdraw its DTU Proposal, and it
countered on the Floating Proposal, the [Mandatory] Over-
time Proposal, the Scheduling Proposal [UP 9], and the
[Reduction in Force] Recall Proposal [for the first time in
writing]. Furthermore, on March 20th—for the first time
since November 25th—Southcoast countered MNA's Suc-
cessorship Proposal. Previously, Mr. Gordon had charac-
terized successorship as a “key priority” for MNA; the
"most important proposal that they had."
R. Br. at 60 (fns. and case citation omitted).
In addition, on March 9, the Hospital added a contract dura-
tion date. On March 20, it again countered a part of the Un-
ion’s floating proposal and proposed for the first time floating
per diem nurses before regular nurses in two units of the hospi-
tal.
The Union also made movement. On January 30, the Union
withdrew the evening and weekend differential, and reduced
the night, on–call, charge nurse, and preceptor differential pro-
posals. (UP 2-6). On floating (UP 7), the Union rejected the
Hospital’s overall counterproposal, but agreed with the Hospi-
tal’s prior counter on bullet point 3 of this proposal (proposing
that a 6-month restriction on floating should apply to “new
graduates” and not “[n]ewly hired” nurses. Tentative agree-
ment was reached on the Hospital’s on-call pay proposal, HSP
1 regarding pay beginning when the nurse arrives at the hospi-
tal (Article II, Section 2.4). As to UP 11, the Union agreed to
withdraw the request for (e). It agreed that the Hospital had a
right to implement HP 6, the proposed increase in health care
contributions.
On March 20, the Union countered the Hospital’s new float-
ing proposal (from that day), agreeing with the Hospital’s lan-
guage amending the union proposal, but proposing that it be in
the contract (not in a letter as proposed by the Hospital) and
that it apply to the whole hospital (and not just two units as
proposed by the Hospital). The Union promised to develop a
counterproposal on successorship.
And finally, on April 15, the Union again adjusted the night,
on-call, charge RN, and preceptor differential. The Union
dropped its proposal to eliminate flex-up (UP 10) and instead
proposed completely new language amending the existing pro-
vision. The Union officially countered (it had done so orally on
March 9) the Hospital’s latest counter to UP 12 (reduction-in-
force), proposing a 1-year recall period for bumped employees
(countering the Hospital’s 3-month proposal). It reiterated
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD28
acceptance of the Hospital’s amendment to the on-call pay
proposal from March 9 and March 20. The Union told the
Hospital that “we could probably live with” the Hospital’s
March 9 counter to the Union’s UP 8 on mandatory overtime,
but sought clarification. The Union accepted the language of
the floating proposal—the language that the Hospital had pro-
posed on March 20—but proposed that it be in the floating
section of the contract, and apply to the whole hospital (not be
in a side letter and applicable to only the med/surg floors as
proposed by the Hospital). On successorship, the Union, coun-
terproposed, accepting the language proposed by the Hospital at
the previous March 20 meeting, but adding a new sentence to
the proposal.
Thus, on the very day, indeed, in the same meeting that the
Respondent declared impasse, the Union made significant
movement on a number of issues including providing the Hos-
pital responses to movement made by the Hospital for the first
time in the previous two bargaining sessions. This included
significant movement on issues of undisputed importance such
as floating,30 flex,31 and successorship.32
On this record, it seems untenable, and wholly unproven,
that there was “a breakdown in overall negotiations,” and no
chance of “progress on any aspect of the negotiations” until the
claimed impasse over the “critical” issues was broken.
The Board’s recent decision in Atlantic Queens Bus Co., is
instructive. That case involved a group of bus company con-
tractors that traditionally bargained together for identical con-
tracts with their employees’ union. The bus companies provid-
ed K-12 bus services for the New York City Department of
Education (DOE).
The expiring labor agreement contained a most-favored na-
tions (mfn) clause that provided that if the union entered into an
agreement with another employer that provided terms more
favorable to the employer than with these bus companies, the
bus companies had the right to adopt the more favorable terms.
This was suddenly a looming prospect. For the first time in
over 30 years the DOE had announced that it would be seeking
bids from contractors that would not contain mechanisms effec-
tively requiring the matching of wages and benefits paid by
existing contractors. The prospect of new contractors under-
cutting the existing contractors was “a profound change” that
“dominated” the successor negotiations and was greatly
“feared” by both the existing contractors and the union.
During the first seven bargaining sessions, from October 23
to February 12, which included a month long strike, the parties
made “limited headway.” After the strike the parties held five
more bargaining sessions through March 19. At a March 11
meeting the union “said it would never agree to a contract with
a [mfn] clause, and the [employers] replied that they would
never agree to a contract without it.”

30 Floating was “something that the nurses despise” and was “a huge
issue for them.”
31 Flex “was causing a lot of problems within the bargaining unit.
The nurses were really upset over it” and the current policy was “caus-
ing some nurses to leave the hospital they hated flex so bad. We said
that to [the Hospital bargainers.”
32“The most important proposal that [the Union] had.”
However, on other issues, such as wages, there was move-
ment, although the employers continued to propose significant
wage reductions and the union significant wage increases. On
March 19, the Union lowered its wage increase demand to 2
percent for the first 2 years of the contract, and 3-percent in-
crease for the third. The employers responded that day with a
“final” proposal to cut wages 7.5 percent for drivers, 3.75 per-
cent for assistants with a small increase in the third year. The
employers then declared impasse and implemented their final
offer based on an asserted deadlock over the parties’ hardened
positions on the mfn clause.
Relying on the three-part “single issue” impasse test set forth
above, the Board, without reaching the first two parts of the
test—i.e., whether a good-faith impasse existed as to the mfn
proposal, or whether it was a critical issue—held that the em-
ployers had violated the Act by implementing their final pro-
posal. Although still far apart on wages, the movement on the
issue led the Board to conclude that “[t]he evidence does not
support a finding that, at the time the Respondents declared
impasse, the parties were unable to make ‘progress on any as-
pect of the negotiations’ until they resolved any impasse that
existed regarding the most-favored-nations clause issue.” At-
lantic Queens Bus Co., supra, slip op. at 2. The Board ex-
plained:
We recognize that the parties had taken opposing and poten-
tially irreconcilable positions regarding the most favored-
nations clause issue. The record demonstrates, however, that
these positions—though starkly different—had not frustrated
the progress of further negotiations as of March 19. . . . Re-
gardless of whatever importance the parties may have at-
tached to the most-favored-nations clause issue, and even if
the parties were at an impasse regarding that issue on or be-
fore March 19, the record does not permit a finding that, as of
the afternoon of March 19, the parties were unable to make
further “progress on any aspect of the negotiations.” CalMat
Co., 331 NLRB at 1097. Accordingly, we find that the Re-
spondents violated Section 8(a)(5) and (1) of the Act by de-
claring impasse and implementing the terms of their final of-
fer.
362 NLRB No. 65, slip op. at 3. See also, Sacramento Union,
291 NLRB 552, 556–557 (1988) (finding that even if there was
a deadlock over a single critical issue, there was no overall
breakdown in negotiations where the parties had reached
“agreement on many issues as a result of concessions by both
sides” the day before the employer declared impasse), enfd. w/o
op. 888 F.2d 1394 (9th Cir. 1989).
This is dispositive of the Respondent’s argument here.
Without regard to the Hospital and Union’s differences over
wages, pension, and holidays, as in Atlantic Queens Bus, the
parties continued through the very day that impasse was de-
clared to make movement and progress on other aspects of
negotiations. This included indisputably significant issues such
as floating, on which steady process had been made throughout
bargaining; flex-up, on which the Union now offered an entire-
ly new approach based on the current language desired by the
Hospital, and successorship, an issue that recent progress had
been made on and that the Hospital characterizes in its brief as
SOUTHCOAST HOSPITALS GROUP, INC. 29
a “key priority” for the Union, and “the most important pro-
posal that they had.”
Instead of responding to the package proposal offered by the
Union at the April 15 meeting, the Hospital declared impasse
and told the Union it did not want to talk about the issues raised
by the Union, which included responses to proposals made to
the Union for the very first time at the previous bargaining
session. When Gordon told Whelan “you’re not even respond-
ing to our package offer,” Whelan responded, “your package
offer doesn’t address the issues that we want to talk about.”
This is not impasse, this is a refusal to bargain.
Without more, the Respondent’s “critical issue” impasse ar-
gument fails. Negotiations on other significant issues had not
broken down. There was not only the prospect of progress on
some of these “non-critical” issues, there was, in fact, progress.
Accordingly, the Respondent’s declaration of impasse was
false, and its implementation of its pending final offer violated
the Act.33
b. There was no impasse on the “critical issues”
Although the Respondent’s failure to satisfy point 3 of the
“single issue” impasse test is dispositive, the evidence is also
that it failed to prove point 1: on April 15, there was not a
good-faith impasse on what the Respondent calls the “critical
issues,” the issues on which it claims the parties were dead-
locked.
From the first, the Hospital made clear to the Union that it
rejected and always would reject the Union’s proposal for an
across-the-board wage increase, thereby, in effect, insisting on
an across-the-board wage freeze. The Hospital also made clear
from the start that its demand to eliminate the two holidays
(Patriots’ Day and Columbus Day), and its demand to change
the pension contribution formula would not change. But with-
out regard to whether its adamancy was consistent with the
statutory duty to bargain, it does not obviate the duty to bar-
gain.34
Here, the record is clear that throughout the negotiations the
overriding “problem” with regard to the gulf in the parties’
financial proposals was the Union and Hospital’s differing
views on the existence and interpretation of the Hospital’s fi-
nancial situation. This debate repeatedly dominated and ani-

33 In addition, although no progress had been made on the issue of
the Hospital’s adamant and unyielding proposal to eliminate four weeks
of FMLA leave, this must, in the first instance, be attributed to Hospi-
tal’s many months long (unlawful) failure to provide the Union with
requested information regarding this proposal. See, above.
34 The resoluteness with which the Hospital advanced its position on
these (and others of its) proposals, from day one, certainly calls into
question whether, as required by the statutory duty to bargain, the Hos-
pital “entered into discussion with an open and fair mind, and a sincere
purpose to find a basis of agreement.” NLRB v. Herman Sausage Co.,
275 F.2d 229, 231 (5th Cir. 1960). However, a claim of overall bad-
faith bargaining throughout the full course of negotiations is not ad-
vanced by the General Counsel (Tr. 541–542), and I make no finding in
that regard. I recognize that the General Counsel does argue (GC Br. at
115) that the Respondent’s failure to approach negotiations with an
open mind is evidence of bad faith that adds to its argument that there
was no impasse on April 15. However, based on my decision, I find it
unnecessary to reach or rely upon that argument.
mated the parties’ discussions over the Hospital’s demands for
concessions and the Union’s demands for wage increases.
Gordon and the Union read the publicly available Hospital
financial information to show a $45-million surplus and pay
increases for executives. The Hospital, however, raised finan-
cial alarms, cited recent operating losses of $30 million, and
argued that the Hospital System was “not in a healthy place”
and “struggle[ing] financially.”
To this point, the evidence shows that the financial disputes
between the parties involved the Hospital’s contradictory in-
sistence that its intransigence on all of its concessionary pro-
posals was borne of financial necessity, but, at the same time,
that it was not claiming an inability to meet the Union’s de-
mands. At the trial, and at the bargaining table, the Hospital
and its witnesses emphatically stressed that their position on the
financial issues was borne of financial necessity.35 At the same
time, again, both at trial and at the bargaining table, the Hospi-
tal was emphatic that it was not pleading poverty or claiming an
“inability to pay” for the Union’s proposed increases. As
Whelan stated at the December 5 meeting, he “was not saying
we have an inability to pay.” Gordon said he was “taken
a[b]ack” and said but “you[’re] saying you don’t have an ina-
bility to pay”? Whelan stated, “no [,] we have ability to pay.”
Whelan explained, “we made it very clear that we have the
money if we had to make those payments? Yes, we did. . . .
The money was there, yes.” DeJesus testified that Whelan
“made it clear we were not talking about an inability to pay.”36

35 Dejesus testified: “We had been clear from Day 1 that we – we
wanted a pay freeze. We needed a pay freeze.” (Tr. 514); “So my point
in saying that was to share with them that we don't take these decision
lightly. That we would not be asking for a pay freeze if it truly wasn't
necessary.” (439–440). "I wanted to be clear, because the Union was
taking the position that we were not in bad financial shape; that we
wouldn't be taking action like this unless we were in tough financial
shape.” (Tr. 439); “[E]conomic proposals are key to us. That we had to
right the ship. And that the downward trend could not continue.” (Tr.
424); “These are critical to us. We need the pay freeze. We need the
pension. We need the holidays.” (Tr. 453); Pierce testified: “our
position was that we weren't in a position to provide increases.” (Tr.
646). Gordon testified that “[Whelan] made the statement that South-
coast was not in a healthy place” (Tr. 120); “Mr. Whelan was trying to
make an argument to support his position that they weren't in the posi-
tion to talk about our first six proposals. He was saying that the hospi-
tal, the organization, was not in a healthy place.” (Tr. 128); Bodenmann
told the Union: “Moody's downgrading them; their rate. Big decrease in
volume. No flu season. A growing doctor's group. This was -- she was
just going over telling us this is why they felt they didn't have the abil-
ity to give us our financial increases that we were requesting through
our proposals.” (Tr. 186); Whelan’s opening statement explained that
the Hospital “struggled financially.” (Tr. 23); “That trend [of losing
money] continued in a very frightening way in 2014.” (Tr. 24); This
was the hospital and the system having to make changes to correct a
very precipitous problem in its operating expenses” (Tr. 24); The hos-
pital made a decision at the outset of negotiations . . . that it was going
to be honest, and direct, and upfront with the union about its financial
position.” (Tr. 25); “there's no mystery to where we are, we are asking
for a complete wage freeze.” (Tr. 25.)
36 At trial, Whelan was candid that a motive for the Hospital’s posi-
tion was “not want[ing[ to trip that whole discovery and discussion
about the books in the hospital.” This was clearly a reference to avoid-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD30
Thus, all the while affirmatively denying an inability to pay,
the Hospital continuously cited and relied on economic losses
that “required” Union “givebacks.” Meanwhile, the Union
looked at data that showed the Hospital operating with a com-
fortable surplus. The merits of these competing claims are not
the point. The point is that this contradiction and the debate
over the hospital’s finances generally, reasonably, predictably,
and inexorably drove the negotiations where they went: toward
analysis of the situation by competing financial experts.
While careful to avoid any admission that it was required to
provide the Union financial information, by February the Hos-
pital began to make information available, albeit on its own
terms. In an effort to makes its case, on February 12 it brought
in COO Bodenmann to make a financial presentation to the
Union, in the hopes that it would help bring the Union along.
DeJesus believed it had helped the parties in the SEIU-Hospital
negotiations (which were successfully completed in October
2105, approximately 10 months after negotiations began).
At the February 12 meeting, the Union requested a copy of
Bodenmann’s presentation. Whelan sent Gordon a copy of the
powerpoint slides used by Bodenmann in the presentation on
February 27. This was the first time Gordon had been provided
with this information for the Union’s use. Gordon passed this
information on to union researchers to evaluate.
Whelan then offered to bring the financial discussions to a
higher level, saying that “we would be happy” to have Boden-
mann “get together with anybody [on the Union] side to walk
through the financials and prove their understanding of our
financial positions.” The Union accepted this offer when on
March 20 Gordon told the Hospital bargainers that the parties
needed to get their “financial people together.”
At this meeting, Whelan committed to have a financial meet-
ing with Bodenmann and the Union’s financial expert. At the
same time, he made clear that such a meeting would not change
the Hospital’s mind—its purpose was to change the Union’s
mind.37
Gordon, for his part, allowed that that might happen. Gor-
don said, “well, we need to know the facts. We’re willing to
take zeros at other places, but we don’t see that here on our
financials. And there’s floating and successorship.” DeJesus
testified that Gordon said on March 9: “when it's financially
necessary that they've taken zeroes elsewhere, but it's not finan-
cially necessary here, so there's no need for them to take zeroes
at Tobey.”
Gordon said that the Union “[m]ay take a softer stand with
[its] proposals,” it “[d]epends on [the] financial positions.”
Hospital employee and union committeewoman Miksch de-
scribed the bargaining situation as follows:

ing the Board’s longstanding doctrine, approved by the Supreme Court
in NLRB v. Truitt Mfg. Co., 351 U.S. 149, 152–153 (1956), requiring
that when an employer pleads an inability to pay in the context of col-
lective bargaining, that employer has an obligation under Sec. 8(a)(5),
upon request, to provide financial data substantiating its plea.
37 Whelan testified that he knew “the financial talks were important
to help [the Union] understand, but we knew the financials and the
financial discussion would not change our position.” Whelan told
Gordon this: the “[r]eality is the reports will not change our position.
We know what we know.”
[A]s far as the money thing, they sort of kept saying that there
was no room to discuss. And we were still waiting for the fi-
nancial report. So it kind of—sort of tied our hands a little bit
not being able to verify an of their information moving for-
ward. . . . [I]f we knew really what the financial report was
and could look at it and evaluate it, then moving forward we
could know how to negotiate.
Thus, at this point, by March 20, the parties, at the Hospital’s
invitation, had committed to a meeting of the financial experts,
the outcome of which Gordon told the Hospital would be criti-
cal to the Union’s positioning. Indeed, Gordon cancelled the
next negotiating session, March 30, “until our financial people
sit down and meet with the hospital’s financial people.”
Whelan objected, complaining that the Union had taken too
long to arrange a financial expert, but Gordon replied:
As I have stated both at the table and to you on the phone the
union cannot respond to any package offer until we have re-
viewed the Hospital[‘]s finances. In regards to your statement
that the process has gone on long enough, what is long
enough? We have had a total of seven (7) sessions, while re-
questing mediation after only five (5) sessions, something I've
never seen in my thirty plus years of doing this.
The Union took the search for an expert seriously, engaging the
Union’s executive director to retain an expert with significant
experience and multiple credentials. The “financial” meeting
occurred April 8. It was not an easy meeting, but new Hospital
financial information and opinions were shared. Whelan de-
manded dates for further meetings. Gordon told Whelan,
I can give you a tentative date, but until I have the report back
from Mr. Hyde I don’t know where I can go with this. Be-
cause I wanted to get the report from him. . . . So I asked
[Whelan] to wait, but [Whelan] said no, we need to get a date.
Before the tentative meeting date of April 15, Gordon told
Whelan “I won’t have the report till next week. Not sure it’s
worth meeting tomorrow.” Whelan responded: “we need to
meet. We will see you in the morning.” Gordon responded,
“Why do we need to meet? I explained when we set this meet-
ing it was tentative.” Gordon also testified that he orally told
Whelan that he “needed the report” from Hyde before he could
negotiate further.
On this record, it is impossible to say that the parties were at
a good faith impasse on the financial issues when, on April 15,
the Hospital declared impasse and announced its intention to
implement. With the differing views of the Hospital’s finances
squarely at issue, the Union, at the Hospital’s invitation, had
gone down the path of retaining an expert, having a meeting
with the Hospital devoted to the Hospital’s finances, and was
awaiting the experts’ report. The fact that this was over issues
on which the Hospital had made clear were the price of an
agreement only increases the importance of the Union being
provided the opportunity to complete the review process as part
of good-faith bargaining.
Impasse is “that point in time in negotiations when the par-
ties are warranted in assuming that further bargaining would be
futile.” Pillowtex Corp., 241 NLRB at 46. Impasse requires
SOUTHCOAST HOSPITALS GROUP, INC. 31
that “[b]oth parties must believe that they are at the end of their
rope.” PRC Recording Co., 280 NLRB 615, 635 (1986), enfd.
836 F.2d 289 (7th Cir. 1987). That the Hospital had reached its
final position does not demonstrate that the Union has, and
therefore, that there was impasse. Grinnell Fire Protection,
328 NLRB 585, 586 (1999) (even assuming arguendo that the
Respondent has demonstrated it was unwilling to compromise
any further, we find that it has fallen short of demonstrating
that the Union was unwilling to do so”). Moreover, “[t]he fact
that Respondent believed that the Union would never agree to
Respondent's . . . proposals does not establish an impasse.” The
Ford Store San Leandro, 349 NLRB 116, 121 (2007).
Under the circumstances, the Union’s retention of an expert,
bringing him to the meeting, and awaiting his report renders the
assumption that further bargaining would be futile, mere un-
warranted speculation. It rebuts the claim that “both parties
believe that they are at the end of their rope” (emphasis added).
Indeed, it also rebuts the argument that, reasonably, the Hospi-
tal should have been at the end of its rope, as it could not know
whether—and, if it was bargaining in good faith it should have
been hoping—that the consideration of the experts’ views
would serve to move the Union to or dramatically toward its
position.38
I note that the Respondent contends (R. Br. at 2, 40–41, 52,
65) that throughout negotiations Gordon repeatedly signaled
that the Union was inflexible in its rejection of the wage freeze
by stating that the Union would never “take zeros.” This is
wrong. First of all, such unequivocal statements are absent
from the numerous witness bargaining notes offered into evi-
dence. Gordon denied ever saying any statement to the effect
that he would never take zeros, or wouldn’t take zeros in the
future (he admitted complaining that he had taken them in the
past). Most important, the bulk of the testimony attributed to
Gordon on this score makes clear that Gordon’s statements
about zeros were statements indicating that what he saw in the
Hospital’s finances did not warrant the Union “taking zeros.”39

38 And, of course, in the absence of impasse, notwithstanding the
Hospital’s insistence that it would never alter its position on these is-
sues, the requirements of good-faith bargaining must leave some legal-
ly-required possibility that reason, discussion, and movement by the
Union could lead to compromise on the Hospital’s end.
39 See, e.g., DeJesus’ testimony: “John [Gordon] said, well, we need
to know the facts. We’re willing to take zeros at other places, but we
don’t see that here on our financials,” and DeJesus testified that it was
a “theme” of Gordon’s that he would say “when it's financially neces-
sary that they've taken zeroes elsewhere, but it's not financially neces-
sary here, so there's no need for them to take zeroes at Tobey.“ Jezier-
ski agreed that in the first two meetings Gordon said that “the union
should not have to take a zero” because “the Union’s feeling is that
Southcoast was making plenty of money.” Miksch testified, “I recall
him saying that we had taken zeros before, [but] . . . you had shown a
profit.” Gordon testified about having discussions at the bargaining
table about “the Union’s feeling that Southcoast was making plenty of
money so why should we have to take a zero.”
Mangini testified in sweeping fashion that Gordon “[r]epeatedly said
he would not take zeros.” However, when challenged on cross-
examination, she declared that “it was stated on a couple of occasions
where I did write it down, because it was notable.” But it was not in
her notes. I believe that she remembers him saying the word zero, but I
Thus, the record evidence of Gordon’s talk of zeros does not
reflect intransigence, but the heightened important of the par-
ties’ ongoing discussions to reveal and explain the Hospital’s
financial situation to the Union. Gordon’s message was the
opposite of what the Hospital claims: he was open to “zeros” if
the Hospital’s claims of need could be substantiated and ex-
plained. And this is precisely the exercise the parties were
engaged in when the Respondent declared impasse and imple-
mented.
Here, both parties engaged in but did not complete a pro-
cess—suggested by and committed to by the Hospital—which
was designed specifically to provide the Union information on
the rationale for the Hospital’s bargaining position. Although
the Union was not waiting on information from the Hospital (as
to wages, pension, or holiday), the Hospital knew that the Un-
ion was waiting on a report being prepared based on the signifi-
cant amount of information the Hospital had provided to the
Union-retained expert for the first time in the April 8 meeting.
This is more than analogous to—it is precisely the same reason-
ing behind—the well-settled rule that the failure to provide a
union information on a core issue precludes a valid bargaining
impasse.40
On April 15 there was no impasse. Rather, there was impa-
tience and determination to declare impasse and implement by
a date certain, for reasons unrelated to the bargaining process.
In this April 15 meeting Whelan admitted, what is easily in-
ferred from the record: the Hospital was determined to imple-
ment before April 20 in order to deny the nurses premium pay
for the Patriots’ Day holiday. Accused of this by Gordon,
Whelan agreed (“exactly right” or words to those effect).
There is nothing wrong with this motivation for the holiday
proposal. But it does not justify prejudicing and short circuit-
ing the statutory bargaining process. It does not justify declar-
ing impasse and implementing when there is not one, when the
Hospital knows that the Union is awaiting the report from the
financial expert that it hired to meet with the Hospital over the
Hospital’s finances. The Hospital created an artificial deadline
for bargaining that was inconsistent with its statutory obligation
to bargain in good faith. See Whitesell Corp., 352 NLRB 1196,
1197–1198 (2008) (no impasse where employer sought sub-
stantial changes, but put artificial deadline on negotiations, and
where parties had exchanged proposals day before employer
declared impasse), affirmed and adopted, 355 NLRB 635
(2010). See also, CBC Industries, 311 NLRB 123, 127 (1993)
(no impasse where “Respondent was determined to abandon
certain terms of the contract at its expiration irrespective of the

believe she left out the context—Gordon made it clear in his statements
that it was the discussions of the Hospital’s financial condition that was
going to be central to the course of these negotiations and his willing-
ness to “take zeros.”
40 E.I. du Pont de Nemours & Co., 346 NLRB 553, 558 (2006) (“It is
well settled that a party's failure to provide requested information that is
necessary for the other party to create counterproposals and, as a result,
engage in meaningful bargaining, will preclude a lawful impasse”),
enfd. 489 F.3d 1310, 1316 (D.C. Cir. 2007) (“Board and court prece-
dents reflect the principle that a denial of information relevant to the
core issues separating the parties can preclude a lawful impasse” (inter-
nal quotation omitted).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD32
state of negotiations”).41
The Hospital’s defense, essentially, is that it had “waited
long enough” (R. Br. at 62) for the Union to come around.
In the first place, this contention is meritless given that the
Hospital had willingly participated in the process of meeting
with the Union-retained financial expert, a meeting that had
occurred 1 week before the declaration of impasse and imple-
mentation.
But equally, there is an unconvincing highhandedness to the
Hospital’s contention that it has suffered long enough with the
collective-bargaining process. Its complaints about union delay
in the bargaining process are extremely one-sided. To be sure,
Gordon cancelled a number of meetings, for a variety of rea-
sons, but follow-up meetings were always quickly held (except
when the Hospital could not meet for an extended period).42
However, it was the Hospital that by all record evidence did
not respond to the Union’s June 2014 notice seeking to begin
successor negotiations in July, until September 24. It was the
Hospital, not the Union that suggested extending the 2012
Agreement beyond September 30 because of the delay in start-
ing negotiations. It was the Hospital, not the Union that was
too busy
to meet and bargain during the entire month of October re-
sulting in the first introductory meeting occurring November
10. It was the Hospital, not the Union that did not want to meet
between January 7 and January 30, as it attended to other press-
ing matters. The sum is nearly 4 months of delay directly at-
tributable to the Hospital. The Respondent declared impasse
less than 5 months after the first substantive bargaining session
on November 25.
And, of course, it was the Hospital that did not put its full
wage proposal on the table until March 9, at which time it made
a significant regressive wage proposal in the form its step
freeze. The Hospital is in no position to blame the Union for
the fact that the parties were still negotiating as its artificial
deadline of April 20 approached.
Moreover, there is simply nothing to the Hospital’s claims
that the Union unreasonably delayed negotiations in a manner
that justified the Hospital calling it quits, or that suggests bad
faith. The Hospital suggests that union cancellations were a
way to extend negotiations and points out that the Union had an

41 The Hospital makes no claim that “dire financial emergency” or
other “extraordinary events which are an unforeseen occurrence” justi-
fied its unilateral implementation.” RBE Electronics, 320 NLRB 80, 81
(1995). Of course, such an argument could not even be mounted with
regard to the need to implement the holiday proposal. Although
Whelan testified that “the savings was significant,” neither he nor De-
Jesus had calculated the cost of the proposal and they did not know the
cost.
42 Gordon cancelled a December 11 meeting to attend another union
meeting at his boss’s direction; a January 6 meeting to attend an unre-
lated arbitration, a February 17 meeting for unspecified reasons, a
February 27 meeting because the Hospital had failed to arrange in
advance to release his committee members from work (which Gordon
assumed was for good reason relating to the patient care needs of the
Hospital. a March 4 meeting due to a family health emergency, and the
March 31 meeting because he wanted the financial meeting before there
were further meetings.
interest in delay, as the status quo worked to the employees’
economic advantage. Putting aside the fact that the Hospital
was responsible for as much or more delay than the Union, it is
true, without a doubt, that in concessionary bargaining, a union
has an incentive to delay. Equally, and conversely, an employ-
er has an incentive to move quickly to impasse. The issue is
whether either party acted on their “incentive” in a manner that
undermined the bargaining process. The record does not sup-
port it with regard to the Union. But it is vividly demonstrated
by the Hospital’s premature declaration of impasse on April
15.43
It is axiomatic that impasse or good faith cannot be measured
solely by the number of bargaining sessions or the overall
length of negotiations. One can (and the parties do) cite cases
where impasse is reached in a couple of months after only a
few bargaining session, and cases where impasse is not found
after much longer periods and many bargaining sessions. Hav-
ing said, that there is nothing in the length or pace of these 4-
1/2 months of negotiations, with no more than eight meetings,
that suggests an objective basis in the Union’s conduct for the
Hospital’s impatience. As noted above, the Hospital’s impa-
tience was rooted in an artificial deadline that interrupted the
bargaining process.44
In sum, I reject the Hospital’s claim that declaring impasse
was justified because the bargaining moved too slowly. The
Hospital had a significant hand in the pace, and agreed to the
consultation and review of the finances by a union-retained
expert. It may well be that the parties would have reached im-
passe in due course, but we cannot say. As the Board stated in
Powell Electrical Mfg., 287 NLRB 969, 973 (1987), enfd. in
relevant part, 906 F.2d 1007 (5th Cir 1990)
That there was no impasse when the Company declared is not
to suggest that if the parties continued their sluggish bargain-
ing indefinitely there would have been agreement on a new
contract. Such a finding is not needed, nor could it be made
without extra-record speculation, to find on this record that
when the Company declared an impasse there was not one,
even as far apart as the parties were. They had most of their
work ahead of them, and judging by the opening sessions
clearly had different goals in mind for a contract. Whether
their differences ever would have been resolved cannot be
known; but that is the nature of the process. It is for the parties
through earnest, strenuous, tedious, frustrating and hard bar-
gaining to solve their mutual problem—getting a contract—
together, not to quit the table and take a separate path.

43 It is notable that the Hospital complained about Gordon’s cancel-
lations even in 2013–2014 during the reopener negotiations. Whether
the Hospital liked Gordon’s bargaining style or not, his style was not
any different in the spring of 2014 than it was in previous negotiations.
The Hospital’s suggestions that in the spring of 2014 Gordon was en-
gaged in a bad-faith attempt to delay to avoid impasse is unsupported.
44 I reject the Hospital’s assertion (R. Br. at 62) that it “did not de-
clare impasse until it was clear—after 18 months that [the Union]
would not make meaningful movement.” This kind of overstatement
does not serve the Respondent well. It is based on the parties’ failure to
reach an agreement during the 2013 reopener negotiations. Of course,
not only was that a different negotiations, with a different legal context,
but it involved a different array of proposals.
SOUTHCOAST HOSPITALS GROUP, INC. 33
I find that the there was no impasse on the critical financial
issues on April 15, when the Hospital falsely declared impasse
and announced and began implementation of its final proposal.
The implementation violated Section 8(a)(5) and (1) of the
Act.45
CONCLUSIONS OF LAW
1. The Respondent Southcoast Hospitals Group is an em-
ployer within the meaning of Section 2(2), (6), and (7) of the
Act, and a health care institution within the meaning of Section
2(14) of the Act.
2. The Charging Party Massachusetts Nursing Association
(Union) is the designated exclusive collective-bargaining repre-
sentative of the following appropriate unit of the Respondent’s
employees
All registered nurses employed by Southcoast for its Toby
Hospital site, excluding the Director of Nursing, the Assistant
Director of Nursing, Nurse Managers, Administrative Super-
visors, managerial employees, supervisors, confidential em-
ployees, and all other employees.
3. The Respondent violated Section 8(a)(5) and (1) of the
Act, since on or about March 9, 2015, by failing and refusing to
furnish the Union with requested information regarding the
number of nurses who have utilized the extended FMLA leave,
information that is relevant and necessary to the Union’s per-
formance of its functions as the collective-bargaining repre-
sentative of the Respondent’s unit employees.
4. The Respondent violated Section 8(a)(5) and (1) of the
Act, beginning and since on or about April 15, 2015, by unilat-
erally implementing its bargaining proposal without first bar-
gaining to a valid bargaining impasse.
5. The unfair labor practices committed by Respondent affect
commerce within the meaning of Section 2(6) and (7) of the
Act.
REMEDY
Having found that the Respondent have engaged in certain
unfair labor practices, I find that it must be ordered to cease and
desist there from and to take certain affirmative action designed
to effectuate the policies of the Act.
The Respondent shall provide the Union with the infor-
mation that it has to date failed and refused to provide that was
requested by the Union regarding the number of nurses using
the extra four weeks of FMLA leave, as described in the deci-
sion in this matter.

45 To the foregoing, it can be added that the Union’s reduction in its
wage demand in the April 15 meeting (along with several other signifi-
cant changes to its position), even while it was still awaiting the ex-
pert’s report, points away from impasse. This was not a promise of
movement on critical issues—it was movement. Larsdale, Inc., 310
NLRB at 1319 (“Union’s counterproposal on this date, containing a
number of concessions, was a sign that the Union was willing to modi-
fy its proposals. Given this movement by the Union, the Respondent
was not justified in concluding that negotiations were at impasse simply
because the Union's concessions were not more comprehensive or
sufficiently generous”). But clearly, the Hospital was determined to
quit the bargaining process on April 15, regardless of circumstances.
The Respondent shall be ordered, upon the request of the
Union, to rescind those changes encompassed within the im-
plementation of its final offer and restore the status quo ante,
and shall be ordered to make whole any bargaining unit em-
ployees for losses suffered as a result of the Respondent’s un-
lawful actions. The make-whole remedy shall be computed in
accordance with Ogle Protective Service, 183 682 (1970), enfd.
444 F.2d 502 (6th Cir. 1971), with interest as prescribed in New
Horizons, 283 NLRB 1173 (1987), and compounded daily as
prescribed in Kentucky River Medical Center, 356 NLRB No. 6
(2010). In accordance with Don Chavas, LLC d/b/a Tortillas
Don Chavas, 361 NLRB No. 10 (2014), the Respondent shall
compensate any employees adversely affected by the unlawful-
ly changed policies for the adverse tax consequences, if any, of
receiving lump sum backpay awards, and file with the Regional
Director for Region 1 a report allocating the backpay awards to
the appropriate calendar year for each employee.
The Respondent shall be ordered, before implementing any
changes in wages, hours, or other terms and conditions of em-
ployment of unit employees, to notify and, on request, bargain
with the Union.
The Respondent shall post an appropriate informational no-
tice, as described in the attached appendix. This notice shall be
posted at the Respondent's facilities wherever the notices to
employees are regularly posted for 60 days without anything
covering it up or defacing its contents. In addition to physical
posting of paper notices, notices shall be distributed electroni-
cally, such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent customar-
ily communicates with its employees by such means. In the
event that, during the pendency of these proceedings the Re-
spondent has gone out of business or closed a facility involved
in these proceedings, the Respondent shall duplicate and mail,
at its own expense, a copy of the notice to all current employ-
ees and former employees employed by the Respondent at any
time since March 9, 2015. When the notice is issued to the
Respondent, it shall sign it or otherwise notify Region 1 of the
Board what action it will take with respect to this decision.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended46
ORDER
The Respondent Southcoast Hospitals Group, Inc., Ware-
ham, Massachusetts, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Refusing to bargain collectively with the Union by failing
and refusing to furnish it with requested information that is
relevant and necessary to the Union’s performance of its func-
tions as the collective-bargaining representative of the Re-
spondent’s unit employees.
(b) Refusing to collectively bargain with the Union by

46
If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD34
changing the terms and condition of employment of its unit
employees without first bargaining to a lawful impasse with the
Union.
(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.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Furnish the Union the information requested March 9,
2015, regarding the number of nurses that have used the FMLA
benefit.
(b) Upon the Union’s request, rescind the changes in the
terms and conditions of employment for its unit employees that
were unilaterally implemented on and after April 15, 2015, as
part of the implementation of its final bargaining offer.
(c) Make employees whole for any loss of earnings or other
benefits suffered as a result of the unlawful unilateral imple-
mentation of changed terms and conditions of employment, in
the manner set forth in the remedy section of the decision.
(d) Compensate any employees adversely affected by the un-
lawfully unilaterally implemented terms and conditions for the
adverse tax consequences, if any, of receiving lump sum back-
pay awards, and file with the Regional Director for Region 1 a
report allocating the backpay awards to the appropriate calen-
dar year for each employee.
(e) Before implementing any changes in wages, hours, or
other terms and conditions of employment of unit employees,
notify and, on request, bargain with the Union as the exclusive
collective-bargaining representative of employees in the fol-
lowing bargaining unit:
all registered nurses employed by Southcoast for its Tobey
Hospital site, excluding the Director of Nursing, the Assistant
Director of Nurses, Nurse Managers, Administration Supervi-
sor, managerial employees, supervisor, confidential employ-
ees, and all other employees.
(f) Within 14 days after service by the Region, post at its fa-
cilities in Wareham, Massachusetts, copies of the attached no-
tice marked "Appendix." 47 Copies of the notice, on forms
provided by the Regional Director for Region 1, after being
signed by the Respondent's authorized representative, shall be
posted by the Respondent and maintained for 60 consecutive
days in conspicuous places, including all places where notices
to employees are customarily posted. In addition to physical
posting of paper notices, notices shall be distributed electroni-
cally, such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent customar-
ily communicates with its employees by such means. Reasona-
ble steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other mate-
rial. In the event that, during the pendency of these proceed-
ings, the Respondent has gone out of business or closed the

47 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the
Respondent at any time since March 9, 2015.
(g) Within 21 days after service by the Region, file with the
Regional Director for Region 1 a sworn certification of a re-
sponsible official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.
Dated, Washington, D.C. March 7, 2016
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
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT refuse to furnish the Union with information
requested by the Union that is relevant and necessary for the
Union to fulfill its role as your collective-bargaining repre-
sentative.
WE WILL NOT change your terms and conditions of employ-
ment without first bargaining to a lawful impasse with the Un-
ion.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights listed above.
WE WILL furnish the Union in a timely manner the infor-
mation requested by the Union on March 9, 2015.
WE WILL, upon the Union’s request, rescind the changes in
the terms and conditions of employment for our unit employees
that were unilaterally implemented as part of our bargaining
offer, beginning on April 15, 2015.
WE WILL make employees whole for any loss of earnings and
other benefits suffered as a result of our unlawful implementa-
tion of bargaining offer, plus interest.
WE WILL compensate employees for the adverse tax conse-
quences, if any, of receiving lump-sum backpay awards, and
WE WILL file with the Regional Director for Region 1 of the
NLRB a report allocating the backpay awards to the appropriate
calendar year for each employee.
WE WILL before implementing any changes in wages, hours,
or other terms and conditions of employment of unit employ-
ees, notify and, on request, bargain with the Union as the exclu-
sive collective-bargaining representative of our employees in
the following bargaining unit
SOUTHCOAST HOSPITALS GROUP, INC. 35
all registered nurses employed by Southcoast for its Tobey
Hospital site, excluding the Director of Nursing, the Assistant
Director of Nurses, Nurse Managers, Administration Supervi-
sor, managerial employees, supervisor, confidential employ-
ees, and all other employees.
SOUTHCOAST HOSPITALS GROUP
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/01–CA–150261 or by using the QR code be-
low. Alternatively, you can obtain a copy of the decision from the
Executive Secretary, National Labor Relations Board, 1015 Half
Street, S.E., Washington, D.C. 20570, or by calling (202) 273-
1940.