Spectrum Health

National Labor Relations Board - Administrative Judge Opinions

Sep 4, 2008

07-CA-050996 (N.L.R.B. Sep. 4, 2008)

JD–46–08
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SPECTRUM HEALTH – KENT COMMUNITY CAMPUS,
and Cases GR–7–CA–50996
GR–7–CA–51112
INTERNATIONAL UNION, UNITED AUTOMOBILE,
AEROSPACE AND AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA, AFL–CIO, and its LOCAL 2600.
A. Bradley Howell, Esq. (Region 7, NLRB)
of Grand Rapids, Michigan, for the General Counsel
Peter J. Kok, Esq. and Nathan D. Plantinga, Esq. (Miller Johnson)
of Grand Rapids, Michigan, for the Respondent
Georgi-Ann Bargamian, Esq., (UAW Legal Department)
of Detroit, Michigan, for the Charging Party
DECISION
INTRODUCTION
DAVID I. GOLDMAN, Administrative Law Judge. These cases involve an employer that
withdrew recognition from its employees’ union during the term of a collective-bargaining
agreement, repudiated the collective-bargaining agreement, and unilaterally implemented
changes to the terms and conditions of employment. The employer took these steps after it
received a petition from the majority of its employees declaring that they no longer wanted to be
represented by the union.
Under well-settled precedent a union enjoys an irrebuttable presumption of majority
support for so much of the term of a labor contract that is a “reasonable length”—for many
years interpreted by the Board as up to three years. During the first three years of a contract,
evidence of an ebb in employee support for the union does not provide a basis for employer
“self help”—i.e., unilateral withdrawal of recognition of the union—any more than a midterm ebb
in support for a president or congressman permits their ouster.
The contract in this case was agreed to, ratified, executed, and by its terms “effective” in
April 2005. It was scheduled to expire at 12:01 a.m. April 1, 2008. Accordingly, contend the
union and the General Counsel, the employer’s January 2008 withdrawal of recognition was not
permitted under longstanding Board precedent not disputed by the employer.
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This would end the matter, however, the employer points to the cover page of the
contract. On the cover page, across the bottom, are the words, “Date of Agreement: January 1,
2005 through March 31, 2008.” This language, argues the employer, unambiguously shows
that the contract had a term that began January 1, 2005, and concluded at the end of March
31, 2008. Accordingly, contends the employer, when confronted with evidence of a lack of
majority support for the union in January 2008, the irrebuttable presumption of majority support
had lapsed and the employer was free, indeed, required, to withdraw recognition from the
union, repudiate the contract, and, thereafter, free to unilaterally alter terms and conditions of
employment.
Alternatively, the employer contends that if the cover page renders the contract’s term
ambiguous and unclear, then the irrebuttable presumption of majority support was ineffective
as a matter of law. Looking to principles utilized by the Board in applying its representational
contract bar doctrine, the employer argues that ambiguity in the written document precludes
reliance on the irrebuttable presumption of majority support to bar the withdrawal of recognition.
STATEMENT OF THE CASE
The International Union, United Automobile, Aerospace and Agricultural Implement
Workers of America (UAW), and its Local 2600 (collectively, the Union or UAW) filed an unfair
labor practice charge against Spectrum Health–Kent Community Campus (the Hospital or
Spectrum) on January 15, 2008, docketed as Case GR–7–CA–50996. The Union filed an
amended charge in the case on March 4, 2008. Based on the charge and amended charge, on
March 6, 2008, the Regional Director of Region 7 of the National Labor Relations Board
(Board), acting on behalf of the Board’s General Counsel, filed a complaint against the Hospital
alleging violations of Section 8(a)(1) and (5) of the Act. The Hospital filed a timely answer to
the complaint denying all violations of the Act. On March 10, 2008, the Union filed an additional
charge against the Hospital, docketed as GR–7–CA–51112. On April 9, 2008, the Regional
Director issued an Order consolidating the two cases and issued a consolidated amended
complaint alleging violations of 8(a)(1), (3), and (5) of the Act. The Hospital filed a timely
answer to the consolidated complaint denying all violations of the Act.
This dispute was heard in Grand Rapids, Michigan, on June 10, 2008. Counsel for the
General Counsel, the Union, and Respondent filed briefs in support of their positions on August
8, 2008. On the entire record, I make the following findings of fact, conclusions of law, and
recommendations.
JURISDICTION
The complaint alleges, Spectrum admits, and I find that Spectrum is an employer
engaged in commerce 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. The complaint alleges, Spectrum
admits, and I find that the UAW and Local 2600 are labor organizations within the meaning of
Section 2(5) of the Act.
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ALLEGED UNFAIR LABOR PRACTICES
Facts
Background
Respondent operates a hospital in Grand Rapids, Michigan, where it provides
specialized long term acute care, more general long term care, sub-acute care, and outpatient
neurological services.
Since about October 1999, and continuing through January 7, 2008, when Spectrum
withdrew recognition, the Union had been the designated exclusive collective-bargaining
representative of a bargaining unit of Spectrum’s employees.1
The 2002 and 2005 Agreements
The parties have entered into successive collective-bargaining agreements covering the
bargaining unit, the most recent of which was executed April 15, 2005 (the 2005 Agreement or
the Agreement).
The collective-bargaining agreement preceding the 2005 Agreement was effective by its
terms from January 1, 2002, through December 31, 2004 (the 2002 Agreement). The 2002
Agreement states at the bottom of the cover page:
“Date Of Agreement: January 1, 2002 Through December 31, 2004”

1This bargaining unit consisted of the following:
All full-time and regular part-time employees occupying the classifications of
Activity Aide, Administrative Services Tech, Assessment Counselor, BS & MSW
Social Worker, Carpenter, Cashier, CNA (Certified Nurses Aide), CNA-
Restorative, COTA (Certified Occupational Therapy Assistant), Cook, CSR
Technician, Customer Service Representative, Environmental Services Tech I,
Environmental Services Tech II, Food Service Team Leader, Food Service
Worker, Laundry/Linen Tech, Licensed Practical Nurse, LPN-Restorative,
Maintenance Repair Worker, Medical Secretary, Nursing Tech, Occupational
Therapist, Primary Counselor, Receptionist, Recreational Technician,
Recreational Therapist, Restorative Technician, Shipping/Inventory Worker,
Support Counselor, and Unit Support Assistant employed by Respondent at its
Kent Community Campus facility; but excluding all executive, supervisory,
confidential, professional, irregular, seasonal, and temporary employees,
guards, student interns, all employees classified as Registered Nurses, and all
other employees.
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Consistent with this legend, the initial paragraph of the agreement, under the heading
“AGREEMENT,” states,
This is an Agreement by and between SPECTRUM HEALTH – KENT
COMMUNITY CAMPUS (“Hospital”) and LOCAL 2600, THE INTERNATIONAL
UNION , UNITED AUTOMOBILE, AEROSPACE, AND AGRICULTURAL
IMPLEMENT WORKERS OF AMERICA (“Union”), effective January 1, 2002.
Again, consistent with the legend on the cover page, the “Termination” provision
of the 2002 Agreement states, in relevant part: “This Agreement shall remain in force
until midnight, December 31, 2004 . . .”
The Hospital and the Union began negotiating the successor agreement to the
2002 Agreement on November 3, 2004.
In the process of bargaining for the new agreement, the Hospital and the Union agreed
to extend the 2002 Agreement to January 15, 2005. The contract extension expired on
January 15, 2005, and the parties did not agree to extend the contract beyond January 15,
2005. Between January 15, 2005, and April 13, 2005—the date that the 2005 Agreement was
ratified—there was no collective-bargaining agreement in effect.
On January 14, 2005, The Hospital provided the Union with a draft contract embodying
what it referred to as its final proposal, which, with a few new changes, had been submitted to
the Union on January 7, 2005. The draft contract had changes from the 2002 Agreement in
shaded text, and the draft was referred to as the “blue draft” or “blue paper,” apparently
because it was printed on blue paper. This draft contract indicated an effective date of January
1, 2005, and a termination date of 12:01 a.m., November 2, 2007. Consistent with this, the
legend across the bottom of the cover page of the draft contract stated: “Date Of Agreement:
January 1, 2005 Through November 1, 2007.”
On February 7, 2005, the Union submitted the Hospital’s final offer to its membership for
ratification. The membership rejected the proposal. Subsequently, on March 2, 2005, the
Hospital proposed changes to its earlier final proposal with regard to overtime, retiree benefits,
and one job classification. In all other respects, the Hospital’s amended final offer renewed “its
Final Offer as reflected in its January 14, 2005, draft collective-bargaining agreement (blue
paper).” Further negotiations followed.
According to the “minutes” of the March 23, 2005 negotiations session prepared by the
Hospital’s lead negotiator, Joseph Martin, during that meeting the following exchange occurred:
Noting that the parties’ tentative agreement that the collective-bargaining
agreement will expire on November 2, 2007, Joe Martin asked whether the
parties should consider instead entering into a 3 year agreement which would
expire three years after ratification/final approval by the Union. The parties will
consider this possibility, but absent agreement to the contrary, the contract
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would expire as previously agreed (i.e.: November 2, 2007).
On March 31, 2005, the parties had their final bargaining session. Spectrum proposed
revised wage and health insurance provisions, including wage increases for current employees
that would be retroactive to January 1, 2005, if the agreement was approved within a still-to-be
determined date in the near future. The March 31 proposal stated, in part, that wages for
current employees would be
[r]etroactive to January 1, 2005, if final contract approval by the Union occurs
by __________________ (April 7?). Hospital offer of retroactivity automatically
expires after that date. [original emphasis].
Spectrum’s March 31 proposal for future hires was different. It provided, inter alia:
Annual increase dates to be as of anniversaries of contract effective date, not
“January 1”.
In addition, Spectrum’s March 31 proposal included health insurance changes, including
provisions applying to employee retiring after January 1, 2005, and a capping of premiums at
certain levels between January 1 and December 31, 2005.
By the end of the March 31 meeting the parties reached tentative agreement on a new
contract, subject to ratification. The tentative agreement included proposals on retroactivity
offered by the Hospital. On April 13, 2005, the Union membership voted in favor of approving
this tentative agreement. On April 14, 2005, the Hospital’s lead negotiator Martin forwarded a
draft of the collective-bargaining agreement to the Union. On April 14, 2005, the Hospital and
the Union executed the agreement. Upon its implementation, following ratification, negotiated
wage increases for "incumbent employees" were made retroactive to January 1.
The initial paragraph of the 2005 Agreement, under the heading “AGREEMENT,” states,
This is an Agreement by and between SPECTRUM HEALTH – KENT
COMMUNITY CAMPUS (“Hospital”) and LOCAL 2600, THE INTERNATIONAL
UNION , UNITED AUTOMOBILE, AEROSPACE, AND AGRICULTURAL
IMPLEMENT WORKERS OF AMERICA (“Union”), effective April 13, 2005.
The “Termination” provision of the 2005 Agreement states, in relevant part:
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“This Agreement shall remain in force until 12:01 a.m., April 1, 2008 . . .“
Stated across the bottom of the cover page of the 2005 Agreement is the following:
“Date Of Agreement: January 1, 2005 Through March 31, 2008.”
The January 2008 Withdrawal of Recognition and Subsequent Events
The Hospital withdrew recognition from the Union on January 7, 2008, during the term
of the 2005 Agreement. The Hospital took this step based on its receipt of a petition signed by
a majority of the bargaining unit.2
The next day, on January 8, the Hospital mailed a letter to all bargaining unit employees
addressed to "Former UAW Staff.” The letter was also posted in the facility on January 8. The
letter stated in part: "The current UAW contract will no longer be in effect." Attached to that
letter was a list of "Frequently Asked Questions" accompanied by answers provided by the
Hospital. On the question of dues the attachment stated that dues would no longer be
deducted from employee paychecks, effective "immediately." The Hospital did stop deducting
dues from employee paychecks on January 8, 2008. Following its withdrawal of recognition,
the Hospital denied a grievance filed under the collective-bargaining agreement on the basis
that the issue would be handled under its (nonbargained) “fair treatment policy.”
The Hospital held meetings for all employees beginning January 8. These meetings
took place primarily on January 8 and 9, and were conducted by top Hospital officials. A few
additional meetings with employees who were not in attendance on January 8 and 9 were held
on January 10–12. The Hospital informed employees at these meetings that it had withdrawn
recognition from the Union because it had received a petition signed by a majority of the
bargaining unit. Spectrum also stated that it was considering annual spring wage and benefit
adjustments.
During the week of February 25, 2008, the Hospital posted in its facility a notice of
"Town Hall Meetings" to be held on March 3 and March 7. The notice promised “Exciting News

2Although the petition is not in the record, the General Counsel concedes, and the
Union does not dispute, that the petition indicated that the employees did not want to be
represented by the Union. The parties disagree on whether the petition was signed by 142 or
143 of the 277 bargaining unit employees.
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For Former UAW Staff.” It stated:
Please, mark your calendar now!
You are invited to attend one of these Town Hall
meetings to hear about the exciting changes that will
affect you!
On March 3 and 7, the Hospital held the town hall meetings with employees at which it
announced that it had implemented (effective March 2) the following changes to the employees'
wages and benefits: an across-the-board wage increase of 4.25 percent; an additional 2
percent increase to all employees who scored 3.5 or better on their performance evaluations
from the prior year; 1.5 times the base rate for holiday hours worked instead of a 65 cents per
hour holiday wage premium; an increase in weekday shift premiums from 65 cents per hour to
$1 per hour for the 3 p.m. to 11 p.m. shift and the 11 p.m. to 7 a.m. shift; an increase in
weekend shift premiums from 65 cents per hour to $1.50 per hour for all shifts worked from 3
p.m. Friday to 7 a.m. Monday; a reduction from 12 to 6 months in the eligibility waiting period
for the Hospital’s short term disability plan; and movement of the bargaining unit employees
into the established pay ranges that existed for the Hospital’s nonunion employees.
At the meetings, Hospital officials also made reference to additional possible wage
adjustments in October 2008.
On March 17, the Hospital mailed a "Fact Sheet" to each employee which detailed the
changes to the individual's pay and identified his or her new pay rate.
On March 19, the Hospital mailed a letter to all employees addressed to "Former UAW
Staff." This letter identified changes in wages and benefits. It also referenced the likelihood of
a further pay increase in October 2008. The letter stated:
Finally, please note that all [Spectrum] non-union staff normally receives a pay
increase in October. We will also move you to the October pay cycle at which
time your compensation and performance will be evaluated. As such, you may
expect another compensation adjustment in October.
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Legal Analysis
a. The Withdrawal of Recognition
The Supreme Court has recognized that “[t]he object of the National Labor Relations Act
is industrial peace and stability, fostered by collective-bargaining agreements providing for the
orderly resolution of labor disputes between workers and employers.” Auciello Iron Works, Inc.
v. NLRB, 517 U.S. 781, 785 (1996). In furtherance of this objective, a core requirement of the
Act is that an employer must recognize and bargain with the designated exclusive
representative of an appropriate bargaining unit of employees. An employer’s failure to do so
constitutes a per se violation of Section 8(a)(5) of the Act.
The precondition for a union’s service as a bargaining unit’s exclusive representative is
the existence of majority support for the union within the unit. Auciello Iron Works, 517 U.S. at
785–786. This reflects “the Act’s clear mandate to give effect to employees’ free choice of
bargaining representatives.” Levitz Furniture Co. of the Pacific, 333 NLRB 717, 720 (2001).
However,
[t]he Board has also recognized that, for employees’ choices to be meaningful,
collective-bargaining relationships must be given a chance to bear fruit and so
must not be subject to constant challenges. Therefore from the earliest days of
the Act, the Board has sought to foster industrial peace and stability in collective-
bargaining relationships, as well as employee free choice, by presuming that an
incumbent union retains its majority status.
Levitz, supra at 720.
The presumption of majority support is usually rebuttable, but in some periods of a
collective-bargaining relationship it is conclusive. One such period is during the life of a
collective-bargaining agreement up to three years. Thus, it is a “long-established principle that
a union enjoys an irrebuttable presumption of majority support during the term of a collective-
bargaining agreement, up to 3 years.” Trailmobile Trailer, LLC, 343 NLRB 95, 97 (2004);
Levitz, supra at fn. 17 (“a union’s majority status may not be questioned during the life of a
collective-bargaining agreement up to 3 years”); Auciello Iron Works, 517 U.S. at 791 (rejecting
an exception “to the conclusive presumption [of majority support] arising at the moment a
collective-bargaining contract offer has been accepted”). See, Shaw’s Supermarkets, 350
NLRB No. 55 (2007) (employer may rely on evidence of (untainted) actual loss of majority
support to withdraw recognition after the third year of a contract of longer duration). This
presumption works in tandem with and conforms to Section 8(d) of the Act, which provides that
when a collective-bargaining agreement is in effect “the duty to bargain collectively shall also
mean that no party to such contract shall [unilaterally] terminate or modify such contract.” 29
U.S.C. § 158(d).
Here, Respondent offers (R. Br. at 13), correctly, that “[t]he central issue in this case is
the term of the Agreement.” If the term of the 2005 Agreement began more than three years
before the January 7, 2008 withdrawal of recognition, the irrebuttable presumption of majority
support had lapsed and would not bar the withdrawal. However, if the term of the Agreement
had begun within three years of the withdrawal of recognition, the irrebuttable presumption of
majority support rendered the withdrawal of recognition unlawful.
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Second, and alternatively, the Hospital contends that if the term of the 2005 Agreement
cannot unambiguously be gleaned from the four corners of the agreement, the irrebuttable
presumption of majority support cannot be relied upon to bar the withdrawal of recognition.
1. Had the term of the 2005 Agreement run beyond the three year
irrebuttable-presumption-of-majority-support period when
the employer withdrew recognition in January 2008?
As discussed, the irrebuttable presumption of majority support bars a unilateral
employer withdrawal of recognition during the first three years of a collective bargaining
agreement. The parties dispute whether the 2005 Agreement was within the three year period
when the Hospital withdrew recognition on January 7, 2008.
In determining the term of the Agreement, of importance, of course, is that the 2005
Agreement states that it was “effective” as of April 13, 2005. It became binding and fully
accepted upon ratification on that day. These facts are undisputed. Moreover, it is also
undisputed that there was no collective-bargaining agreement in effect from January 16, 2005
to April 13, 2005, when the 2005 Agreement became effective. While particular provisions of
the 2005 Agreement are expressly designated as being retroactive to January 1, 2005, the
effective date of the Agreement is not.
However, there is the question of the import of the cover page of the 2005 Agreement
that states, “Date Of Agreement: January 1, 2005 Through March 31, 2008.” Respondent
contends that this (and nothing else in the agreement) unambiguously states the term of the
Agreement and is just one more of several provisions of the 2005 Agreement retroactive to
January 1, 2005.
Although Respondent’s vigorous characterization of the cover page language crosses
from enthusiasm to hyperbole,3 it is true that were the 2005 Agreement silent about its effective
date and termination date Respondent’s argument would have more force. But the 2005
Agreement is not silent. The opening sentence of the 2005 Agreement states that “[this is an
Agreement . . . effective April 13, 2005.” The Agreement’s “Termination” provision states that
“This Agreement shall remain in force until 12:01 a.m., April 1, 2008.” These provisions—which
are at least as, if not more probative of the Agreement’s term than the cover page legend4—
render untenable the Hospital’s claim (R. Br. at 10), that the 2005 Agreement unambiguously,
and based solely on the cover page legend, was a contract commencing January 1, 2005, and
lasting for more than 3 years.
The Hospital attempts to avoid the conclusion that the combination of the cover page
dates and the effective/termination clauses render the Agreement’s term ambiguous with an
exceedingly strained construction of the Agreement. Respondent contends (R. Br. at 21) that

3Referring to this language, Respondent contends (R. Br. at 13):
its clarity is such that it resists further argument. It states what it states. What more
can be said? . . . . It requires no interpretation, evaluation or scrutiny. It states the
term of the Agreement, in plain language, to all interested parties.
4As the General Counsel points out, while the cover page lists the “Date of Agreement” as
January 1, 2005, through March 31, 2008, the contract more specifically sets forth the “effective
date” of the contract as April 13, 2005, and the “termination” date as April 1, 2008.
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while the contract first became “effective” on April 13, the cover page dates evidence the
parties’ intent to negotiate an Agreement that (retroactively) was intended to begin its term on
January 1, 2005, and terminate at the end of March 31, 2008. Thus, Respondent draws a
distinction between the effective date and termination date of the Agreement, on the one hand,
and the term of the Agreement, on the other. As explained (Tr. 26) by counsel at the hearing:
The agreement of the parties became effective on April 13, 2005, which is what
this document says. That date says nothing about the term of the agreement.
There is only one place in the four corners of this agreement where the term is
spelled out, the beginning and the ending, only one place, and that’s right on the
front page. That’s it.
This argument is extraordinary. As the Board has recognized in the somewhat different
circumstances of applying its contract bar doctrine to an election petition: “[t]he term of a
contract technically embraces the effective term provided in the instrument.” Ben Franklin Paint
& Varnish Co., 124 NLRB 54, 55 (1959). As Respondent concedes, the express effective term
in this Agreement is April 13, 2005. Respondent’s claim is wholly untenable as grounds for
claiming the 2005 Agreement unambiguously sets the term of the Agreement as January 1,
2005, to March 31, 2008. It relies on a supposed distinction between the effective/termination
dates expressly stated in the contract, on the one hand, and the alleged term of the agreement
on the other. That such a novel distinction was intended by the parties is anything but
unambiguous in the 2005 Agreement. Indeed, given that other retroactive provisions of the
2005 Agreement, such as the retroactive wage provision for incumbent employees, expressly
state that they are to be retroactively applied, the apparent conflict between the cover page of
this contract and the effective/termination dates of the Agreement presents itself as a
discrepancy that cannot be pounded by Respondent into an unambiguous expression of intent.
Accordingly, at best for Respondent’s argument, the 2005 Agreement is ambiguous as
to its term, which renders untenable the Hospital’s contention that the parol evidence rule bars
consideration of evidence beyond the four corners of the 2005 Agreement to assist in resolving
that ambiguity. Doubletree Guest Suites Santa Monica, 347 NLRB No. 72, slip op. at 3 (2006)
(parol evidence may not be offered “for the purpose of varying or contradicting the terms of a
contract. When a contract's meaning is ambiguous, however, parol evidence is admissible for
the purpose of resolving that ambiguity”); Sansla Inc., 323 NLRB 107, 109 (1997). Thus, Board
precedent is clear that
[i]n contract interpretation matters like this, the parties' actual intent underlying
the contractual language in question is always paramount, and is given
controlling weight. To determine the parties' intent, the Board normally looks to
both the contract language itself and relevant extrinsic evidence, such as a past
practice of the parties in regard to the effectuation or implementation of the
contract provision in question, or the bargaining history of the provision itself.
Mining Specialists, 314 NLRB 268, 268–269 (1994) (footnotes omitted).
A review of all the evidence of intent points in one direction only—that the 2005
Agreement was effective April 13, 2005, and its term was not made generally retroactive so that
the term of the agreement can be said to have begun January 1, 2005. Certainly, the
bargaining history and prior contracts and proposals offer no support for Respondent’s
conjecture that the 2005 Agreement’s term began January 1, 2005.
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It is clear that the Hospital’s final proposal—the blue draft submitted to the Union on
January 14—both on its cover and in the body of the document in the opening provision and
the termination clause, set forth the relevant dates for the proposed agreement as January 1,
2005, and November 1, 2007. But things changed through the course of further negotiations.
Notes from minutes made by the Hospital’s chief negotiator demonstrate that during the March
23 bargaining session the Hospital raised for consideration “whether the parties should
consider instead entering into a 3 year agreement which would expire three years after
ratification/final approval by the Union.” The notes indicate that “[t]he parties will consider this
possibility, but absent agreement to the contrary, the contract would expire as previously
agreed (i.e.: November 2, 2007).” As Respondent concedes (R. Br. at 16), “it is apparent that
[subsequently the] parties reached specific agreement.”
That agreement, contained in the document forwarded by the Hospital to the Union for
execution, contained the following relevant changes from the blue draft: the effective date of the
contract was changed from January 1 to April 13. The termination date was changed from
November 1, 2007, to April 1, 2008, at 12:01 a.m. As to the cover page, the initial date on the
cover page legend stating “Date of Agreement” remained January 1, 2005 (as in the blue draft),
but the second date was changed to “through March 31, 2005.”
It is notable that three of the four relevant dates were changed in the final agreement.
The changed termination dates (both on the cover page and in the body of the agreement in
the Termination clause) reflect consistent changes—the cover date of “through March 31”
brings us to 12:01 a.m. April 1. The effective date in the contract was also changed, to April 13.
For some reason, however, the cover date of “January 1” was not changed.
Why?
Occam’s Razor holds that the simplest of competing theories is preferred over the more
complex. By this measure, Respondent’s contention—that the January 1, 2005 cover language
kept from earlier draft proposals was the true starting date of the contract, even though the
effective date in the contract were changed through negotiation to April 13—is not compelling.
It is not just that the express language of the contract states that the “effective date” of the
agreement is April 13. In addition, if the contract’s term was intended to begin January 1, one
wonders why the contract had to specifically designate those particular provisions that were
retroactive to January 1. While Respondent points to the fact that the Agreement’s wage
provisions and certain benefit provisions were made retroactive to January 1, 2005, this
advances the General Counsel’s, not Respondent’s case. If the term of the Agreement was to
begin January 1, then all provisions of the agreement would take effect on that date and a
specific reference would be needed in order to provide for the later commencement of a
particular provision. But, in fact, it is those provisions retroactive to January 1 that are the
designated exceptions, which only underscores that the Agreement’s term generally was not
intended to be retroactive to January 1, 2005. Respondent’s argument would fit better on a
contract that was wholly retroactive, i.e. deemed effective, on January 1. But that is not this
contract.
Somewhat more plausible, and certainly simpler, is the suggestion of the General
Counsel on brief (GC Br. at 10) that the January 1 date on the cover “was simply a reflection
that certain wage and benefit provisions were made retroactive to January 1, 2005.” That is
possible—and to the extent it misled employees as to term of the contract it might serve to
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undermine the contract’s usefulness as a bar to an election petition filed after January 1, 2008
(see discussion, infra).
However, a third explanation for the January 1 date on the cover seems most plausible
under the circumstances: no one noticed it at the time because it was an inadvertent mistake
overlooked by parties who understood full well that the new contract ran from April 13 to
midnight March 31, 2008. This is, I believe, the most likely explanation. The January 1 date on
the cover page was a holdover, inadvertently carried over from all previous drafts, including the
blue draft. On March 23, these dates were specifically referenced and while there was no
agreement that day to change the dates, there was agreement to change them by the time of
ratification. Only an agreement to change the effective date and termination of the contract
explains the Hospital negotiator’s decision to affirmatively change the contract’s termination
and effective date from its prior drafts to the final language. This explains the conforming
change of one of the two dates on the cover page. Inadvertence most reasonably explains the
failure to also make the conforming change to the initial date of the cover page.5
Respondent contends that “[i]t defies credulity to conclude that the parties specifically
negotiated over the term of the Agreement, and then intentionally changed one end of the term
while inadvertently overlooking the other.” I do not agree at all. In this case inadvertence
explains what is highly implausible or inexplicable if attributed to intentional motive. What
defies credulity is that the parties negotiated and changed the termination date (on the cover
and in the agreement), and negotiated and changed the effective date of the contract, but then
purposely left January 1, on the cover to signal the initial beginning date of the agreement. I do
not believe it. I find that it was a mistake, and that the parties entered into an Agreement on
April 13, 2005, the term of which was April 13, 2005, to 12:01 a.m. April 1, 2008 at midnight.6
Board precedent is clear about the outcome in such circumstances. “[T]he parties
conduct should be governed by what they agreed to and not by what was mistakenly put in the
contract.” Cook County School Bus, Inc., 333 NLRB 647, 653 (2001) (rejecting employer’s right
to withdraw recognition based upon employee petition where error in contract provision raised

5Those familiar with collective bargaining will acknowledge that such errors are
commonplace given the mass of paperwork and time pressure involved. Indeed, review of the
2005 Agreement reveals at least one other, surely inadvertent, example of holdover language
from the 2002 Agreement. Section 3 on page 2 of the 2005 Agreement provides that dues
deductions shall be made from paychecks “effective the first pay period beginning in 2002.”
6Respondent contends that the General Counsel’s failure to call a union bargainer to
explain the January 1 date warrants an adverse inference in Respondent’s favor. I decline to
make such an adverse inference, just as I do not make one based on Respondent’s failure to
call any witnesses from its negotiating committee to explain the January 1 date. While
Respondent’s sole witness testified that no one on the Hospital negotiating committee
(including the outside counsel who was the chief negotiator) was still employed by the Hospital,
there was no suggestion that all (or any) of these people were unavailable to testify. Although
after-the-fact negotiator testimony about “what the parties intended” is fraught with opportunity
for self-serving testimony, I agree that it might have been helpful to have testimony from
negotiators regarding the development of the controverted language. However, such testimony
is not required. The record is more than adequate to make a ruling on the term of the 2005
Agreement.
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possibility, wrongly, that contract had expired).
Thus, the contract’s “term” began (Trailmobile Trailer, LLC, 343 NLRB 95 (2004)), it had
“life” (Levitz, 333 NLRB 717 (2001)), and was “accepted” (Auciello Ironworkers, Inc v. NLRB,
517 U.S. 781 (1996)) no earlier than April 2005. Given that the 2005 Agreement was in effect
only since April 2005, the conclusive presumption of majority support to which a union is
entitled during the life of a contract up to three years renders the January 2008 withdrawal of
recognition unlawful.
Accordingly, the Hospital was not privileged to withdraw recognition from the Union on
January 7, 2008. Respondent’s January 7, 2008 withdrawal of recognition from the Union, and
refusal to recognize and bargain with the Union at all times since, violates Section 8(a)(5) of the
Act. In addition, these violations are, derivatively, violations of Section 8(a)(1) of the Act, "the
rationale therefore being that an employer's refusal to bargain with the representative of his
employees necessarily discourages and otherwise impedes the employees in their effort to
bargain through their representative." 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).
2. The Hospital’s alternative contention: the irrebuttable presumption
of majority support does not apply if the term of the Agreement
cannot unambiguously be gleaned from the written contract
Respondent also contends (R. Br. at 20–23) that if the duration of the 2005 Agreement
is ambiguous—based on the inconsistency between the cover page date and the effective date
in the contract—then the complaint must be dismissed because “General Counsel cannot carry
his burden if the term of the Agreement is ambiguous.” (R. Br. at 21).
Essentially, Respondent contends that if the Agreement is ambiguous as to the term, as
a matter of law (or, more accurately, Board policy), the irrebuttable presumption of majority
support cannot bar a withdrawal of recognition that is based on employee sentiment.
For this argument, Respondent looks to the Board contract bar doctrine in
representation cases.7 Specifically, it invokes the settled policy that “in order for a contract to

7The Board’s contract bar doctrine is an administrative device adopted by the Board that
provides generally that only a written and signed labor agreement bars the processing of an
election petition. Appalachian Shale Products., Co. 121 NLRB 1160 (1958). Although
motivated by some of the same concerns, the Board’s contract bar rule is not the same thing as
nor applied identically to the irrebuttable presumption of majority support during the term of a
contract. Auciello, supra at 367 fn. 26; Young Women’s Christian Association (YWCA), 349
NLRB No. 78 (2007).
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constitute a bar, it must be sufficient on its face, without having to resort to parol evidence and
that the term of the agreement, as stated in the agreement, should be such that employees and
outside unions may determine the appropriate time for filing representation petitions.”8
Respondent contends that if the 2005 Agreement is insufficient on its face to bar an
election petition, the “same policy reasons underlie the analogous doctrine of conclusive
presumption of majority support. For the contract to stand in the way of employees’ Section 7
rights, it has to be clear—i.e., sufficient on its face.” (R. Br. at 22).
Respondent’s contention is wrong, even assuming, arguendo, that the 2005 Agreement
would not have barred the filing of a representation petition in January 2008. Contrary to
Respondent’s contentions, the facial clarity the Board requires for invocation of the contract as
a bar to an election petition—filed by employees or a rival union—is not germane to the
determination of whether the employer—a contracting party—is barred by its own agreement
from unilaterally withdrawing recognition from the union during the initial 3 years of the contract.
The irrebuttable presumption of majority support bars an employer’s withdrawal of recognition
based on lack of employee support for the union for the first three years of a contract,
regardless of whether the contract’s written provisions are clear or ambiguous. See, Cook
County School Bus, Inc., 333 NLRB 647, 653 (2001). Indeed, the irrebuttable presumption of
majority support is effective to bar withdrawal of recognition even when a contract is oral and
unexecuted. Young Women’s Christian Association (YWCA), 349 NLRB No. 78 (2007).
This difference reflects the “crucial distinction between employees challenging a union’s
representational status by asking the Board to hold an election and an employer withdrawing
recognition from a union unilaterally.” YWCA, supra, slip op. at 2. As the Board in YWCA
explained:
[t]he Board, with court approval, has repeatedly stated that the decertification
election process, with the safeguards it provides for Section 7 rights, is the
preferred method of resolving questions regarding the employees’ support for an
incumbent union. See Levitz, supra at 723, 727. Employer self-help, by
contrast, has always been judged by different standards. Id. As the judge
pointed out, the distinction that the Board makes between the effect of an
unwritten, unsigned agreement concerning, on the one hand, the processing of a
decertification election petition, and, on the other, an employer’s withdrawal of
recognition, is fully consistent with the Board’s duty to balance stability in
collective-bargaining relationships against the effectuation of employees’
representational desires. Here, as explained, the Respondent was bound by the
contract it had reached with the Union . . . When parties have reached a final
agreement on contract terms, each is appropriately held to the bargain made. It
would be profoundly destabilizing to the collective-bargaining process to allow
one party unilaterally to back out of its agreement, based on events that took
place after the fact.

8Cooper Tire & Rubber Co., 181 NLRB 509 (1970); South Mountain Healthcare, 344
NLRB 375, 375–376 (2005) (“Given the conflict among the various effective dates, we find that
the [contract] does not serve as a bar to the petition because third-parties cannot discern the
appropriate time for filing a representation petition”). See also, Coca-Cola Enterprises, Inc.,
352 NLRB No. 123, slip op. at 2 (2008) (“It is well-settled Board law that without clear effective
or expiration dates, the [agreement] cannot serve as a bar to the petition because third-parties
would be unable to determine the appropriate time for filing a petition”).
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YWCA, 349 NLRB No. 78, slip op at 2 (footnote omitted).
Indeed, holding the parties to the “bargain made” is not just settled Board precedent but
a statutory command expressed in Section 8(d)’s definition of the duty to collectively bargain.
29 U.S.C. § 158(d) (when a collective-bargaining agreement is in effect “the duty to bargain
collectively shall also mean that no party to such contract shall [unilaterally] terminate or modify
such contract”). With its holding in Shaw’s Supermarkets, the Board cabined the policy of
holding employers and unions to their bargain, limiting it to three years in the face of an actual
showing of a union’s loss of majority support. At the same time, Shaw’s Supermarkets
reaffirmed the aspect of the policy relevant here: that of holding employers and unions to their
bargain during the initial three years of a contract, notwithstanding a union’s loss of majority
support during that time. That the contract’s written form may be inadequate to bar the filing of
a decertification petition is not relevant. As explained in YWCA, “the distinction that the Board
makes between the effect of an unwritten, unsigned agreement concerning, on the one hand,
the processing of a decertification election petition, and, on the other, an employer’s withdrawal
of recognition, is fully consistent with the Board’s duty to balance stability in collective-
bargaining relationships against the effectuation of employees’ representational desires.”
In any event, the rationale for the Board’s requirement that a contract be written, signed,
and its duration unambiguous on its face in order for the contract to bar an election petition is
wholly inapplicable to the irrebuttable presumption of majority support that precludes an
employer from withdrawing recognition from a union during the life (up to three years) of the
contract. As reflected in Bob’s Big Boy Family Restaurants, 235 NLRB 1227, 1228 (1978), and
Union Fish, 156 NLRB 187 (1965), two contract bar cases highlighted by Respondent, the
rationale for refusing to find that an ambiguous contract bars petitions filed by employees or
outside unions, turns on the fact that—as nonparties to the agreement—employees and outside
unions that might want to file an election petition must rely on the written contract to determine
the appropriate time to file.9 This rationale does not apply to withdrawals of recognition during
the term of the agreement by a contracting party. The latter implicates the policies of Section
8(d). Indeed, in Tinton Falls Conva Center, 301 NLRB 937, 939 (1991), distinguishing the
policies of Section 8(d) from the policies of the representational contract bar doctrine, the Board
rejected a claim such as that advanced by Respondent here:
Section 8(d) provides that when a collective-bargaining agreement is in effect,
“the duty to bargain collectively shall also means that no party to such contract
shall [unilaterally] terminate or modify such contract.” . . .

9In Bob’s Big Boy, the Board’s holding turned on the likelihood that “employees as well
as outside unions . . . would rely on the dates contained on the cover of the contract.” Bob’s
Big Boy, supra at 1228. In Union Fish, 156 NLRB at 191–192, the Board explained that it
looks to the contract’s fixed term or duration, because it is this term on the face of
the contract to which employees and outside unions look to predict the
appropriate time for filing of a representation petition. . . . It was only this date to
which the employees and other interested parties could predict with certainty the
appropriate time for the filing of a petition, and indeed, the Employee Petitioner
did in fact rely on this date in filing the decertification petition herein.
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The Respondent's contention fails to take account of the different
purposes served by the contract-bar rule and the policies of Section 8(d). As the
Board explained in Union Fish, supra, 156 NLRB at 191, its contract-bar rule is
designed to accommodate two objectives—giving the parties to a contract a
"reasonable period" of "industrial stability free from petitions seeking to change
the bargaining relationship," while, at the same time providing "employees the
opportunity to select bargaining representatives at reasonable and predictable
intervals." The second objective cannot easily be achieved if petitioning
employees must go beyond the face of a collective-bargaining agreement to
determine whether it is in effect and for what period. Ibid. The policy of Section
8(d), made clear by its express terms, is simply to require parties to abide by
collective-bargaining agreements to which they have mutually agreed. This
policy would be disserved if a party could clearly agree to a contract and then
escape abiding by its commitment on the ground that the evidence of its
agreement consisted, in part, of parol evidence.
Spectrum cannot escape abiding by its commitment to the contract it entered into on
grounds that the evidence of its agreement consists in part of parol evidence. As one of two
parties negotiating the contract, and as one of two parties creating the ambiguity, Spectrum has
no grounds for relying upon a facial ambiguity to claim it misunderstood the term of this
Agreement, and therefore should be allowed to unilaterally withdraw recognition and back away
from the deal it struck with the union during the first three years of the contract.10
I would add that Respondent’s fulminations about employee free choice being thwarted
by the presumption of majority support are not so much wrong, as one sided, and unavailing.
The Board’s concern with employee free choice has already been factored into its rules
governing unilateral employer withdrawal of recognition and the rules governing employee
election petitions. For a host of reasons, the latter “with the safeguards it provides for Section 7
rights, is the preferred method of resolving questions regarding the employees’ support for an
incumbent union. Employer self-help, by contrast, has always been judged by different
standards.” YWCA, 349 NLRB No. 78, slip op. at 2. Thus, it is no surprise that employee free
choice may be expressed through election petitions filed with the Board at times when
unilateral employer withdrawal of recognition is not a permissible method of vindicating
employee free choice. The Board is concerned with employee free choice. But employee free
choice is not the only goal of the Act. Another fundamental goal of the Act is the stability of
labor relations. The Act’s primary aim of fostering industrial peace and stability is buttressed by
the balancing of these twin goals of employee free choice and the stability of labor relations.
The irrebuttable presumption of majority support enjoyed by a union for the life of a contract (up
to three years) represents the Board’s balancing of these goals of the Act. Shaw’s
Supermarkets, supra, slip op. at 3 (“policy goals of stability in labor relations and employee
freedom of choice . . . can best be satisfied and reconciled . . . by permitting the Respondent,
which was in possession of untainted evidence of the Union’s actual loss of majority support, to
withdraw recognition from the Union after the third year of a contract of longer duration”).

10Actually, Spectrum makes just such an argument. Contending (R. Br. at 22–23), that “[a]ll
parties in labor relations deserve and require clarity,” it points out that “in this case, those
responsible for determining the term of the Agreement and complying with the requirements of
the Act were not at the bargaining table.” Spectrum’s effort to present itself as a third-party to
its own agreement is not compelling. Spectrum, not its former agents, is the contracting party
and bound by the 2005 Agreement.
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Thus, application of the irrebuttable presumption of majority support to bar employer
withdrawal of recognition is not limited by doctrines that might call into question whether the
2005 Agreement could constitute a bar to a representation petition. The identification of an
ambiguity in the written contract’s beginning date does not mean that the employer is free to
unilaterally withdraw recognition during the first three years of the contract.11
b. Repudiation of the 2005 Agreement
It is not seriously disputed that beginning January 8, 2008, Respondent announced and
implemented a repudiation of the 2005 Agreement. For instance, on January 8, the day after
the withdrawal of recognition, the Hospital announced to employees that “[t]he current UAW
contract will no longer be in effect.” Immediately after the withdrawal of recognition, the
Hospital stopped deducting dues from employee paychecks, and announced that instead of the
utilizing the collectively-bargained grievance procedure, “[m]oving forward, you will now be
covered by the KCC Fair Treatment Policy, which gives you the right to appeal disciplinary
action.” Subsequently, the Hospital denied a grievance filed under the 2005 Agreement, taking
the position that the dispute would be handled under its nonbargained fair treatment policy.
This represents a basic repudiation of the collective-bargaining relationship and
constitutes a repudiation of the 2005 Agreement under Board precedent. Oak Cliff-Golman
Baking Co., 207 NLRB 1063, 1064 (1973), enfd. mem. 505 F.2d 1302 (5th Cir. 1974). Such
conduct violates Section 8(a)(5) and, derivatively, Section 8(a)(1).
c. Unilateral changes in terms and conditions of employment

11I note that it is far from clear that the 2005 Agreement would not stand as a bar to the
filing of an employee representation petition with the Board. Although it is true that, under the
Board’s contract bar rules, the existence of the contract, and its term, must clearly be
discernible from the four corners of the contract, inadvertent errors do not serve to undermine
the contract bar. See, The Youngstown Osteopathic Hospital Ass’n, 216 NLRB 766 (1975) (it is
clear when the current contract is considered in the context of bargaining history that the final
agreement is for a fixed term of 3 years, notwithstanding the final booklet prepared by employer
stated that the contract continued for 8-1/2 years); Consolidated Brick Co., 127 NLRB 914
(1960) (“[parties’] failure to delete the March 31, 1959, termination date set forth in the 1957
contract, in our opinion, was an inadvertence which did not serve to convert the new agreement
into one of indefinite duration, as urged by the Petitioner”). To the extent the Agreement’s
cover page date of January 1, 2005, is considered an inadvertent error, and I have found that it
was—the effective/termination dates in the contract clearly provide the term of the Agreement
and a contract bar would be effective. However, I need not resolve the question of whether the
2005 Agreement would have barred a representation petition. Regardless of the answer to that
question, the Hospital’s withdrawal of recognition was unlawful because—notwithstanding any
ambiguity on the face of the 2005 Agreement—the withdrawal, in fact, occurred during the first
three years of the contract’s term, a period in which the Union enjoyed an irrebuttable
presumption of majority support.
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1. 8(a)(5) violations
In accordance with its view that the Union no longer needed to be recognized as the
employees’ bargaining representative, and that the 2005 Agreement no longer needed to be
followed, subsequent to the repudiation and withdrawal of recognition the Hospital announced
and implemented a series of unilateral changes in terms and conditions of employment. These
changes, involving changes to wage rates, the wage structure, and changes to the eligibility
waiting period for short term disability benefits, were all subjects admitted by Respondent to be
mandatory subjects of bargaining, admittedly implemented without bargaining with the Union
and without the Union’s consent. These unilateral changes occurred during the term of the
2005 Agreement, and, not surprisingly, are subjects expressly covered by the 2005 Agreement.
The changes in wages, pay structure, and eligibility for disability benefits are in conflict with and
derogation of express terms set forth in the 2005 Agreement. Certainly, Respondent, offers no
contractual defense for the unilateral changes. Accordingly, the Hospital’s unilateral changes
are straightforward violations of duties prescribed by Section 8(d) of the Act, which requires
that, absent mutual consent, “where there is in effect a collective-bargaining contract . . . no
party to such contract shall terminate or modify such contract.” Section 8(d) defines the 8(a)(5)
duty to bargain, and therefore a violation of 8(d) constitutes an unfair labor practice under
Section 8(a)(5), and, derivatively, under Section 8(a)(1).
2. 8(a)(3) violations
The General Counsel alleges that the unilateral changes implemented by Respondent in
March 2008 were motivated by the employees’ union and concerted activities and intended to
discourage the same. The complaint maintains that these changes constituted antiunion
discrimination violative of Section 8(a)(3) of the Act.
It is difficulty to miss the alacrity and enthusiasm with which Respondent moved after
withdrawing recognition to solidify the antiunion majority in the bargaining unit. However,
having found that the unilateral changes were violative of Section 8(a)(5), I find it unnecessary
to pass on whether this conduct also violated Section 8(a)(3) because this additional finding
would not materially affect the remedy. Goya Foods of Florida, 350 NLRB No. 74, slip op 1. fn.
3 (2007).
d. Independent 8(a)(1) violations
The General Counsel alleges that the Hospital’s post-withdrawal-of-recognition
communications with employees regarding its withdrawal of recognition, its current and
anticipated changes in terms and conditions of employment, and its repudiation of the 2005
Agreement, constituted independent violations of Section 8(a)(1) of the Act. I agree.
The day after withdrawing recognition Spectrum wrote to each bargaining unit
employee, referring to them as “Former UAW Staff” and explaining the new nonunion situation.
Spectrum held meetings for all employees beginning January 8, where, in addition to explaining
the withdrawal of recognition it stated that wage and benefit changes were in the offing. It
advertised “Town Hall Meetings” at which “Former UAW Staff” could “hear about the exciting
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changes that will affect you!” At these meetings Respondent announced significant unilateral
wage and benefit improvements, and raised the possibility of future wage adjustments in
October 2008. On March 19, Respondent mailed a letter to “All Former UAW Staff” reviewing
the recent pay raises and reminding employees “that all [Spectrum] non-union staff normally
receives a pay increase in October,” and promising to “also move you to the October pay cycle.
. . . As such, you may expect another compensation adjustment in October.”
The gist of this extensive campaign was to publicize and demonstrate to employees the
new nonunion status of the facility. As the Board explained in Windsor Convalescent Center of
North Long Beach, 351 NLRB No. 44, slip op. at 13–14 (2007), a case involving a successor
employer that unlawfully refused to recognize the union: “to tell employees that there was no
union when, in fact, there was, undermined the Union’s representative role” and, therefore,
constituted an independent violation of Section 8(a)(1). The analysis is unchanged even if we
assume that Spectrum believed it was acting legally when it announced and implemented the
facility’s nonunion status. Windsor Convalescent Center, supra.
In this case, the 8(a)(1) violation includes the announcement of anticipated further wage
increases in October. The General Counsel alleges that the promise of a future wage increase
was implicitly premised on employees being and remaining nonunion. However, the tie to
nonunion status was explicit. The wage increase was explicitly linked to the “Former UAW
Staff” being moved to the “non-union staff” pay cycle. This also violates Section 8(a)(1).
CONCLUSIONS OF LAW
1. Respondent Spectrum Health-Kent Community Campus is an employer within the
meaning of Section 2(2), (6), and (7) of the Act.
2. Charging Parties District Lodge 34, International Union, United Automobile,
Aerospace and Agricultural Implement Workers of America, International
Association of Machinists and Aerospace Workers, AFL–CIO, and its Local 2600
(collectively Union) are labor organizations within the meaning of Section 2(5) of the
Act.
3. At all times since about October 1999 and continuing through January 7, 2008,
when Respondent unlawfully withdrew recognition from the Union, the Union has
been the designated exclusive collective-bargaining representative of the following
bargaining unit of Respondent’s employees:
All full-time and regular part-time employees occupying the classifications of
Activity Aide, Administrative Services Tech, Assessment Counselor, BS & MSW
Social Worker, Carpenter, Cashier, CNA (Certified Nurses Aide), CNA-
Restorative, COTA (Certified Occupational Therapy Assistant), Cook, CSR
Technician, Customer Service Representative, Environmental Services Tech I,
Environmental Services Tech II, Food Service Team Leader, Food Service
Worker, Laundry/Linen Tech, Licensed Practical Nurse, LPN-Restorative,
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Maintenance Repair Worker, Medical Secretary, Nursing Tech, Occupational
Therapist, Primary Counselor, Receptionist, Recreational Technician,
Recreational Therapist, Restorative Technician, Shipping/Inventory Worker,
Support Counselor, and Unit Support Assistant employed by Respondent at its
Kent Community Campus facility; but excluding all executive, supervisory,
confidential, professional, irregular, seasonal, and temporary employees,
guards, student interns, all employees classified as Registered Nurses, and all
other employees.

4. Respondent and the Union entered into a collective-bargaining agreement effective
by its terms April 13, 2005, and terminating no earlier than 12:01 a.m. April 1, 2008.
5. Respondent violated Section 8(a)(1) and (5) by withdrawing recognition from the
Union as the collective bargaining representative of the bargaining unit of
employees described above, as of January 7, 2008.
6. Respondent violated Section 8(a)(1) and (5) of the Act by refusing to adhere to and
repudiating its collective-bargaining agreement with the Union, including the
grievance procedure and the dues-checkoff provisions of the collective-bargaining
agreement, as of January 8, 2008.
7. Respondent violated Section 8(a)(1) and (5) and 8(d) of the Act, by implementing
unilateral changes in terms and conditions of employment covered by the parties’
2005 Agreement during the term of the agreement without the Union’s consent,
including changes to wage rates, the wage structure, and changes to the eligibility
waiting period for short term disability benefits.
8. Respondent violated Section 8(a)(1) of the Act by informing employees that the
facility was nonunion and by promising employees that it will increase wages in the
future if they remain nonunion employees.
9. 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 Respondent has engaged in certain unfair labor practices, I find that it
must be ordered to cease and desist therefrom and to take certain affirmative action designed
to effectuate the policies of the Act. Respondent must recognize the Union as the bargaining
representative of the bargaining unit of employees described above. Respondent must, upon
request of the Union, adhere to the 2005 Agreement, restoring and giving effect to its terms
retroactive to April 13, 2005, and continuing those terms and conditions in effect unless and
until changed through collective bargaining with the Union. If no such request is made by the
Union, Respondent must bargain upon request with the Union as the exclusive collective-
bargaining representative of employees in the appropriate bargaining unit and embody any
understanding reached in a signed agreement. Respondent must, upon request of the Union,
rescind the unilateral change in terms and conditions of employment implemented after
repudiation of the 2005 Agreement.
Respondent shall make whole its employees for losses in earnings and other benefits
which they may have suffered as a result of Respondent's repudiation of and refusal to adhere
to the collective-bargaining agreement, and its unlawful unilateral changes, with such losses to
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be calculated in the manner set forth in Ogle Protection Service, 183 NLRB 682 (1970), enfd.
444 F.2d 502 (6th Cir. 1971). Interest on all such sums shall be computed as prescribed in
accordance with New Horizons for the Retarded, 283 NLRB 1173 (1987).
Respondent shall reimburse the Union, with interest, for any dues it was required to
withhold and transmit under the collective-bargaining agreement, such sums calculated in the
manner set forth in Ogle Protection Service, supra. Interest on all such sums shall be
computed as prescribed in accordance with New Horizons for the Retarded, supra.
Respondent shall post an appropriate informational notice, as described in the attached
appendix. This notice shall be posted in Respondent’s facility or wherever the notices to
employees are regularly posted for 60 days without anything covering it up or defacing its
contents. When the notice is issued to Respondent, it shall sign it or otherwise notify Region 7
of the Board what action it will take with respect to this decision. In the event that, during the
pendency of these proceedings, Respondent has gone out of business or closed the facility
involved in these proceedings, Respondent shall duplicate and mail, at its own expense, a copy
of the notice to all current employees and former employees employed by Respondent at any
time since January 7, 2008.
Respondent shall, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the
Board or its agents, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay due under the terms of this
Order.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended12
ORDER
Respondent Spectrum Health – Kent Community Campus, Grand Rapids, Michigan, its
officers, agents, successors, and assigns, shall
1. Cease and desist from:
a. Failing and refusing to adhere to the collective-bargaining agreement reached
with the Union and effective by its terms April 13, 2005.
b. Failing and refusing to recognize and bargain with the Union as the exclusive
bargaining representative for the following bargaining unit of its employees:
All full-time and regular part-time employees occupying the classifications of
Activity Aide, Administrative Services Tech, Assessment Counselor, BS & MSW
Social Worker, Carpenter, Cashier, CNA (Certified Nurses Aide), CNA-
Restorative, COTA (Certified Occupational Therapy Assistant), Cook, CSR

12If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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Technician, Customer Service Representative, Environmental Services Tech I,
Environmental Services Tech II, Food Service Team Leader, Food Service
Worker, Laundry/Linen Tech, Licensed Practical Nurse, LPN-Restorative,
Maintenance Repair Worker, Medical Secretary, Nursing Tech, Occupational
Therapist, Primary Counselor, Receptionist, Recreational Technician,
Recreational Therapist, Restorative Technician, Shipping/Inventory Worker,
Support Counselor, and Unit Support Assistant employed by Respondent at its
Kent Community Campus facility; but excluding all executive, supervisory,
confidential, professional, irregular, seasonal, and temporary employees,
guards, student interns, all employees classified as Registered Nurses, and all
other employees.
c. Failing and refusing to bargain with the Union as the representative of its
employees in an appropriate bargaining unit by making unilateral changes in
their terms and conditions of employment without the consent of the Union
during the term of a collective-bargaining agreement.
d. Informing employees that the facility was nonunion and that it will increase
wages in the future as long as they remain nonunion employees.
e. In any like or related manner interfering with, restraining or coercing employees
in the exercise of rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action which is necessary to effectuate the
purposes of the Act:
a. Recognize the Union as the exclusive collective-bargaining representative of the
bargaining unit employees described above.
b. Upon request of the Union, adhere to the collective-bargaining agreement reached
with the Union, restoring and giving effect to its terms retroactive to April 13, 2005,
or as otherwise required by the terms of the collective-bargaining agreement, and
continuing those terms and conditions in effect unless and until changed through
collective bargaining with the Union. If no such request is made by the Union,
bargain upon request with the Union as the exclusive collective-bargaining
representative of employees in the bargaining unit described above and embody
any understanding reached in a signed agreement.
c. Upon request of the Union, rescind the unilateral changes to unit employees’ wages,
pay structure, and disability eligibility waiting period.
d. In the absence of a collective-bargaining agreement, 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 following above-described
bargaining unit.
e. Make all affected employees whole, with interest, in the manner set forth in the
remedy section of this Decision and Order, for any loss of earnings and other
benefits suffered as a result of Respondent’s repudiation of and refusal to adhere to
JD–46–08
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the collective-bargaining agreement, and its unilateral changes after repudiation of
the collective-bargaining agreement.
f. Reimburse the Union, with interest, in the manner set forth in the remedy section of
this Decision and Order, for any dues it was required to withhold and transmit under
the collective-bargaining agreement.
g. Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, make available at a reasonable place
designated by the Board or its agents for examination and copying, all payroll
records, social security payment records, timecards, personnel records and reports,
and all other records, including an electronic copy of the records if stored in
electronic form, necessary to analyze the amount of backpay due under the terms of
this Order.
h. Within 14 days after service by the Region, post at its facility in Grand Rapids,
Michigan, copies of the attached notice marked “Appendix.”13 Copies of the notice,
on forms provided by the Regional Director for Region 7, after being signed by the
Respondent’s authorized representative, shall be posted by Respondent and
maintained for 60 consecutive days in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps shall be
taken by Respondent to ensure that the notices are not altered, defaced, or covered
by any other material. In the event that, during the pendency of these proceedings,
Respondent has gone out of business or closed the facility involved in these
proceedings, Respondent shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees employed by Respondent at
that facility at any time since January 7, 2008.
i. Within 21 days after service by the Region, file with the Regional Director of Region
7 a sworn certification of a responsible official on a form provided by the Region
attesting to the steps that Respondent has taken to comply with the provisions of
this Order.
Dated, Washington, D.C., September 4, 2008
____________________
David I. Goldman
Administrative Law Judge

13If 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 National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
JD–46–08
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 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 benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT refuse to recognize and bargain with the Union as the collective-bargaining
representative of the bargaining unit employees.
WE WILL NOT repudiate or refuse to adhere to the collective-bargaining agreement entered
into with the Union on April 13, 2005.
WE WILL NOT make unilateral changes to employees’ terms and conditions of employment
during the term of a collective-bargaining agreement without the consent of the Union.
WE WILL NOT inform employees that this facility is nonunion and we WILL NOT promise
employees that we will increase wages in the future as long as they remain nonunion
employees.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed them by Federal law.
WE WILL, upon request by the Union, adhere to the collective-bargaining agreement effective
April 13, 2005, giving effect to its terms retroactive to April 13, 2005, and continuing those
terms and conditions in effect unless and until changed through collective bargaining with the
Union. If no such request is made by the Union, we will, upon request, bargain with the Union
and embody any understanding reached in a signed agreement.
WE WILL, upon request of the Union, rescind any unilateral changes to employees’ terms and
conditions made without consent of the Union during the term of the collective-bargaining
agreement when such terms and conditions were subjects covered by collective-bargaining
agreement.
WE WILL, recognize the Union as the collective-bargaining representative of the bargaining
unit employees.
WE WILL make all affected employees whole, with interest, for any loss of earnings and other
benefits suffered as a result of our repudiation of and refusal to adhere to the collective-
bargaining agreement reached with the Union April 13, 2005.
JD–46–08
WE WILL reimburse the Union, with interest, for any dues under the collective-bargaining
agreement we were required but failed to withhold and transmit.
Spectrum Health – Kent Community Campus
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National
Labor Relations Act. It conducts secret-ballot elections to determine whether employees want union representation
and it investigates and remedies unfair labor practices by employers and unions. To find out more about your rights
under the Act and how to file a charge or election petition, you may speak confidentially to any agent with the
Board’s Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
477 Michigan Avenue, Federal Building, Room 300
Detroit, Michigan 48226-2569
Hours: 8:15 a.m. to 4:45 p.m.
313-226-3200
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 313-226-3244.