St. Barnabas Medical Center

National Labor Relations Board - Board Decisions

Dec 16, 2004

343 N.L.R.B. 1125 (N.L.R.B. 2004)

ST. BARNABAS MEDICAL CENTER
343 NLRB No. 119
1125
St. Barnabas Medical Center and New Jersey Nurses
Union, affiliated with the Communications
Workers of America, AFL–CIO as Local 1091.
Case 22–CA–23092
December 16, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
On September 10, 2002, Administrative Law Judge
Jesse Kleiman issued the attached decision. The Re-
spondent filed exceptions and a supporting brief. The
General Counsel filed an answering brief.1
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,2 and conclusions
only to the extent consistent with this Decision and Or-
der.
The judge found that the Respondent violated Section
8(a)(5) and (1) of the Act by failing to recognize the Un-
ion as the bargaining representative of certain classifica-
tions of registered nurses (RNs) and by failing to apply
the terms of the collective-bargaining agreement to them
“within the meaning of Section 8(d).” The Respondent
contends that the complaint is time barred under Section
10(b) of the Act. We find that the Respondent has raised
a valid affirmative defense by showing that the Union
had clear and unequivocal notice, outside the 6-month
limitations period, that the Respondent repudiated the
contract by refusing to apply it to employees in the dis-
puted classifications. Accordingly, we shall reverse the
judge’s decision and dismiss the complaint without
reaching the merits of the unfair labor practice allega-
tions.
I. FACTS
The Respondent, St. Barnabas Medical Center, oper-
ates a large hospital in Livingston, New Jersey, contain-
ing approximately 600 beds. In 1991, the Union was

1 No exceptions were filed to the judge’s dismissal of the complaint
allegation that the Respondent unlawfully excluded patient care coordi-
nator registered nurses (PCC RNs) and an advanced practice nurse
manager from the collective-bargaining unit. The judge found both the
PCC RNs and the advanced practice nurse manager to be supervisors
under Sec. 2(11) of the Act.
2 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.
certified as the exclusive bargaining representative of the
following unit of employees:
All full-time and regular part-time registered nurses and
graduate nurses, including charge nurses and IV thera-
pists, employed by the Employer at its Livingston, New
Jersey facility, but excluding all office clerical employ-
ees, graduate practical nurses and licensed practical
nurses, infection control employees, utilization review
employees, home health care coordinators, in-service
instructors, nursing instructors, computer coordinators,
nutrition specialists, anesthesiology coordinators, other
professional and nonprofessional employees, other
technical employees, service and maintenance employ-
ees, engineers, managerial employees, nursing coordi-
nators, temporary employees, guards and supervisors,
including head nurses and radiology nurse specialists,
as defined in the Act, and all other employees.
Thus, by its terms, the unit included some nonsupervisory
RNs and excluded others.
Since 1991, the parties have negotiated and executed
four successive collective-bargaining agreements (1991–
1993, 1993–1996, 1996–1999, and 1999–2002) covering
that same unit. Each of these agreements contains the
same recognition language.
In or about 1989, the Respondent created a new patient
care coordinator (PCC) position. In the mid-990s, fric-
tion developed between the parties when the Union al-
leged that one or more of the PCCs was performing bar-
gaining unit work. In a February 1995 memo from Un-
ion Executive Director Sondra Clark to the Respondent’s
human resources director, Martin Marino, the Union con-
tended that this was in violation of the collective-
bargaining agreement, although the Union never filed a
grievance on that basis. Instead, the Union sought a de-
termination from the Respondent whether the individual
PCC in question was in or out of the unit. Additionally,
the Union requested the identity of all PCCs and a copy
of the PCC job description.
By letter in April 1995, the Respondent refused the
Union’s information request on the grounds that the em-
ployee in question was not part of the unit and therefore
the Union was not entitled to the other information
sought. Upon receiving this response, the Union filed an
unfair labor practice charge based on the Respondent’s
refusal to provide the requested information.3
Meanwhile, between March and July 1997, the Union
learned that the Respondent was not applying the con-
tract to RNs in the radiology, employee health, and car-

3 This charge was ultimately resolved by a non-Board settlement in
which the Respondent provided the requested information to the Union.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1126
diac catheterization lab departments.4 By memo dated
July 8, 1997, and received by the Respondent on August
12, 1997, the Union made a formal demand for recogni-
tion of two PCCs, as well as for the radiology RNs, em-
ployee health unit RNs, and cardiac catheterization RNs.
In response to the Union’s demand, the Respondent
agreed to meet with the Union in October 1997 and again
in January 1998. At the October 1997 meeting, Marino
reiterated the Respondent’s position to Executive Direc-
tor Clark and Union Co-chair Karen May that none of the
disputed classifications belongs in the bargaining unit.
However, Marino proposed that a “package deal” could
be worked out, whereby the Respondent would include
all but one radiology RN in the unit, and exclude the RNs
in the employee health and cardiac catheterization labo-
ratory departments. Marino told the Union that this pro-
posal was conditioned on the Union’s agreement to re-
solve all of the disputed classifications at once, and that
if the parties could not agree on all of the outstanding
classifications, the Union would have to pursue the mat-
ter through the Board. The Union rejected Marino’s pro-
posal.
In the subsequent January 1998 meeting, Marino again
advanced the Respondent’s position that the disputed
classifications of RNs did not belong in the bargaining
unit. However, Marino proposed that if the Union were
to withdraw a pending Board charge alleging that the
Respondent had unlawfully failed to provide requested
information concerning the PCC positions, the Respon-
dent would agree to include both radiology and catheteri-
zation lab RNs in the unit. The Union again rejected
Marino’s proposal, and at no time filed an unfair labor
practice charge with the Board concerning Marino’s con-
duct at either the October or January meetings.
In February 1998, the Union learned that the Respon-
dent was recruiting RNs to the position of case manager.
Later that year, in June 1998, the Union also learned that
there were nonsupervisory RNs working in the Pediatric
Oncology Outpatient Clinic, as well a single RN working
in the Pediatric Clinic.
The parties met again on June 2, 1998. At this meet-
ing, the Union communicated to Marino its intention to
add three classifications—the case manager, pediatric
oncology, and pediatric clinic positions—to the list it had
supplied to Marino in its initial demand for recognition.

4 The judge found that it was “[i]n about August 1997,” that the Un-
ion first learned of the nonsupervisory cardiac catheterization RNs
working at the Hospital. However, it is clear from the testimony of
Union Executive Director Sondra Clark that it was July 1997 that she
first learned that there was a nonsupervisory RN working in the lab.
This testimony is consistent with the undisputed evidence that the Un-
ion submitted its formal demand for recognition of the cardiac cathe-
terization RNs (along with three other classifications) in July 1997.
In response, Marino asked the Union to submit a “fresh
list” of RN classifications to him. The Union submitted
a list the following day, June 3, 1998, seeking recogni-
tion of a total of 14 classifications.5 Between July and
October 1998, Clark left three telephone messages for
Marino seeking a response to the June 3 memo. The
Respondent never responded to these communications.
On December 21, 1998—17 months after the Union’s
initial July 1997 demand—the Union filed a charge al-
leging the Respondent’s refusal to bargain with the Un-
ion regarding employees in 14 classifications. The Un-
ion later withdrew its demand for recognition as to sev-
eral of these classifications and limited its demand to the
following RN positions at issue in the instant case: (1)
employee health; (2) cardiac catheterization laboratory;
(3) case manager; (4) radiology; (5) pediatric oncology
outpatient clinic; and (6) pediatric clinic.
II. THE JUDGE’S DECISION
The judge rejected the Respondent’s 10(b) defense that
the complaint is time barred based on his finding that the
Union never received clear and unequivocal notice, at
any time prior to filing its charge on December 21, 1998,
that the Respondent rejected the Union’s demand for
recognition of the disputed classifications of RNs and
that the Respondent apply the contract to them. For the
reasons discussed below, we disagree with the judge on
this issue. We instead find that the Respondent has satis-
fied its burden of showing that the Union had clear and
unequivocal notice of a completed violation of the Act at
least as early as July 1997—17 months prior to the filing
of the charge. We further find, under the circumstances
of this case, that the Respondent’s conduct outside the
10(b) period amounted to a repudiation of the contract,
rather than a breach of the contract terms, and that the
10(b) period thus began to run at the moment the Union
was on notice of the Respondent’s repudiation. Accord-
ingly, we conclude that Section 10(b) is a complete bar
to recovery for the Union in this case.
III. DISCUSSION
Section 10(b) provides that “no complaint shall be
based upon any unfair labor practice occurring more than
six months prior to the filing of the charge with the
Board.” 29 U.S.C. § 160(b). However, this limitations
period does not begin to run until the charging party has
“clear and unequivocal notice,” either actual or construc-
tive, of a violation of the Act. Leach Corp., 312 NLRB
990, 991 (1993), enfd. 54 F.3d 802 (D.C. Cir. 1995). A
party will be charged with constructive knowledge of an

5 The Respondent acknowledges receipt of the list and that it did not
respond to it.
ST. BARNABAS MEDICAL CENTER 1127
unfair labor practice where it could have discovered the
alleged misconduct through the exercise of reasonable
diligence. Moeller Bros. Body Shop, 306 NLRB 191,
193 (1992) (“While a union is not required to police its
contracts aggressively in order to meet the reasonable
diligence standard, it cannot with impunity ignore an
employer or a unit . . . and then rely on its ignorance of
events occurring at the shop to argue that it was not on
notice of an employer’s unilateral changes.”). See also
John Morrell & Co., 304 NLRB 896, 899 (1991) (10(b)
period begins to run when “aggrieved party knows or
should know that his statutory rights have been vio-
lated”).
The burden of showing such notice is on the party rais-
ing the affirmative defense of Section 10(b). Chinese
American Planning Council, 307 NLRB 410 (1992).
When the alleged unfair labor practice may be charac-
terized as a contract repudiation, the unfair labor practice
occurs at the moment of the repudiation, and the 10(b)
period begins to run at the moment the union has clear
and unequivocal notice of that act. “Once a party has
notice of a clear and unequivocal contract repudiation
. . . a dispute is clearly drawn. Indeed, it is at the mo-
ment of that repudiation that the unfair labor practice—
the refusal to bargain—fundamentally occurs.” A&L
Underground, 302 NLRB 467, 469 (1991). Under these
circumstances, if the repudiation occurred outside the
10(b) period, all subsequent failures of the respondent to
honor the terms of the agreement are deemed conse-
quences of the initial repudiation for which the union
may not recover. Id.
By contrast, cases not barred by Section 10(b) “include
cases in which a respondent has not given clear notice of
a total contract repudiation outside the 10(b) period, but
has simply breached provisions of the collective-
bargaining agreement to a degree that rises to the level of
an unlawful unilateral change in contractual terms and
conditions of employment. . . . That the respondent
might, for example, have failed to make some contractu-
ally required payments in the past is immaterial, because
those occurring within the limitations period form self-
contained unfair labor practices and bear no real relation
to the past breaches.” Id. See also Farmingdale Iron
Works, 249 NLRB 98, 99 (1980), enfd. 661 F.2d 910 (2d
Cir. 1981). In these circumstances, while statutory relief
will not reach back to conduct that occurred before the
10(b) cutoff date, the fact that the initial violation of the
Act may have occurred before that date will not bar an
unfair labor practice charge predicated on an employer’s
continuing failure, within the 10(b) period, to abide by
the contract’s terms. Thus, the charging party may re-
cover for those violations occurring within the 6 months
preceding the charge. Id.
For the reasons stated below, we find that the Union
had clear and unequivocal notice outside the 10(b) period
that the Respondent refused to apply the contract to em-
ployees in the disputed classifications. We further find
that this refusal falls within the repudiation line of cases
and that the complaint is time barred.
A. The Union had Clear and Unequivocal Notice of
the Alleged Unfair Labor Practice
Outside the 10(b) Period
Applying the above principles to the instant case, we
first take issue with the judge’s analysis concerning the
Union’s notice of the conduct alleged to be unlawful.
Specifically, we disagree with the judge’s reasoning that
the 10(b) period did not begin to run until after the Union
realized that it was not going to receive a response from
the Respondent to the Union’s last demand for recogni-
tion of the disputed RNs in June 1998. Instead, Board
precedent holds that the 10(b) period begins to run at the
time the Union first has “knowledge of the facts neces-
sary to support a ripe unfair labor practice.” Leach, su-
pra.6 Here, it is undisputed that the Union was acutely
aware, long before 6 months prior to the filing of the
charge, of each element of the alleged unfair labor prac-
tice—the existence of employees in classifications alleg-
edly covered by the contract and the Respondent’s re-
fusal to recognize the Union as the bargaining represen-
tative of these employees or to apply the collective-
bargaining agreement to them.
The Union knew from at least July 1997, the date of its
formal demand for inclusion of the first four disputed
classifications (PCCs, radiology RNs, employee health
unit RNs, and cardiac catheterization RNs), that the Re-
spondent was not applying the collective-bargaining
agreement to these employees or recognizing the Union
as their representative. Notwithstanding the Union’s
actual knowledge7 of the Respondent’s alleged unlawful
conduct, the Union made an informed and conscious
decision not to file an unfair labor practice charge at that
time. The Union did not base this decision on any repre-
sentations or promises by the Respondent that it would
remedy the Union’s complaint. To the contrary, the Re-

6 As noted above, a party may also be charged with constructive
knowledge of an unfair labor practice when the party has failed to
exercise due diligence. In this case, we have found that the Union had
actual knowledge of the unfair labor practices more than 6 months
before it filed a charge.
7 Because we find that the Union had actual knowledge of the al-
leged unfair labor practices more than 6 months prior to its filing of a
charge, we need not pass on the judge’s finding that the Union lacked
constructive knowledge of the Respondent’s alleged unlawful conduct.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1128
spondent consistently maintained that it had no obliga-
tion to apply the contract to the disputed RNs. Thus, the
Union made its decision not to act at its own peril.
With respect to the remaining disputed classifications
(case managers, pediatric oncology, and pediatric clinic
RNs), the Respondent’s conduct in negotiations with the
Union from October 1997 through June 1998 reinforced
the Respondent’s position that it did not consider the
disputed classifications to be in the unit. In his succes-
sive meetings with the Union during this time, Human
Resources Director Marino repeatedly made the Union
aware that the Respondent was not going to favorably
resolve the matter of extending the collective-bargaining
agreement to all of the classifications that were the sub-
ject of the Union’s initial July 1997 demand,8 nor the
additional classifications for which the Union sought
information and coverage in discussions with the Re-
spondent through June 2, 1998. At no time during these
discussions did Marino make any commitment to the
Union that the Respondent would remedy the problem;
nor did Marino do anything to mislead the Union or con-
ceal from the Union its position, steadfastly held, that the
disputed RNs were not, and should not, be covered by
the contract. Accordingly, at least by June 2, 1998, the
Union had clear and unequivocal notice that the Respon-
dent was refusing to apply the contract to the disputed
RNs. Thus, the complaint is barred by Section 10(b).
Our colleague reads too much into the Respondent’s
nonresponse to the Union’s letter of June 3. That letter
simply listed the classifications that the Union claimed to
be in the unit. It was clear at that time that the Respon-
dent took a contrary view. We would not infer, from the
nonresponse, that the Respondent was changing from
that clear position. Our colleague says that the fact that
the Respondent asked the Union to put in writing its ex-
panding set of demands created a “reasonable expecta-
tion on the part of the Union that the Respondent would
respond in due course.” However, the fact is that the
Union’s letter was followed up by three phone messages
(over 4 months) by the Union to the Respondent. The
Respondent did not respond to any of them.
The judge and the dissent rely on Sterling Nursing
Home, 316 NLRB 413, 416 (1995), to excuse the Un-
ion’s failure to act on its knowledge of conduct it be-
lieved to be unlawful. That reliance is misplaced, as the
facts of that case are distinguishable. In Sterling, the
respondent failed to apply the applicable collective-
bargaining agreement to some of the unit employees.
When the union learned that certain employees were

8 As the judge noted in his decision, the Respondent’s position to ex-
clude the PCCs from the unit “remained adamant” throughout.
working outside the bargaining agreement and raised the
issue of this alleged noncompliance to the respondent,
the respondent made repeated assurances to the union
that it was going to “take care of” or “straighten out” the
problem of coverage of these employees. Id. at 415.
Uncontradicted testimony also established that the re-
spondent promised that it would apply the bargaining
agreements to the disputed employees. The judge found
that the respondent did not, at any time prior to the un-
ion’s filing of the charge, demonstrate by clear and un-
equivocal notice that it had changed its position to the
union about remedying the matter. Under these circum-
stances, the judge concluded, and the Board agreed, that
“the Union had no reason to believe that a completed
violation had occurred.” Id. at 416.
Unlike the circumstances presented in Sterling, supra,
the Respondent here neither promised to remedy the dis-
pute over coverage of employees in the disputed classifi-
cations, nor promised to apply the contract to those em-
ployees. Instead, the Respondent never strayed from its
assertion that it did not have to apply the contract to the
disputed RNs, and it never did. By this conduct, the Re-
spondent gave clear and unequivocal notice to the Union
that it was not recognizing the Union as the bargaining
representative of the disputed RNs and that it was unwill-
ing to apply the contract to them. Unlike the union in
Sterling, the Union here thus had reason to believe that a
“completed violation” had occurred. Sterling, supra at
416.
The dissent asserts that the Respondent gave conflict-
ing signals to the Union that preclude a finding that the
Respondent gave clear and unequivocal notice of repu-
diation. We disagree. In July 1997, when the Union
made its first demand for recognition, the Respondent
was not recognizing the Union as the collective-
bargaining representative of the disputed RNs and was
not applying the contract to them. This same set of facts
applied in October 1997, January 1998, June 1998, and
the day the Union filed a charge in December 1998. Re-
gardless of the Respondent’s statements to the Union
concerning its “initial thinking” or a “package deal,”
these same basic facts never changed from the time the
Union learned of the Respondent’s failure to apply the
contract to the day 17 months later when the Union fi-
nally filed a charge. Everything the Union knew to file a
charge on December 21, 1998, it knew at least 6 months
beforehand.
Allowing these discussions to sub silentio toll the limi-
tations period is inconsistent with the policies underlying
Section 10(b), which is intended to “promote . . . stable
collective-bargaining relationships by precluding ex-
tended periods of uncertainty regarding the validity of
ST. BARNABAS MEDICAL CENTER 1129
the agreement and the parties’ contractual obligations.”
A&L Underground, supra at 469. To hold that there is a
tolling would discourage the acting party from discussing
with the other party a possible resolution of the issue.
That result is contrary to the Act’s purpose of fostering
settlements of disputes. Furthermore, it is common in
Federal court litigation for parties to enter into agree-
ments tolling the running of any statute of limitations “to
provide breathing room in which to conduct settlement
negotiations.” Hunter-Boykin v. George Washington
University, 132 F.3d 77, 78 (D.C. Cir. 1998). The mere
fact that settlement negotiations are ongoing is insuffi-
cient to toll the statute of limitations. Michals v. Baxter
Healthcare Corp., 289 F.3d 402, 409 (6th Cir. 2002),
cert. denied 537 U.S. 944 (2002). See also Librizzi v.
Children’s Memorial Medical Center, 134 F.3d 1302,
1307 (7th Cir. 1998) (plaintiff’s “multiple unrequited
demands do not provide additional time to start a suit”);
Melhorn v. Amrep Corp., 373 F.Supp. 1378, 1382 (M.D.
Pa. 1974) (informal settlement negotiations did not toll
statute of limitations where not in exchange for plain-
tiffs’ forbearance to sue; “plaintiffs were not wrongfully
induced to delay suit, but rather unwisely held out hope
of settlement too long”). Our conclusion that the com-
plaint is barred by Section 10(b) is consistent with this
principle as well.9
Regardless of whether we look to July 1997 (when the
Union first demanded recognition as to four classifica-
tions of employees), or to June 2, 1998 (the date of the
last meeting between the Union and the Respondent con-
cerning the Union’s demand for recognition as to the
additional classifications of RNs), our conclusion re-
mains the same: the Union had clear and unequivocal
notice of a violation well beyond the 6 months before the
Union filed the charge on December 21, 1998. Leach,
supra.
B. The Respondent’s Repudiation of the Contract Outside
the 10(b) Period is a Complete Bar to
Recovery for the Union
Having determined that the Union had clear and un-
equivocal notice of the Respondent’s refusal to apply the
contract to the disputed RNs prior to the 10(b) period, the
remaining question is whether the conduct at issue con-
stituted a completed violation or a continuing one. The
judge concluded, and the dissent agrees, that even assum-

9 Contrary to the dissent, there is no inconsistency between our find-
ing that the Union had clear and unequivocal notice of the contract
repudiation, notwithstanding the parties’ subsequent negotiations, and
our conclusion that those negotiations also did not effect a tolling of the
10(b) period. As the cases cited above make clear, the fact that settle-
ment negotiations are underway does not affect the running of a statute
of limitations.
ing the Union had clear and unequivocal notice of the
Respondent’s refusal to apply the contract outside the
10(b) period, the Respondent’s conduct constituted sepa-
rate and distinct violations of the Respondent’s bargain-
ing obligations, and the Union is thus entitled to a rem-
edy for at least the 6 months prior to the filing of the
charge under a continuing violation theory. Farmingdale
Iron Works, 249 NLRB 98, 99 (1980), enfd. 661 F.2d
910 (2d Cir. 1981). We disagree. Instead, under the
circumstances of this case, we conclude that the Respon-
dent’s conduct outside the 10(b) period amounted to a
repudiation, which is a completed violation of the Act,
and thus cannot be treated as a continuing violation.
In A&L Underground, 302 NLRB 467 (1991), the par-
ties signed an interim agreement prior to the 10(b) pe-
riod, and a dispute arose as to whether the agreement
applied to more than a single project. By letter to the
union, the respondent maintained its stance that it was
not bound by the terms of the agreement, and it ceased
complying with its terms for well over a year before the
union ultimately filed a charge. The Board found that by
this letter, the respondent “severed the bargaining rela-
tionship in one stroke, and its failure to apply the con-
tract thereafter is little more than the effect of that ac-
tion.” 302 NLRB at 469. Thus, the Board concluded
that the respondent totally repudiated the contract and
that the 10(b) period began to run when the union re-
ceived clear and unequivocal notice of that repudiation.
The Board has found that a contract repudiation need
not be an express, written repudiation but instead can be
manifested by the respondent’s conduct. In Natico, Inc.,
302 NLRB 668 (1991), for example, the Board found
that the respondent’s failure to make pension fund pay-
ments over an extended period of time was a repudiation
of its obligation to make the payments. “The failure to
make the payments month after month was itself tanta-
mount to repudiation, and the Union was put on notice of
the repudiation by the sheer length of time during which
[the respondent employer] consistently failed to make
payments.” Id. at 671. (Citation and internal quotations
omitted.) See also Park Inn Home for Adults, 293 NLRB
1082, 1082 (1989) (where respondent stopped pension
fund contributions 2 years prior to contract expiration,
union was on notice of repudiation of obligation to make
contributions).
These cases stand for the proposition that when an em-
ployer consistently fails to recognize the union or to
abide by the terms of a collective-bargaining agreement,
the union is put on notice that the employer has repudi-
ated the agreement, thus triggering the commencement of
the 10(b) period for filing a charge. We find that the
Respondent’s conduct here falls within this line of
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1130
cases.10 The Respondent’s refusal to apply any part of
the contract to any of the disputed RNs11 at any time
since the Respondent entered into a collective-bargaining
relationship with the Union in 1991 constituted a total
repudiation of the entire contract as to these employees.12
The policy concerns that informed the Board’s decision
to reject the continuing violation theory as inapplicable
to a “clear and total contract repudiation” in A&L Un-
derground apply equally here. A&L Underground, supra
at 468. First, “[i]t is hardly in the real interest of the
party desiring continued enforcement of the contract to
allow the repudiating party to ignore the agreement in-
definitely without being brought to book.” Id. Applica-
tion of the continuing violation rule under these circum-
stances fosters uncertainty and instability in the collec-
tive-bargaining relationship in the long run. Second,
application of a continuing violation rule will always
impair the process for adjudicating charges by permitting
litigation over distant events. Id.
As discussed above, it is undisputed that the Union had
actual knowledge of the Respondent’s refusal to apply
the contract by at least July 1997 with respect to the first
four classifications of disputed RNs for which it sought
recognition, and by June 2, 1998, with respect to the re-
maining disputed RNs. The Union’s failure to act on this
clear and unequivocal notice of contract repudiation pre-
cludes our tolling of the 10(b) limitations period under
A&L Underground and its progeny.
The dissent contends that the Respondent only en-
gaged in “selective repudiation” and that its actions
amounted to a material breach. We disagree. There is
nothing selective at all about the Respondent’s refusal to
apply the contract to the disputed RNs. The Union de-
manded recognition as the collective-bargaining repre-
sentative for those RNs, and the Respondent refused.
The Respondent has never applied a single provision of
the contract to any of them. Additionally, the Respon-
dent has never denied that it refused this recognition and

10 The complaint alleges that the Respondent did not recognize the
Union as the bargaining agent of the disputed classifications of RNs,
and the Respondent answered that the disputed RNs were never part of
the bargaining unit. The dissent is thus incorrect that the pleadings do
not raise a theory of repudiation.
11 As the dissent points out, the Respondent did apply the contract to
a single radiology nurse, Myrna Lao, for some time. Lao had become a
bargaining unit member while working as an RN in a different depart-
ment covered by the unit. While the Respondent inadvertently allowed
this nurse to stay within the unit when she transferred into the Radiol-
ogy department, the Respondent at all times maintained to the Union
that neither this nurse, nor any other radiology RN, belonged in the
unit.
12 Nothing in the repudiation line of cases dictates the dissent’s ap-
parent finding that a repudiation of contract can only occur when a
respondent does not apply a contract to any employees.
failed to apply the contract, despite the fact that the con-
tract arguably covers these RNs. Thus, the record amply
supports our finding that the Respondent repudiated the
contract as to these RNs.
In sum, the contract was repudiated as to the disputed
classifications. The distinction drawn by the Board is
between contract breach (a party erroneously interprets a
contract term) and contract repudiation (a party refuses to
apply the contract). The instant case involves the latter
conduct, albeit limited to certain classifications.
We also disagree with the dissent that the Respon-
dent’s correspondence and negotiations with the Union
should be viewed as conduct inconsistent with the Re-
spondent’s clear and unequivocal acts of repudiation.
See, e.g., Park Inn Home for Adults, supra (negotiations
between the parties following company’s repudiation
offered “no clear evidence that [the company] in fact
ever acknowledged a continuing obligation to [comply
with the contract]”); Natico, Inc., supra (employer’s post-
repudiation negotiations and “noncommittal remarks”
were not inconsistent with repudiation). Again, long
before the Union filed a charge, the Respondent did not
apply a single provision of the contract to the disputed
RNs and openly stated that it was not obligated to do so.
This is repudiation.
C. Conclusion
Because the unfair labor practice charge was filed on
December 21, 1998, and because the Union had clear and
unequivocal notice of a completed violation of the Act as
early as July 1997 and no later than June 2, 1998, we
conclude that the complaint is time barred under Section
10(b) of the Act. Therefore, we shall dismiss the com-
plaint.
ORDER
The complaint is dismissed.
MEMBER WALSH, dissenting.
Reversing the well-reasoned decision of the judge, the
majority concludes that the complaint is time-barred by
Section 10(b) of the Act. This conclusion is based on the
majority’s dual findings that (1) the Union had clear and
unequivocal notice, outside the 10(b) period, of the Re-
spondent’s failure to recognize the Union as the bargain-
ing representative of certain classifications of registered
nurses (RNs) and to apply the contract terms to them;
and (2) the Respondent’s conduct amounted to a full re-
pudiation of the contract, rather than a breach of its
terms. The majority’s two key factual findings are erro-
neous and, consequently, so, too, is its ultimate conclu-
sion.
The judge correctly rejected the Respondent’s 10(b)
defense because the Union did not have clear and un-
ST. BARNABAS MEDICAL CENTER 1131
equivocal notice of a violation outside the 10(b) period.
Further, the judge correctly found that even assuming the
Union had such notice, the Respondent’s conduct in fail-
ing to recognize the Union as the representative of the
disputed RNs and in failing to apply the existing contract
to them resulted in a series of separate and distinct viola-
tions for which the Union is entitled to a remedy that
encompasses the 6 months prior to the date the Union
filed its charge.
I. FACTS
The Respondent and the Union have had four succes-
sive collective-bargaining agreements since November 1,
1991, and each of these agreements contained the identi-
cal recognition language as follows:
The Employer recognizes the Union as the sole and ex-
clusive collective bargaining representative of all full-
time and regular part-time registered nurses and
graduate nurses, including charge nurses and IV thera-
pists employed by the employer at its Livingston, New
Jersey facility, but excluding all office clerical employ-
ees, graduate practical nurses and licensed practical
nurses, infection control employees, utilization review
employees, home health care coordinators, in-service
instructors, computer coordinators, nutrition specialists,
anesthesiology coordinators, other professional and
nonprofessional employees, other technical employees,
service and maintenance employees, engineers, mana-
gerial employees, nursing coordinators, temporary em-
ployees, guards and supervisors, including head nurses
and radiology nurse specialists, as defined in the Act,
and all other employees. [Emphasis added.]1
It was during the term of the parties’ 1996–1998 col-
lective-bargaining agreement that the Union filed its
charge, on December 21, 1998.
In or about 1989, the Respondent created a new “Pa-
tient Care Coordinator” (PCC) position. When the Un-
ion learned, some time in the mid-1990s, that one or
more of the PCCs were performing bargaining unit work,
it sought information from the Respondent on the posi-
tion. By letter dated August 9, 1994, Union Co-chair
Karen May requested that the Respondent provide the
Union with a PCC job description. When the Respon-
dent failed to reply, Union Executive Director Sondra
Clark followed up on the request by memo dated Febru-
ary 3, 1995. In this request to the Respondent’s human

1 According to the plain language of this Board-certified bargaining
unit, none of the disputed classifications of RNs at issue in this case—
employee health RNs, cardiac catheterization lab RNs, case manager
RNs, radiology RNs, pediatric oncology outpatient clinic RNs, or pedi-
atric clinic RNs—is named under the exclusions stipulated to by the
parties.
resources director, Martin Marino, Clark additionally
requested the names and assignments of the PCCs.
When the Respondent again failed to respond, Clark
again reiterated the Union’s request by memo dated
March 20, 1995.
It was not until April 1995—8 months after the Un-
ion’s initial request for information—that the Respondent
ultimately refused the Union’s information request.
Upon receiving this response, the Union promptly filed
an unfair labor practice charge on April 5, 1995, alleging
that the Respondent’s refusal to provide the requested
information violated Section 8(a)(5) of the Act.2
Between the months of March and July 1997, the Un-
ion learned that the Respondent was employing nonsu-
pervisory RNs in the radiology,3 employee health, and
cardiac catheterization laboratory departments. By
memo dated July 8, 1997, and received by the Respon-
dent on August 12, 1997, the Union made a formal de-
mand for recognition for the PCCs, radiology RNs, em-
ployee health unit RNs, and cardiac catheterization RNs.
The parties met in October 1997 and again in January
1998 to discuss the Union’s demand. At the October
1997 meeting, Marino presented what he termed his “ini-
tial thinking” on each of the employee categories to
Clark and May. During these discussions, Marino told
the Union that he would have to gather additional infor-
mation concerning the PCC position. He also repre-
sented to the Union that a “package deal” could be
worked out, whereby the nonsupervisory RNs in the Ra-
diology department would be included within the bar-
gaining unit. Marino conditioned this proposal on
agreement by the Union that all the disputed classifica-
tions would have to be discussed and agreed upon before
any action would be taken by the Respondent. Other-
wise, Marino told the Union, the matter would have to be
resolved by the Board. The Union rejected this proposal.
The parties again met, at Marino’s request,4 in January
1998. At this meeting, Marino reiterated the Respon-
dent’s willingness to include all nonsupervisory radiol-
ogy RNs in the unit as part of a package deal. As to the
PCCs, Marino represented to the Union that the issue of
PCC RNs taking patient assignments while not enjoying
the benefits of the contract would be “cleaned up.” Ad-
ditionally, at the end of this meeting, Marino presented a
new proposal to the Union: if it agreed to withdraw its

2 This charge was ultimately resolved by a non-Board settlement in
which the Respondent provided the requested information to the Union.
4 By letter dated December 23, 1997, Marino acknowledged to
Clark: “I agreed to look into a number of the additional issues you and
Karen [May] raised,” and suggested meeting again in January “so that
we can continue this dialogue on this matter” and to “continue our
efforts to resolve this matter internally directly between the parties.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1132
pending Board charge concerning the PCCs, the Respon-
dent would concede, in addition to the radiology RNs,
that the cardiac catheterization lab RNs were also part of
the bargaining unit. As before, Marino conditioned this
proposal on the Union’s willingness to resolve the cover-
age issues as to all of the disputed positions at once. The
Union again rejected Marino’s proposal.
In February 1998, the Union learned that the Respon-
dent was recruiting RNs to the position of case manager.
Later that year, in June 1998, the Union further learned
that there were nonsupervisory RNs working in the pedi-
atric oncology outpatient clinic, as well as a single RN
working in the pediatric clinic.
The parties met once again on June 2, 1998. At this
meeting, the Union communicated to Marino that it in-
tended to broaden its earlier demand for recognition to
include the additional classifications of case managers,
pediatric oncology RNs, and the pediatric clinic RN posi-
tion of which it had recently become aware. In response,
Marino asked the Union to submit a “fresh list” of RN
classifications for which the Union sought recognition.
By memo dated June 3, 1998, the Union submitted its list
to the Respondent, seeking recognition of a total of 14
classifications. On July 6, Clark left a telephone mes-
sage for Marino to set up a meeting to discuss the Un-
ion’s latest demand. Marino did not respond. On August
10, 1998, Clark called Marino again, and left a similar
message, but again, Marino did not respond. On October
21, Clark left a third and final message for Marino seek-
ing followup to their previous meeting, but to no avail.
On December 21, 1998—less than 3 months after the
last contact made by the Union to the Respondent in Oc-
tober 1998—the Union filed a charge alleging, inter alia,
that the Respondent’s refusal to bargain collectively and
in good faith with the Union over the disputed classifica-
tions violated Section 8(a)(5) and (1) of the Act. In as-
serting the affirmative defense of Section 10(b), the Re-
spondent did not contend that it had repudiated the con-
tract.
II. ANALYSIS
“Although Section 10(b) bars a complaint based on
unlawful conduct occurring more than 6 months before
the filing and service of the charge, the Board has consis-
tently held that the 10(b) period does not commence until
the charging party has ‘clear and unequivocal notice’ of
the violation.” Vallow Floor Coverings, Inc., 335 NLRB
20, 20 (2001). “[T]he burden of showing that the Charg-
ing Party was on clear and unequivocal notice of the vio-
lation rests on the Respondent.” A&L Underground, 302
NLRB 467, 469 (1991). Where a “delay in filing is a
consequence of conflicting signals or otherwise ambigu-
ous conduct,” a finding of clear and unequivocal notice is
unwarranted. Id.
Board precedent has long distinguished between “a
simple failure to abide by the terms of a collective-
bargaining agreement,” or “material breach violation,”
on one hand, and “an outright repudiation of the agree-
ment itself,” or “total repudiation” on the other. Vallow
Floor, supra (citing A&L Underground, supra). In the
latter situation, when an employer completely repudiates
the contract, the unfair labor practice is committed at the
moment of the repudiation, and the 10(b) period com-
mences once the union has clear and unequivocal notice
of the act of repudiation. Under these circumstances, any
subsequent refusals by an employer to honor the terms of
the collective-bargaining agreement do not constitute
unfair labor practices; rather, these acts are simply the
consequences of the respondent’s clear and unequivocal
act of repudiation. For this reason, the union must file its
charge within 6 months upon receiving notice of the re-
pudiation, or a complaint based on that conduct will be
time barred. Id.
When an employer has not rejected a collective-
bargaining agreement in its entirety, but has instead re-
fused to apply one or more of its provisions to unit em-
ployees, this scenario presents a breach of the contract’s
terms. Under these circumstances, each successive
breach of the contract terms constitutes a separate and
distinct unfair labor practice. Id. It is for this reason that
even when a union has clear and unequivocal notice out-
side the 10(b) period that the respondent is failing to ob-
serve the terms of the contract, the complaint would not
be time-barred. Instead, the 10(b) period would serve
only as a limitation on the remedy to the 6 months prior
to the filing of the unfair labor practice charge. Id;
Farmingdale Iron Works, 249 NLRB 98, 99 (1980),
enfd. 661 F.2d 910 (2d Cir. 1981).
Here, the Union did not receive clear and unequivocal
notice outside the 10(b) period that the Respondent
would not apply the contract to employees in the dis-
puted classifications, and thus, the instant unfair labor
practice charge was timely filed. Furthermore, even as-
suming the Union received such notice, the Respondent’s
conduct amounted to a breach of contract, not a repudia-
tion of contract. Consequently, the complaint is not time
barred, and a violation of Section 8(a)(5) may be found
based on the Respondent’s failure to apply the contract
during the 6 months prior to the filing of the charge.
A. The Union did not have Clear and Unequivocal
Notice of the Respondent’s Rejection
of the Union’s Demand
The judge correctly found that at the time the Union
filed its charge, the Respondent had failed to unequivo-
ST. BARNABAS MEDICAL CENTER 1133
cally reject the Union’s demand for recognition of the
disputed classifications of RNs, the terms of which the
Union first presented to the Respondent in July 1997, and
over which the Union and Respondent continued to ne-
gotiate through June 3, 1998. A brief review of the un-
disputed facts shows support for this finding.
Fundamentally, the Respondent does not dispute that
the parties had been engaging in a series of settlement
negotiations5 since July 1997, when the Union made its
first formal demand for recognition. Nor does the Re-
spondent deny that it sought a “fresh list” of classifica-
tions in the final June 2 meeting, which the Union pro-
vided the following day. Further, the Respondent admits
that it failed to respond to the June 3 list that it had re-
quested from the Union and that it failed to return any of
the phone calls from the Union from July to October.
Objectively speaking, the Respondent’s June 2 request
for a list of disputed classifications created a reasonable
expectation on the part of the Union that the Respondent
would respond in due course to the information it re-
quested.6 The Respondent’s failure to do so is, of course,
highly relevant to the question of notice. As the judge
correctly found, it is the reason the Union did not have
clear and unequivocal notice of the Respondent’s rejec-
tion of its demand within the 10(b) period.
Notwithstanding all of these undisputed facts—
particularly the fact that it was the Respondent that af-
firmatively requested from the Union a “fresh list” of
disputed classifications on June 2, 1998—the majority
finds that the Union had clear and unequivocal notice of
a violation. The majority’s failure to take the Respon-
dent’s “conflicting signals” and “ambiguous conduct”
into account in determining the date by which the Union
received clear and unequivocal notice of the violation is
contrary to both the record evidence7 and case law that

5 The Respondent’s assertion that these ongoing negotiations were
“simply a repeated insistence by management that the status quo [of
excluding the disputed classifications of RNs] would remain” is not
supported by the record. It is also inconsistent with the Respondent’s
own characterization of “Marino’s conditional willingness” to include
certain RNs during these meetings. (R. Br. at 13, fn. 2.)
6 The majority asserts that I read “too much into the Respondent’s
nonresponse to the Union’s letter of June 3,” which provided the list
requested by the Respondent on June 2. However, the majority’s circu-
lar reasoning reads far more into this nonresponse than I do by asserting
that it negates the reasonableness of the expectation of a response.
7 In finding that the Union had clear and unequivocal notice as of its
July 1997 demand by reasoning that the “same set of facts applied in
October 1997, January 1998, June 1998, and the day the Union filed a
charge in December 1998,” the majority does not account for the un-
disputed evidence that in December 1997, Marino was representing to
the Union the Respondent’s desire to “continue this dialogue on this
matter” and “continue our efforts to resolve this matter internally and
directly between the parties.” Such express language, in addition to the
subsequent oral representations by Marino that the Respondent was
cautions otherwise. A&L Underground, supra, 302
NLRB at 469.
Indeed, the judge properly analogized the instant case
to that of Sterling Nursing Home, 316 NLRB 413 (1995).
In Sterling, as here, the respondent failed to apply the
existing collective-bargaining agreement to a discrete
group of unit employees under circumstances that the
judge found did not give the union clear and unequivocal
notice, within the 10(b) period, of a completed violation.
Id. at 416. The factual distinctions that the majority por-
trays between the two cases are superficially drawn. It is
true, as the majority points out, that unlike the employer
in Sterling, the Respondent here did not tell the Union
that it would “take care of” the problem of coverage of
the disputed employees. Id. The Respondent did, how-
ever, engage in settlement discussions with the Union for
a period of several months, signaling, by its own admis-
sion, an attempt to resolve the matter short of the Union
having to resort to the Board. Notwithstanding the ma-
jority’s apparent finding to the contrary, Marino’s offer
of a “package deal” to the Union in successive meetings
in 1997 and 1998 is evidence that the Respondent was
telegraphing to the Union the possibility that it would
recognize the Union as the representative of employees
in the disputed classifications and apply the contract to
them.8 As the judge implicitly found, this conduct on
behalf of the Respondent is analogous to the respon-
dent’s willingness, in Sterling, to “remedy the matter.”9
Surely, it was the representations of the employer that it

interested in a “package deal” in which the Respondent would agree to
coverage of the radiology RNs, the cardiac catheterization Lab RNs,
and possibly others (hence the June 3 request for a “fresh list” of classi-
fications), evidences the Respondent’s willingness to concede coverage
of some of the disputed RNs. Thus, at the very least, the Respondent
indicated to the Union that it was considering alternatives to its initial
position. That the Respondent’s position ultimately remained un-
changed does not render its exploration of alternatives a sham. In short,
so long as the Respondent indicated to the Union that it wanted to en-
gage in a dialogue and that it was considering the possibility of recog-
nizing some of the disputed RN classifications, its conduct thereby
precluded a finding of clear and unequivocal notice of a “completed
violation” of the Act, regardless of whether the Respondent, in the end,
acted on any of the alternatives it had been considering all those many
months.
8 For example, on behalf of the Respondent, Marino offered cover-
age of all radiology RNs in the October 1997 meeting. He then repre-
sented at the January 1998 meeting that the issue of coverage as to the
PCCs would be “cleaned up,” and additionally suggested coverage of
the cardiac catheterization RNs at that time.
9 As evidence of the Respondent’s resolve never to cover certain of
the disputed RNs, the majority emphasizes that Marino conditioned
resolution of the recognition demand as to any of the disputed RN
classifications upon the Union’s agreement as to all of them. While the
majority interprets this position as signaling an unconditional unwill-
ingness by the Respondent to cover some of the disputed RNs, the flip
side of this position is, of course, that the Respondent was willing to
cover at least some of the disputed RNs.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1134
was acting in good faith towards settling its dispute with
the union that mattered to the Board in Sterling, and not
the magic words uttered by the employer in that case.
The majority also asserts that the Union acted at its
own peril by not filing the charge at the time Marino
communicated the Respondent’s “package deal” propos-
als to the Union. However, this trivializes the Union’s
good-faith attempts to resolve the issues raised by its
demand for recognition of the disputed RNs, as well as
the Respondent’s willingness to engage the Union in
settlement negotiations at that time. It also trivializes
Board policy that encourages parties to attempt to settle
their disputes within the framework of collective bar-
gaining and without resort to the Board.10 See Steel-
workers v. Warrior & Gulf Navigation Co., 363 U.S.
574, 578 (1960) (Federal policy is to promote industrial
stabilization through the collective-bargaining agree-
ment). See also Steelworkers v. American Mfg. Co., 363
U.S. 564 (1960); Steelworkers v. Enterprise Wheel &
Car Corp., 363 U.S. 593 (1960).11 Finally, there can be
no dispute that the Respondent was sending mixed mes-
sages to the Union by seeking a “fresh list” of classifica-

10 The majority’s assertion that “[t]o hold that there is a tolling
would discourage the acting party from discussing with the other party
a possible resolution of the issue” flatly contradicts the majority’s ada-
mant position in this case that the Respondent’s settlement discussions
with the Union did not evidence the Respondent’s intent towards “a
possible resolution of the issue,” and that the Respondent, therefore,
had given clear and unequivocal notice to the Union that it was repudi-
ating the contract both before and during these discussions.
11 The “federal court litigation” cases cited by the majority are to-
tally inapposite. In Hunter-Boykin v. George Washington University,
132 F.3d 77 (D.C. Cir. 1998), the court of appeals reversed the lower
court’s grant of summary judgment and reinstated the plaintiff’s com-
plaint because the interpretation of the phrase “to toll the running of
any statute of limitations period,” as used in a letter agreement between
the plaintiff and the defendant, presented issues of material fact that
precluded judgment as a matter of law. In the three other cases cited by
the majority, there was no connection between settlement negotiations
and the issue of whether a violation of law had occurred. Michals v.
Baxter Healthcare Corp., 289 F.3d 402 (6th Cir. 2002), cert. denied
537 U.S. 944 (2002), involved a claim for injury as a result of breast
implants manufactured by the defendants; Librizzi v. Children’s Memo-
rial Medical Center, 134 F.3d 1302 (7th Cir. 1998), involved an alleged
breach of fiduciary duty; and Melhorn v. Amrep Corp., 373 F. Supp
1378 (M.D. Pa. 1974), involved an allegedly fraudulent land sale. It
was neither argued nor found that the settlement negotiations had any
bearing on whether there was an injury due to breast implants, a breach
of fiduciary duty, or a fraudulent land sale. In each case, the violation
was essentially assumed, and the question was whether the defendants’
involvement in settlement negotiations either waived or estopped a
statute of limitations defense.
Here, the violation turns on whether the Respondent gave clear and
unequivocal notice to the Union that it would not apply the contract to
the disputed RNs. In sharp contrast to the cases cited by the majority,
the Respondent’s settlement discussions in this case, which explored
alternatives to refusing coverage to the disputed RNs, have direct bear-
ing on whether such notice was given.
tions from the Union on June 2, only to then withhold
any response to the Union for an indefinite period there-
after. Based on this ambiguous conduct of the Respon-
dent, it was reasonable for the judge to find that the mat-
ter of whether the Respondent would recognize the Un-
ion as the representative of the disputed classifications of
RNs at the time the Union filed its charge in December
1998 was left “as a whole unresolved.” It was thus also
reasonable for the judge to conclude that the Respondent
did not satisfy its burden of showing that the Union had
clear and unequivocal notice prior to the 10(b) period
that the Respondent was no longer willing to negotiate
the subject of the disputed RNs. Accordingly, the Union
timely filed its charge in December 1998—less than 3
months after the Union’s last attempt to elicit a response
from the Respondent.
B. The Respondent’s Conduct in Refusing to Apply the
Contract Terms to Some Unit Employees Constituted
Repeated Breaches of the Contract, not
a Repudiation of the Contract
Even assuming clear and unequivocal notice, the ma-
jority is still wrong to conclude that the Respondent’s
conduct in failing to apply the contract terms to the dis-
puted classifications of unit employees amounted to a
contract repudiation, rather than repeated breaches of the
contract’s terms. The majority’s conclusion is not sup-
ported by the actual position of the Respondent or Board
precedent.
First, when the Respondent asserted the 10(b) affirma-
tive defense, it did not argue a theory of contract repudia-
tion at the hearing, in its exceptions, or anywhere in its
briefs submitted to the judge or to the Board. This theory
upon which the majority bases its conclusion to deny
relief to the Union is thus not properly before the Board
for consideration. Avne Systems, Inc., 331 NLRB 1352,
1354 (2000) (Board majority refused to consider argu-
ments made by a dissenting Board Member that were not
made by the respondent in the exceptions it filed to the
judge’s decision).
Second, the majority’s assertion that the Respondent’s
conduct constituted a repudiation of the conduct rather
than breaches of the contract is based on cases that are
inapposite. In A&L, the Respondent repudiated the entire
contract outside the 10(b) period. A&L Underground,
supra, 302 NLRB at 467–468. Natico, Inc., 302 NLRB
668 (1991), and Park Inn Home for Adults, 293 NLRB
1083 (1989), are even further wide of the mark. In each
of those cases, the Board was barred from finding a vio-
lation under the Farmingdale “repeated breaches” theory
because the unfair labor practice charge was filed more
than 6 months after the expiration of the applicable col-
ST. BARNABAS MEDICAL CENTER 1135
lective-bargaining agreement initially creating the alleg-
edly breached obligation.
Here, by contrast, the Respondent did not repudiate the
entire agreement, and the Union’s charge was filed dur-
ing its term. Even under the most generous characteriza-
tion of the facts, the Respondent’s conduct constituted a
partial or selective repudiation of the contract at best, as
it is undisputed that the Respondent applied the contract
terms to some RN unit employees but not others. Con-
trary to the majority, conduct amounting to a partial re-
pudiation of a contract does not constitute a “total repu-
diation” or “completed violation” of the Act. It does not
amount to a “repudiation” at all.12 Instead, as the judge
found, the application of terms of an existing contract to
some unit employees but not others results in a series of
breaches of the collective-bargaining agreement. Vallow
Floor Coverings, Inc., 335 NLRB 20 (2001). See also
Farmingdale, supra. The judge thus properly analyzed
the instant case within the framework of Sterling, supra,
in which the Board reiterated that failure to apply signifi-
cant provisions of a collective-bargaining agreement to
unit employees amounts to a breach of the contract and
not a contract repudiation. 316 NLRB at 416. Indeed, in
Sterling, the judge specifically rejected the respondent’s
attempts to analogize a refusal to apply contract terms to
a discrete group of unit employees to a contract repudia-
tion. The judge said, and the Board agreed, that cases
involving repudiations of entire agreements (or signifi-
cant contract provisions, or an already expired agree-
ment) are inapposite to situations like the one presented
in Sterling, where the respondent had been applying the
contract terms to some unit employees yet refused to
apply those same terms to other unit employees. Id.
Likewise, the Respondent here has applied the terms of
the collective-bargaining agreement to some unit em-
ployees but not to the disputed classifications of unit
employees
C. Conclusion
The Respondent’s conduct in sending mixed messages
to the Union—from its assertions that it would “continue
dialogue” on the matter of the disputed classifications to
its offer of “package deals” at various points between
July 1997 and June 1998—absolutely precludes a finding
of clear and unequivocal notice in this case. Further-
more, even assuming that the Union had clear and un-
equivocal notice, under longstanding Board precedent,
the Respondent’s conduct constituted a breach of the
contract’s terms, and not a repudiation of the contract.

12 The majority does not point to a single case in which the Board or
a court has found a partial repudiation to constitute a “completed viola-
tion” of the Act.
The majority’s conclusion that the complaint is time
barred is thus wrong as a matter of fact and law.
Tara Levy, Esq., for the General Counsel.
Frank Mastro, Esq. and Maurice Nelligan, Esq. (Apruzzese,
McDermott, Mastro & Murphy), of Liberty Corner, New
Jersey, for the Respondent.
Adrienne Saldana, Esq. (Spivak, Lipton, Watanabe, Spivak &
Moss), of New York, New York, for the Charging Party.
DECISION
STATEMENT OF THE CASE
JESSE KLEIMAN, Administrative Law Judge. On the basis of
a charge filed by New Jersey Nurses Union, affiliated with the
Communication Workers of America, AFL–CIO as Local 1091
(the Union) on December 21, 1998, against Saint Barnabas
Medical Center (the Respondent or the Hospital), a complaint
and notice of hearing was issued on August 5, 1999, alleging
that the Respondent has been engaging in certain unfair labor
practices as set forth in the National Labor Relations Act (the
Act), by failing to recognize the Union as the representative of
certain registered nurses (RNs) the Respondent has failed and
refused to bargain collectively and in good faith with the exclu-
sive collective-bargaining representative of its employees
within the meaning of Section 8(d) of the Act in violation of
Section 8(a)(1) and (5) of the Act.1 By answer timely filed the
Respondent denied the material allegations in the complaint
and raised several affirmative defenses.
A hearing in this matter was held before me in Newark, New
Jersey, between February 25 and March 28, 2002. Subsequent
to the closing of the case, the General Counsel and the Respon-
dent filed briefs.2
On the entire record and the briefs of the parties, and on my
observation of the witnesses, I make the following
FINDING OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent has maintained a hospital including offices
in Livingston, New Jersey, where it delivers health care ser-
vices. During the 12-month period ending in December 1998,
the Respondent, in conducting its business operations, derived
gross revenues in excess of $250,000, and purchased and re-
ceived at its Livingston facility products, goods, and materials
valued in excess of $5000 directly from points outside the State
of New Jersey. The complaint alleges, the Respondent admits,

1 The parties having reached an agreement providing for the satisfac-
tory adjustment of the issues raised by the charges regarding the Union
Hospital Cancer Center nurses, and the Union having requested with-
drawal of the charge insofar as it concerns the Union Hospital Cancer
Center nurses, by order dated November 28, 2001, the Regional Direc-
tor for Region 22, dismissed the allegations in the complaint pertaining
to the Union Hospital Cancer Center and approved the request to par-
tially withdraw the charge in this case.
2 Certain errors of the transcript are noted and corrected.
As regards the Respondent’s motion to expunge a comment made by
its counsel, Tr. 625, L. 22, “not intended for publication,” there being
no opposition thereto, I hereby grant the motion to expunge this state-
ment from the record.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1136
and I find that the Respondent is now, and has been at all times
material, an employer engaged in commerce within the mean-
ing 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.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the Respondent admits, and I find that
the Union, at all material times, has been a labor organization
within the meaning of Section 2(5) of the Act. The complaint
also alleges and I find that the following employees of the Re-
spondent (the unit) constitutes a unit appropriate for the pur-
poses of collective bargaining within the meaning of Section
9(b) of the Act:3
All full-time and regular part-time registered nurses and
graduate nurses, including charge nurses and IV therapists,
employed by the Employer at its Livingston, New Jersey fa-
cility, but excluding all office clerical employees, graduate
practical nurses and licensed practical nurses, infection con-
trol employees, utilization review employees, home health
care coordinators, in-service instructors, nursing instructors,
computer coordinators, nutrition specialists, anesthesiology
coordinators, other professional and non-professional em-
ployees, other technical employees, service and maintenance
employees, engineers, managerial employees, nursing coordi-
nators, temporary employees, guards and supervisors, includ-
ing head nurses and radiology nurse specialists, as defined in
the Act, and all other employees.
The complaint alleges, the Respondent admits, and I find that
on or about August 12, 1991, the Union was certified as the
exclusive collective-bargaining representative of the unit.
Since then the Respondent has recognized the Union as the
collective-bargaining representative of the unit employees and
this recognition has been embodied in successive collective-
bargaining agreements, the most recent of which is effective
from November 2, 1999, to November 1, 2002. Karen May,
the Union’s labor representative since 1995 monitors the Hos-
pital’s compliance with the collective-bargaining agreement
between the parties.4
III. THE ALLEGED UNFAIR LABOR PRACTICES
The Evidence
Saint Barnabas Medical Center is a single facility acute care
hospital with six floors containing 600 to 620 beds. The Union
represents approximately 850 nurses and 40 licensed practical
nurses who work in about 36 patient care units, with 15 to 80
RNs assigned to a nursing unit. Veronica Geissler, director of
patient care services testified that there are about 200 other RNs
working at the hospital, including administrative and supervi-
sory employees who are not members of the bargaining unit.

3 The Respondent notes in its answer that the unit described in
“paragraph 6 of the Complaint” is the unit currently recognized by the
Respondent and embodied in the collective-bargaining agreement be-
tween the Respondent and the New Jersey Nurses Union (NJNU).
4 The Union’s principal officers are its co-chairs. Sondra Clark held
the position of executive director of the Union from 1990 to 2001. May
was a union co-chair from 1991 to 1996.
The disputed nurses are RNs working: (1) as patient care
coordinators; (2) in the radiology department, also referred to
as the X-ray department; (3) in the employee health area; (4) in
the cardiac catheterization laboratory; (5) as case managers; (6)
in the Pediatric Clinic or the Pediatric Health Center; (7) in the
Pediatric Oncology Outpatient Clinic (Valery Clinic).
The Patient Care Coordinators
In or about 1989, the Respondent established the position of
patient care coordinator (PCC) in the nursing department.
Geissler testified that the function of the PCC RNs was to assist
the nurse manager in running the nursing unit, supervising the
staff, and assuring quality patient care. In 1994, the Union
received information from one of its members that a PCC was
performing “charge nurse” duties.5 It is undisputed that charge
nurses are included within the collective-bargaining unit.
By letter dated August 9, 1994, Union Co-chair Karen May
asked the Hospital to provide the Union with a job description
for the PCC. When the Hospital failed to provide the requested
information, Union Executive Director Sondra Clark renewed
the request by memorandum dated February 3, 1995, adding
therein a request for the names and assignments of the PCCs,
and complaining that the Hospital was improperly assigning a
PCC named Eileen O’Rourke direct patient care responsibili-
ties. When the Hospital failed to respond to the Union’s re-
quests, the Union reiterated its request for the PCC job descrip-
tions by memorandum dated March 30, 1995.
The Hospital advised the Union, by letter dated April 3,
1995, that it would not provide the job description, and names
and assignments of the PCCs requested by the Union since this
information involves “personnel who are not part of the bar-
gaining unit represented by NJNU.” Additionally, the Hospital
denied that it had assigned a full patient care assignment to
O’Rourke who “has been fully functioning in her management
role” as a PCC, “unless a staffing shortage develops and her
assistance is required.” The Union then filed an unfair labor
practice charge on April 5, 1995, alleging that the Hospital’s
refusal to provide the requested information violated Section
8(a)(5) of the Act. After the issuance of a complaint by the
Region on August 28, 1997, the Hospital, by letter dated March
27, 1998, provided the Union with the job description of the
PCCs. By letter dated August 29, 1999, as part of the settle-
ment of the unfair labor practice complaint, the Hospital pro-
vided the Union with the names of the PCCs and the units to
which they were assigned.
In about April 1997, Union Representative May received in-
formation from one of the union delegates that in the Hospital’s
telemetry or “5700” unit, the Hospital had assigned one PCC to
perform charge nurse duties full time and another PCC to spend
all of her time on patient care. May testified that direct patient
care is bargaining unit work. Moreover, Veronica Geissler, a
witness for the Respondent, testified that since at least 1995,
PCCs provided direct patient care as part of their function in

5 “Charge nurses” assign other RNs, who are referred to as “staff
RNs” to patients, assign staff RNs lunchtime and breaktime and per-
form other oversight duties.
ST. BARNABAS MEDICAL CENTER 1137
delivering quality care to patients and “just not to—manage and
supervise.”6
Radiology RNs
The radiology or X-ray department employees perform diag-
nostic testing, including CAT scans, ultra sound, MRI tests, and
X-rays, on patients. Approximately 300 patients are tested each
day. May testified that prior to 1997, the Union was aware of
only one RN working in the radiology department, Myrna Lao,
who was a member of the bargaining unit. In about March
1997 Lao raised an issue about her work schedule to May who
now for the first time learned that there were other RNs work-
ing in the radiology department alongside Lao and while these
other radiology RNs were performing duties similar to those
performed by Lao, the Hospital did not consider these RNs to
be in the bargaining unit. Lao reported to May that there were
three RNs working in radiology beside herself.
During the hearing, the Hospital did not rebut the Union’s
evidence that the duties of all the radiology RNs were essen-
tially similar. Also, the parties stipulated that between Novem-
ber 1991 and December 1998, the Respondent employed non-
supervisory RNs in its radiology department and excluded them
from the collective-bargaining unit represented by the Union.7
Employee Health RNs
Prior to 1997, it was the Union’s belief that the Hospital em-
ployed only a supervisory RN in the employee health depart-
ment. When in April 1997, a union delegate visited the Em-
ployee health department after being injured at work, she no-
ticed that there was more than one RN working in the employee
health area. When the union delegate told Union Representa-
tive May about this, May concluded that there were RNs work-
ing in the employee health department who should be included
in the collective-bargaining unit. The parties stipulated that at
times between November 1991 and December 1998, the Re-
spondent employed nonsupervisory RNs in its employee health
department and failed to include them in the bargaining unit
represented by the Union.
Cardiac Cauterization RNs
In the Hospital’s cardiac catheterization unit, the condition of
a patient’s heart is tested by a doctor using a catheter inserted
into a heart’s vein, and by flouroscopy. Between 1974 and
1980, prior to the Union’s collective-bargaining relationship
with the Respondent, the Hospital employed RNs in the cardiac
cauterization laboratory. In about August 1997, the Union first
learned that there were RNs working in that unit who were not

6 During the Board’s investigation of the unfair labor practice
charge, the Hospital advised the Region that in 1999 there were ap-
proximately 20 PCCs. At the trial, Geissler testified that there pres-
ently were 32 PCCs working in about a third of the patient care units.
7 The Respondent offered no evidence to explain why it failed to in-
clude the other RNs in the radiology department in the unit other than
that Pam Micchelli, manager of standards and performance improve-
ment and previously clinical nurse specialist in the radiology depart-
ment and a witness for the Respondent, testified that when Lao trans-
ferred to the radiology department from the Hospital’s operating room,
where she had been a member of the bargaining unit, she elected to
remain in the unit.
in the bargaining unit. It was stipulated by the parties that be-
tween November 1991 and December 1998, the Hospital em-
ployed nonsupervisory RNs in the cardiac catheterization area
and failed to include them in the collective-bargaining unit
represented by the Union. At the hearing, Frank Soldo, clinical
director of the cardiac catheterization laboratory, an RN and
testifying as a witness for the Respondent, related that, at pre-
sent, there are 13 RNs working in the cardiac catheterization
area, and 4 cardiovascular technologists, 2 technical assistants,
2 department secretaries, an inventory manager, and a cauteri-
zation lab coordinator.
Case Managers
Prior to February 1998 the Union was unaware of a position
at the Hospital entitled case manager. However, on about Feb-
ruary 26, 1998, Karen May learned that the Respondent was
recruiting RNs to be case managers when she saw a posted flier
at the Hospital stating “RNs, Are you interested in a career
change? Have you thought about Case Management?” By
memorandum dated February 26, 1998, the Union requested
information about the case managers, including a job descrip-
tion, the number of positions the Hospital was seeking to fill,
and whether an RN degree was required for the position. When
the Hospital failed to reply the Union followed its request for
information by another memorandum dated April 27, 1998. On
May 25, 1998, the Hospital’s director of human resources, Mar-
tin J. Marino, contacted the Union and asked for more time to
respond to the Union’s request for information on case manag-
ers. The Respondent has never supplied the Union with the
requested information on case managers.
The parties stipulated that during at least the period from
1997 through December 1998, the Hospital employed nonsu-
pervisory RNs as case managers and did not include them in the
collective-bargaining unit represented by the Union. The Re-
spondent’s witness, Susan Sorge, manager of the case man-
agement department, testified that the Hospital began employ-
ing RNs as case managers in 1998. The Hospital requires Case
managers to be RNs. Sorge stated that at present there are 31
case managers all of whom are RNs.
Pediatric Oncology Outpatient Clinic RNs
The Pediatric Oncology Outpatient Clinic (also Valery Clinic
or Center) is an outpatient facility for children with cancer and
serious blood disorders. It was stipulated by the parties that
during at least the period from 1997 through December 1998,
the Respondent employed nonsupervisory RNs in the Valery
Clinic, and did not include them in the collective-bargaining
unit represented by the Union. Jamie Cappuccino, nurse man-
ager of the Valery Center and advance practice nurse, a witness
for the Respondent testified that in about 1997, the Hospital
hired two RNs to work in the Valery Clinic as advanced prac-
tice RNs and one RN as nurse clinician. Sometime in 1998 the
Hospital hired two RNs to serve as staff RNs in the Valery
Clinic.
In early June 1998 the Union learned that there were RNs
working in the Valery Clinic to whom the Hospital was not
applying the bargaining agreement. Cappuccino stated that in
1999 the Hospital hired an RN as an office practice nurse to
work in the Valery Clinic and that she as Valery Clinic ad-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1138
vanced practice RN received the additional title of nurse man-
ager. In the year 2000, the Hospital hired an RN to work in the
Valery Clinic as sickle cell/cog data manager coordinator, an
RN to work as a PCC in the clinic, and another nurse clinician.
Cappuccino related that currently, the Hospital employs in the
Valery Clinic the following RNs: Herself as advanced practice
nurse/nurse manager, a PCC, two office practice RNs, a sickle
cell/cog data manager coordinator, and two part-time clinicians.
The Hospital has excluded each of these RNs from the unit.
Pediatric Clinic RN
In June 1998, the Union first learned that the Hospital was
employing an RN in the Pediatric Clinic. The parties stipulated
that at times between November 1991 and December 1998, the
Hospital employed an RN, Jean Weintraub in its Pediatric
Clinic and failed to include her in the collective-bargaining unit
represented by the Union.
The Union’s Recognition Demands
By memo dated July 8 and received by the Respondent on
August 12, 1997, the Union demanded recognition for the RNs
in the radiology department, the cardiac catheterization labora-
tory, and for the patient care coordinator working in the teleme-
try unit, the RNs in the employee health area and additional
RNs not at issue in this proceeding. In a telephone conversa-
tion on August 26, 1997, between Union Executive Director
Clark and Hospital Director of Human Resources Marino,
Clark requested the job descriptions for the RN positions listed
in the Union’s recognition demand, the names of the persons
holding these positions and the shifts on which they worked.
By letter dated September 8, 1997, the Union having failed to
receive any of the requested information, asked the Respondent
for a response to its recognition demand. The Hospital replied
on September 10, 1997, asking for additional time to review the
matter.
Hospital Director of Human Resources Martin Marino and
Union Representatives Sondra Clark and Karen May met on
October 20, 1997, to discuss the Union’s recognition demand.
At this meeting, Marino presented what he termed was the
Hospitals’ “initial thinking” on the matter. Marino said that the
PCCs were managerial employees; the RNs in the employee
health area were managerial and confidential employees; the
Hospital excluded RNs in the cardiac catheterization laboratory
from the bargaining unit because their work was technical; and
that the RNs in the radiology department could be included in
the bargaining unit with the exception of one nurse whom the
Hospital wanted to title assistant clinical nurse specialist as a
supervisor. Union Representatives Clark and May took the
position that the cardiac catheterization RNs and the Employee
Health RNs are nurses and therefore includable in the bargain-
ing unit. As for the confidentiality contention, the Union al-
leged that all RNs handle confidential information. The Union
Representatives also asserted that the PCCs performed bargain-
ing unit work and direct patient care. Marino said that he was
not aware that PCCs were doing direct patient care and would
investigate this. He also stated that it was a package deal and
the Hospital would not take any action until all of the bargain-
ing unit status of the disputed RN classifications were discussed
and agreed on by the parties. Marino advised that if the Re-
spondent and the Union could not reach agreement on the rec-
ognition demand that the matter would have to be resolved by
the Board.
May testified that the same parties’ representatives had an-
other meeting on January 13, 1998. Marino told the Union that
the Hospital continued to regard the PCCs as managerial, as are
employee health RNs since they made decisions concerning the
status of RNs worker’s compensation and that the work of the
cardiac catheterization laboratory RNs was technical in nature
and therefore not covered by the parties’ collective-bargaining
agreement. Marino reiterated that the Hospital would include
the radiology department RNs in the bargaining unit except for
one RN, a supervisor, as part of a package deal. At the end of
this meeting, Marino proposed that if the Union withdrew a
portion of another pending Board case, the Hospital would
include the cardiac catheterization laboratory RNs and radiol-
ogy department RNs in the bargaining unit. The Union rejected
this proposal. At meetings’ end, Marino repeated the Hospi-
tal’s proposal and asked the Union to reconsider it.
On June 2, 1998, the parties met again to discuss the Union’s
recognition demand. At the meeting, May and Clark repre-
sented the Union while Marino and Manager of Human Re-
sources Stacy Aster, the Hospital. At this meeting, the Union
added additional RNs to its recognition demand: the case man-
agers, the pediatric oncology outpatient nurses, and pediatric
clinic nurse. Marino reiterated the Hospital’s position that the
PCCs were managerial, employee health RNs were both mana-
gerial and confidential, cardiac catheterization RNs were tech-
nical in nature, and that all but one radiology RN could be in-
cluded in the unit. Marino also asked for a “fresh list” of the
RN classification for which the Union sought recognition. May
also testified that Marino also said, regarding the PCCs, “If the
hospital—that having them not do—do direct patient care
would cause financial hardship because the hospital would then
have to hire more staff nurses to provide this—this work”.
By memo dated June 3, 1998, the Union provided the Hospi-
tal with the list of RNs for “which the Union believes must be
included in the current bargaining unit.” On July 6, 1998,
Clark left a telephone message for Marino requesting a meeting
to discuss the Union’s recognition demand. Clark called Mar-
ino again on August 10 and October 21, 1998, asking for a
meeting on the recognition issue. There was no response from
the Hospital. May testified that on October 22, 1998, after
Clark saw an advertisement that the Hospital had placed in the
local newspaper seeking to hire RNs to work at the Hospital’s
Union Cancer Center, Clark notified the Hospital that the Un-
ion wanted to add these RNs to the Union’s demand for recog-
nition. The Hospital, having failed to respond to the Union’s
requests for a meeting on the recognition issues, the Union then
filed a charge in this case on December 24, 1998.
The Respondent notes in its brief that the Hospital filed a
unit clarification petition with the Region, “seeking a determi-
nation that the disputed classifications should not be included in
the bargaining unit.” The Acting Regional Director for Region
22 dismissed the petition, on November 5, 1999, stating, “The
Board has declared that unit clarification is not appropriate to
change a unit description set forth in the parties’ collective
agreement. Union Electric Co., 217 NLRB 666, 667 (1975).”
ST. BARNABAS MEDICAL CENTER 1139
He noted that the status of the disputed classifications were the
subject of a pending unfair labor practice complaint.
The Respondent maintains and May acknowledged that at no
time had the Union alleged to the Hospital that it represents a
majority of the RNs in any of the disputed classifications.
While May also testified that she had no way of knowing if the
Union actually represented a majority of these RNs in “any
grouping,” she did admit that there was nothing to demonstrate
that the Union did represent such a majority. The Respondent
also asserts in its brief that the Union failed to file a grievance
alleging that the Hospital violated the contract by its failure to
extend the bargaining contract’s coverage to the employees in
the disputed classifications. Further, the Respondent notes that
during negotiations for the 1996–1999 and 1999–2002 collec-
tive-bargaining agreements between the parties “the Union did
not raise the subject of any of the disputed classifications or
question their exclusion from the unit.”
Credibility
Regarding the credibility of the respective parties’ witnesses,
after carefully considering the record evidence, I have based
my findings on my observation of the demeanor of the wit-
nesses, the weight of the respective evidence, established and
admitted facts, inherent probabilities, and reasonable inferences
which may be drawn from the record as a whole. American
Tissue Corp., 336 NLRB 435 (2002); New York University
Medical Center, 324 NLRB 887 (1997); Gold Standard Enter-
prises, 259 NLRB 618 (1978); V & W Castings, 231 NLRB
912 (1977); and Northridge Knitting Mills, 223 NLRB 230
(1976). I tend to credit the testimony of the General Counsel’s
witnesses. Their testimony was given in a forthright manner,
generally consistent and corroborative of each others, and con-
sistent with other believable evidence in the record. Moreover,
some of their testimony of consequence was actually corrobo-
rated by that of the Respondent’s witnesses. Further, based on
their demeanor I found them to be believable and trustworthy
as witnesses.
This is not to say that I discredit all of the testimony of the
Respondent’s witnesses where it does not conflict with that of
the General Counsel’s witnesses. It appeared believable at
those times.8 However, I found that some of the testimony of
the Respondent’s witnesses was less than reliable, being at
times inconsistent, evasive, and belligerent during cross-
examination, and evidencing a demeanor less than forthright
and believable.
Analysis and Conclusions
The complaint alleges that the Respondent, by excluding the
patient care coordinators, X-ray registered nurses, or radiology
nurses, employee health nurses, cardiac catheterization nurses,
case manager nurses, pediatric oncology outpatient nurses, and
pediatric clinic nurses from the bargaining unit represented by
the Union and by refusing to recognize the Union as the collec-
tive-bargaining representative of these employees, the Respon-

8 It is not unusual that based on the evidence in the record the testi-
mony of a witness may be credited in part, while other segments
thereof are discounted or disbelieved. Jefferson National Bank, 240
NLRB 1057 (1979), and cases cited therein.
dent has thereby refused and failed to bargain in good faith with
the Union in violation of Section 8(a)(1) and (5) of the Act.
An employer who fails to apply a collective-bargaining
agreement to unit employees violates Section 8(a)(1) and (5) of
the Act. Gourmet Award Foods, Northwest, 336 NLRB 872
(2001); Moeller Bros. Body Shop, 306 NLRB 191, 193 (1992);
General Equipment Co., 297 NLRB 430, 434 (1989); and Ed-
ward J. White, Inc., 237 NLRB 1020 (1978). The Board in
Gourmet Award Foods, Northwest, supra at 872, stated:
It is axiomatic that when an established bargaining unit
expressly encompasses employees in a specific classifica-
tion, new employees hired into that classification are in-
cluded in the unit. This inclusion is mandated by the
Board’s certification of the unit or by the parties’ agree-
ment regarding the unit’s composition.
The recognition language in the collective-bargaining agree-
ment in this case reads:
The Employer recognizes the Union as the sole and
exclusive collective bargaining representative of all full-
time and regular part-time registered nurses and graduate
nurses, including charge nurses and IV therapists em-
ployed by the Employer at its Livingston, New Jersey fa-
cility, but excluding all office clerical employees, graduate
practical nurses and licensed practical nurses, infection
control employees, utilization review employees, home
health care coordinators, in-service instructors, computer
coordinators, nutrition specialists, anesthesiology coordi-
nators, other professional employees, other technical em-
ployees, service and maintenance employees, engineers,
managerial employees, nursing coordinators, temporary
employees, guards and supervisors, including head nurses
and radiology nurse specialists, as defined in the Act, and
all other employees.
This is the unit certified by the Board and includes RNs gener-
ally if the nurse does not fall within the stated exclusions. It is
undisputed that the Hospital has hired RNs to work in its car-
diac catheterization laboratory, and as case managers, and in its
employee health department, pediatric clinic, pediatric oncol-
ogy outpatient clinic, and radiology department without includ-
ing any of these nurses in the bargaining unit.
The Hospital, as the party seeking to exclude RNs from the
collective-bargaining unit has the burden of justifying the ex-
clusion. Gaines Electric Co., 309 NLRB 1077, 1078 (1992);
Patriot-News, 308 NLRB 1296, 1297 (1992), enfd. 5 F.3d 1490
(3d Cir. 1993); and Bay Shipbuilding Corp., 263 NLRB 1133,
1140 (1982), enfd. 721 F.2d 187 (7th Cir. 1983). Moreover, it
is the position of the General Counsel and the Union that even
if the Hospital proves that some of these RNs are supervisory,
managerial, or confidential employees, the Hospital must rec-
ognize the Union as the representative of the disputed RNs.
Patient Care Coordinators
The Respondent asserts that the patient care coordinators are
supervisors within the meaning of Section 2(11) of the Act and
therefore should be excluded from the unit of nurses.
Section 2(11) of the Act provides:
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1140
The term “supervisor means” any individual having the au-
thority, in the interest of the employer, to hire, transfer, sus-
pend, layoff, recall, promote, discharge, assign, reward, or
discipline other employees, responsibly to direct them, or to
adjust their grievances, or effectively to recommend such ac-
tions, if in connection with the foregoing the exercise of such
authority is not of a merely routine or clerical nature, but re-
quires the use of independent judgment.
The status of supervisor under the Act is determined by an in-
dividual’s duties not by his or her title or job classification.
Demco New York Corp., 337 NLRB 850 (2002); New Fern
Restorium Co., 175 NLRB 871 (1969). Also see Longshore-
men ILA v. Davis, 476 U.S. 380, 396 fn. 13 (1986). To qualify
as a supervisor, it is not necessary that an individual possess all
of these powers. Rather, possession of any one of them is suffi-
cient to confer statutory status. Demco New York Corp., supra;
Cypress Lawn Cemetery Assn., 300 NLRB 609 (1990); Supe-
rior Bakery, 294 NLRB 256 (1989), enfd. 893 F.2d 493 (2d
Cir. 1990); and NLRB v. Bergen Transfer & Storage Co., 678
F.2d 679 (7th Cir. 1982).
However, consistent with the statutory language and legisla-
tive intent, it is well recognized that 2(11)’s disjunctive listing
of supervisory indicia does not alter the essential conjunctive
requirement that a supervisor must exercise independent judg-
ment in performing the enumerated functions. HS Lordships,
274 NLRB 1167 (1985); NLRB v. Wilson-Crissman Cadillac,
Inc., 659 F.2d 728 (6th Cir. 1961). Indeed, as the court stated
in Beverly Enterprises v. NLRB, 661 F.2d 1095 (6th Cir. 1981).
“Regardless of the specific kind of supervisory authority at
issue, its exercise must involve the use of true independent
judgment in the employer’s, interest before such exercise of
authority becomes that of a supervisor.” Thus the exercise of
some supervisory authority “in a merely routine, clerical, per-
functory or sporadic manner does not elevate an employee into
the supervisory ranks,” the test must be the significance of his
judgment and directions. NLRB v. Wilson-Crissman Cadillac,
Inc., supra; Lakeview Health Center, 308 NLRB 75 (1992);
Hydro Conduit Corp., 254 NLRB 433 (1991). Consequently,
an employee does not become a supervisor merely because he
gives some instructions or minor orders to other employees.
NLRB v. Wilson-Crissman Cadillac, Inc., supra.
Nor does an employee become a supervisor because he has
greater skills and job responsibilities or more duties than fellow
employees. Federal Compress Warehouse Co. v. NLRB, 398
F.2d 631 (6th Cir. 1968). Additionally, the existence of inde-
pendent judgment alone will not suffice for “the decisive ques-
tion is whether [the employee] has been found to possess au-
thority to use independent judgment with respect to the exercise
. . . of some one or more of the specific authorities listed in
Section 2(11) of the Act.” Advance Mining Group, supra;
NLRB v. Brown & Sharpe Mfg. Co., 169 F.2d 331 (1st Cir.
1958). In short, “some kinship to management, some empa-
thetic relationship between employer and employee must exist
before the latter becomes a supervisor for the former.” Ad-
vance Mining Group, supra; NLRB v. Security Guard Service,
384 F.2d 1 (5th Cir. 1967). Moreover, in connection with the
authority to recommend actions, Section 2(11) requires that the
recommendations must be effective.
The burden of proving that an employee is a “supervisor”
within the meaning of the Act rests on the party alleging that
such status exists. Pine Brooks Care Center, 322 NLRB 740
(1996); Ohio Masonic Home, 295 NLRB 390 (1989); RAHCO,
Inc., 255 NLRB 235 (1983); Tucson Gas & Electric Co., 241
NLRB 181 (1974).9 Where the possession of any one of the
aforementioned powers is not conclusively established, or “in
borderline cases” the Board looks to well-established secondary
indicia, including the individuals’ job title or designation as a
supervisor, attendance at supervisorial meetings, job responsi-
bilities, authority to grant time off, etc., whether the individual
possesses a status separate and apart from that of rank-and-file
employees. NLRB v. Chicago Metallic Corp., 794 F.2d 531
(9th Cir. 1986); Monarch Federal Savings & Loan, 237 NLRB
844 (1978); and Flex-Van Corp., 288 NLRB 956 (1977). How-
ever, when there is no evidence that an individual possesses any
one of the several primary indicia for statutory status enumer-
ated in Section 2(11) of the Act, the secondary indicia are in-
sufficient by themselves to establish statutory supervisory
status. J.C. Brock Corp., 314 NLRB 157 (1994); St. Alphonsus
Hospital, 251 NLRB 620 (1982). Additionally, whenever there
is inconclusive or conflicting evidence on specific indicia of
supervisory authority, the Board will find that supervisory
status has not been established with respect to those criteria.
In NLRB v. Health Care & Retirement Corp., 511 U.S. 571
(1994), the Supreme Court set forth the test for determining
whether an individual is to be deemed a supervisor. The Court
noted that in making a determination on the question of one’s
supervisory status:
[T]he statute requires the resolution of three questions and
each must be answered in the affirmative if an employee is to
be deemed a supervisor. First, does the employee have au-
thority to engage in one of the 12 listed activities [in section
2(11)]? Second, does the exercise of that authority require
“the use of independent judgment”? Third, does the em-
ployee hold authority “in the interest of the employer”?
Id. at 573–574.
Veronica Geissler, the Respondent’s administrative director
for patient care services testified uncontradictedly10 that there
are approximately 800 bargaining unit nurses employed in 30
nursing units. There are currently 32 PCCs, with some units
having one or more PCCs, others having none, this being based
upon the size of the unit and number and acuity of the patients
in the unit. Geissler stated that the PCC is responsible for as-

9 However, in NLRB v. Health Care & Retirement Corp. of America,
987 F.2d 1256 (6th Cir. 1991), the Sixth Circuit held that the General
Counsel has the burden of establishing supervisory status.
10 While the testimony of Jamie Cappuccino, an advanced practice
nurse and nurse manager of the Valery Center (Pediatric Hematol-
ogy/Oncology Clinic) appeared somewhat belligerent and evasive on
cross-examination, it did support Geissler’s testimony as to the duties
and responsibilities of the PCCs. Cappuccino testified that when she is
not there the PCC supervises the employees on the unit can make or
change nurse assignments, recommends evaluations, recommends
hiring of employees, and effectively recommends disciplinary actions.
ST. BARNABAS MEDICAL CENTER 1141
sisting the nurse managers in the operation of the nursing unit,
ensures that quality patient care is delivered, and is responsible
for managing and supervising the staff. Geissler related that
there are times when only the PCC may be present for the su-
pervision of nurses, technicians, and aides within the unit.
Geissler testsified that the PCCs are involved in the inter-
viewing and hiring process of nurses and can effectively rec-
ommend the hiring of nurse applicants. The PCC may and does
provide verbal counseling and issue verbal warnings which
subsequently can be reduced to writing and included in an em-
ployees personnel file. Evidence was introduced to show that
PCCs at times make annual evaluations of RNs at the Hospital,
make daily nurse assignments based on vacation schedules,
seniority, number of nurses needed, type of patients on the unit,
etc. PCCs also can request additional staffing and reassign RNs
based on nursing floor needs. Geissler also testified that on
occasion, PCCs will substitute for nurse managers at staff meet-
ings and can excuse latenesses. PCCs are salaried and receive a
different package of benefits than that received by bargaining
unit employees.11 The Respondent also maintains that the
PCCs “do not share a community of interest with other em-
ployees in the unit.”
Based on the record evidence, I find and conclude that the
PCCs meet the Board’s definition of supervisor within the
meaning of Section 2(11) of the Act. However, as the Respon-
dent states in its brief, “It is noteworthy that the Union has ac-
knowledged that the PCC is part of management. . . . The Un-
ion’s labor representative testified that if the PCCs were not
doing direct patient care, the Union would have no complaint
and would concede they were part of management. The fact
that the Union viewed PCCs doing direct patient care as a vio-
lation of its contract implies that the PCC was part of manage-
ment, i.e., a supervisor doing bargaining unit work.”
An employer violates Section 8(a)(1) and (5) of the Act
when it reassigns work performed by bargaining unit employ-
ees to others outside the unit without affording notice or an
opportunity to bargain to the collective-bargaining representa-
tive. Harris-Teeter Super Markets, 307 NLRB 1075 fn. 1
(1992). The evidence shows that the Hospital since 1995 has
assigned bargaining unit duties, i.e., charge nurse duties and
patient care assignments, to PCCs without notice and an oppor-
tunity to the Union to bargain. However, this is a not alleged in
the complaint as a violation nor does it answer the question as
to whether the PCCs belong in the appropriate unit represented
by the Union.
The General Counsel and the Union assert that it makes no
differences if PCCs are supervisors or managerial employees
since they are assigned patient care duties like every other
nurse who belongs in the unit. The General Counsel cites two
particular cases in support of this position.
The Board in Carolina Telephone & Telegraph, 258 NLRB
1387 (1981), stated:
In Arizona Electric Power Corp., 250 NLRB 1132 (1980), we
held that a unilateral attack on the integrity of an agreed-upon
bargaining unit would be disruptive of an established bargain-

11 The PCC job description in evidence (GC Exh. 11) states that the
PCC supervises the “RNs, LPN’s NAS and unit clerks.”
ing relationship, and that therefore the scope of a unit may be
changed only by mutual agreement of the parties or by Board
action. Consequently, we found that a respondent’s unilateral
action in withdrawing recognition from a union as representa-
tive of certain employees during midterm of a contract, the
bargaining unit of which the parties had knowingly and vol-
untarily negotiated, violated the Act. We noted that our con-
clusion would not be altered by a finding that the employees
affected by the Respondent’s action were supervisors or
managerial employees. Id. at 1133–1134. 12
Moreover, in Gratiot Community Hospital, 312 NLRB 1075
fn. 2 (1993), enfd. 51 F.3d 1255 (6th Cir. 1995), the Board
held:
The judge found that some of the nursing supervisors were
statutory employees. We do not reach that issue. For, even
assuming arguendo that all the nursing supervisors, were
statutory supervisors the unilateral changes regarding them
would nonetheless be unlawful. In this regard, we note that
the parties have agreed to include all nursing supervisors in
the unit, and they were covered by a contract at the time of the
changes here. We have held that when parties to a collective-
bargaining relationship, as here, have voluntarily agreed to in-
clude supervisors in a unit, the Board will order the applica-
tion of the terms of the collective-bargaining agreement to
those supervisors. Union Plaza Hotel & Casino, 296 NLRB
918 fn. 4 (1989), enfd. sub nom. E.G. & H. Inc. v. NLRB, 949
F.2d 276 (9th Cir. 1991), citing Arizona Electric Power Co-
operative, 250 NLRB 1132 (1980).
We perceive no basis for departing from this rule here,
despite the contract’s recognition clause which excludes
“supervisors within the meaning of the National Labor Re-
lations Act.” Although the Respondent could not be com-
pelled to recognize the Union as the representative of a
unit containing supervisors, the Respondent certainly
could, and did, agree to a contract that covered certain in-
dividuals found to be supervisors. NLRB v. News Syndi-
cate Co., 365 U.S. 695, 699 fn. 2 (1961).13
However, I find these cases distinguishable. In each case the
employees, for whom the respondent’s unilateral action in
withdrawing recognition from a union during the terms of the
collective-bargaining agreement, were “knowingly and volun-
tarily negotiated” into the bargaining unit in the agreement.
The patient care coordinators have been traditionally ex-
cluded from the unit of nurses found to be appropriate between
the parties because they were believed to be supervisors. I find
nothing in the record to dispel this. Therefore, I find that the

12 In Carolina Telephone Co., supra, the Board found that steno-
graphic clerks had been included in the unit of the collective-bargaining
agreement and the respondent, having withdrawn recognition in mid-
term from the Union regarding these employees violated Sec. 8(a)(1)
and (5) of the Act, even if the clerks were truly confidential employees
excludable by Board policy.
13 Also see Bozeman Deaconess Foundation, 322 NLRB 1107
(1997); F.G. Lieb Construction Co., 318 NLRB 914, 916 (1995); Tex-
aco Port Arthur Employees Federal Credit Union, 315 NLRB 828, 830
(1994).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1142
patient care coordinators should be excluded from the unit of
nurses as supervisors within the meaning Section 2(11) of the
Act, as provided for in the language of the appropriate unit.
Employee Health RNs
The Respondent contends that the employee health nurses
should be excluded from the unit of nurses because they were
“excluded historically,” their inclusion would give rise to a
“conflict of interest” with nurses in the established unit, and
they do not have a community of interest with other nurses in
the unit. Clinical Director of Employee Health Service Sarah
Hassert testified that the employee health service is responsible
for seeing that the Hospital is in compliance with regulatory
mandates of administrative agencies. Hassert testified that
since 1996, employee health RNs have given preemployment
drug and tuberculosis tests to applicants for positions at the
Hospital. The Hospital or regulatory agencies have determined
the acceptable levels for these tests. Staff RNs in the emer-
gency room may also give drug tests. Employee health RNs
may communicate the results of tuberculosis tests to depart-
ment heads in the Hospital. Moreover, the Hospital has issued
general guidelines that determine whether an employee may
return to work after being out for medical reasons. The em-
ployee health nurses using these guidelines assess the health of
an employee and determine whether they can return to work.
The employee health RNs may also refer the matter to the em-
ployee health practitioner or the doctor.14
In discussion with the Union the Respondent also asserted
that the employee health RNs are confidential employees. The
Respondent therefore has the burden of proof on this issue.
Crest Mark Packing Co., 283 NLRB 999 (1987). The Board
has held that the only employees to be excluded from a collec-
tive-bargaining unit due to confidentiality are those “that assist
and act in a confidential capacity to persons who formulate,
determine, and effectuate management policies in the field of
labor relations.” Lincoln Park Nursing Home, 318 NLRB
1160, 1164 (1995); Bakersfield Californian, 316 NLRB 1211
(1995); and B.F. Goodrich Co., 115 NLRB 722 (1956). The
Board uses the “labor nexus” test which was approved by the
Supreme Court in NLRB v. Hendricks County Rural Electric
Membership Corp., 545 U.S. 170 (1981). The employee health
RNs access to medical or personnel records is insufficient to
establish that they are confidential employees. Milwaukee
Children’s Hospital Assn., 255 NLRB 1009, 1014 (1981);
Ladish Co., 178 NLRB 90 (1969); Hampton Roads Maritime
Assn., 178 NLRB 263 (1969); and RCA Communications, 154
NLRB 34, 37 (1965).15 The employee health nurses are indis-

14 The Respondent states in its brief that, “It is evident from the fore-
going that the employee health nurses do not share a community of
interest with employees in the unit.” The community of interest issue is
generally discussed in another section of this decision. The Respondent
continues that “Furthermore they have been historically excluded from
the unit and their inclusion now, without benefit of an election, would
deprive them of their Section 7 rights. They are not engaged in patient
care, they have responsibilities closely aligned with management, and
inasmuch as they must determine whether an employee is fit for duty,
their inclusion would give rise to a disturbing conflict of interest.”
15 Also see S.S. Joachim & Ann Residence, 314 NLRB 1191 (1994);
Lincoln Park Nursing Home, 318 NLRB 1160 (1975).
tinguishable from any other nurse at the Hospital who would
have access to the medical records of any RN who became a
patient of the Hospital or who was tested for any reason, in-
cluding drug tests. The Respondent has failed to sustain its
burden of showing that the employee health RNs are truly con-
fidential in the sense that they assist and act in a confidential
capacity to persons who formulate, determine, and affectuate
management policies with regard to labor relations. Ladish
Co., supra; Hampton Road Maritime Assn., supra.
Nor do the employee health RNs appear to be managerial
employees. They do not formulate and effectuate management
policy or exercise discretion independent of the Respondent’s
established policies and rules. Milwaukee Children’s Hospital
Assn., 255 NLRB at 1014. The role of the Employee Health
RNs with respect to decisions concerning employees is either to
communicate medical information or to apply preexisting crite-
ria.
I therefore find and conclude that the Respondent has failed
to establish that the evidence herein warrants the exclusion of
the employee health RNs from the unit of nurses and based on
the record as a whole, the employee health RNs are primarily
nurses who should be included in the appropriate unit of regis-
tered nurses.
Cardiac Catheterization Laboratory RNs
The Respondent takes the position that the cardiac catheteri-
zation RNs are technical employees who should be excluded
from the unit. The Board defines technical employees as those
employees who do not meet the strict requirements of the term
“professional employees” as defined in the Act, but whose
work is of a technical nature, involving the use of independent
judgment and requiring the exercise of specialized training
usually acquired in colleges or technical school, or through
special courses. E.g., Folger Coffee Co., 250 NLRB 1 (1980).
The Board considers RNs to be professional employees, not
technical employees. See Board’s Rules and Regulations, Rule
103.30; Health Care Rulemaking, 284 NLRB 1515; Southern
Maryland Hospital Center, 274 NLRB 1470 (1985). Thus, the
Respondent has failed to establish the exclusion of the cathe-
terization laboratory nurses on this basis.
Case Managers
The Respondent asserts that case managers have historically
been excluded from the unit, they are among the functional
exclusions specified in the bargaining unit’s description as
(utilization review employees), and do not share a community
of interest with those nurses included in the bargaining unit.
Susan Sorge, manager of the case management department
testified that the nurses who performed utilization review prior
to 1998 reviewed medical records to determine whether the
Hospital received the appropriate reimbursement from insur-
ance companies for patient care,16 Sorge stated that in about

16 Sorge testified:
A Utilization Review Nurse reviews the medical documenta-
tion and the medical records throughout the Hospital. They col-
laborate that information to the insurance companies on a daily
basis to make sure that we are getting the appropriate financial re-
ST. BARNABAS MEDICAL CENTER 1143
1998, the Hospital created the position of case manager by
merging and cross-training RNs who performed utilization
review functions with RNs who planned patient’s discharges
and postdischarge activities.17 Sorge described the case man-
agers’ duties as “assessing patient care throughout the patient’s
hospitalization, planning a patient’s discharge and to meet a
patient’s postdischarge needs, such as providing for home
health care.”18 While the Hospital requires case managers to be
RNs, and the evidence indicates that utilization review is but
another function in a set of tasks performed by the current case
managers, it is undisputed that case managers do not perform
patient care service per se. The evidence as to current case
manager duties also supports the conclusion that case managers
are substantially dissimilar from the former utilization review
employees.
The Board in Ralph K. Davies Medical Center, 256 NLRB
1113, 1117 (1981),19 stated:
More importantly, the utilization review coordinators are not
involved with direct patient care. Rather, they perform the
purely administrative function of determining the most effec-
tive and efficient use of the Hospital’s facilities by monitoring
patient care, primarily through patient records, to assess
whether it falls within government and insurance company
guidelines. . . . Accordingly, we conclude that the utilization
review coordinators do not share a sufficient community of
interest with the registered nurses and we shall exclude them
from the unit herein.
I find these cases distinguishable. While the Board has ex-
cluded utilization review RNs from units of nurses because they
are not involved in direct patient care and perform purely ad-
ministrative functions, when the Respondent created the Case
Manager position by merging and cross-training RNs who per-
formed utilization review functions with RNs who planned
patient’s discharges and postdischarge activities, based on the
case manager’s new duties, with implied substantial interaction
with other RNs to accomplish that position and the requirement
that they be RNs, they could no longer fall purely under the
classification of “utilization review employee.”

imbursement to (sic) the insurance companies and that the patient
is at the appropriate level of care.
It is undisputed that since the initial collective bargaining
contract between the parties “utilization review employees” have
been excluded from the bargaining unit.
17 After the merger, there were approximately 12 case managers.
There are presently 31 case managers at the Hospital.
18 Sorge testified:
A Case Manager is really a collaborative process of assessing,
evaluating, and implementing the patient’s care throughout the
continuum of their hospitalization and post-discharge needs. So
they will assess a patient at the beginning of the patient’s hospi-
talization. If needed, relay all critical information to the payer . . .
and establish a plan–a working disposition of discharge plan for
the patient. If the patient should need any kind of post-discharge–
planning needs, they would be the facilitator of those plans.
19 Also see Addison-Gilbert Hospital, 253 NLRB 1010 (1981). In
St. James Hospital of Newark, 248 NLRB 1045, 1046 (1980) (utiliza-
tion review coordinators included in bargaining unit of professional
employees).
Therefore, from the evidence herein I find and conclude that
the RNs working as case managers should be included within
the scope of the bargaining agreement.
Radiology Nurses
The Hospital’s department of radiology employs six RNs.
One nurse, Myrna Lao, is a member of the bargaining unit.20
The appropriate unit set forth in the collective-bargaining
agreement between the parties excludes from the unit “supervi-
sors, including head nurses and radiology nurse specialists, as
defined in the Act.” While there was evidence that there was
one supervisor of the RNs in the radiology department entitled,
“Clinical Nurse Specialist” but the record is unclear as to
whether “Clinical Nurse Specialist” was synonymous with
“Radiology Nurse Specialist.”
However, the evidence was unrebutted that all of the RNs in
the radiology department perform essentially the same work,
and that the Respondent applies the contract to one RN, Myrna
Lao, but not the other RNs therein. The Respondent has failed
to carry its burden of showing that the radiology RNs should be
excluded from the bargaining unit.
I therefore find and conclude that the radiology RNs should
be included in the unit of nurses, except for the “Clinical Nurse
Specialist” as a supervisor.21
Pediatric Oncology Outpatient Clinic RNs
The Respondent maintains that the RNs in the Pediatric On-
cology Outpatient Clinic (Valery Clinic) should be excluded
from the bargaining unit. Advanced Practice Nurse Manager
Jamie Cappuccino testified that when the Valery Clinic opened
in 1997, as advanced practice nurse she had “indirect” supervi-
sion over the patient care coordinators in the Clinic. However,
Cappuccino’s job description as advanced practice nurse does
not bear this out, indicating instead that she had at that time no
responsibility to supervise anyone. Moreover, even as Cappuc-
cino was given the added title of nurse manager in about 1999,
the evidence shows that another employee, Kathleen Nunn, not
Cappuccino, is the PCC supervisor in the Valery Clinic22 Cap-
puccino stated that she has the authority to hire employees with
the “final approval from my director,” and that her duties as
nurse manager encompass responsibilities “for administrative
duties. . . for supervising the Nursing Staff; for getting a budget
together for the Valery Center; for making assignments; for just
being supportive to the staff.” She also performs evaluations of
RNs in the Valery Clinic.23 I believe that there is sufficient

20 When Lao transferred into the department of radiology from a
bargaining unit classification, she was permitted by her immediate
supervisor, at her election, to remain in the bargaining unit.
21 It is interesting to note that during negotiations between the parties
regarding the radiology nurses the Respondent offered to include them
in the unit as part of a package deal on all the disputed positions if
agreement was reached on them all, and if the Union would withdraw a
part of a pending Board case. The Hospital also agreed to include the
cardiac catheterization laboratory nurses as well. The Union rejected
this.
22 However, Cappuccino disputed that Nunn supervises the PCCs or
any other RNs at the Valery Center.
23 Prior to December 24, 1998, while Cappuccino testified that she
was a supervisor as advanced practice nurse, she never hired anyone;
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1144
evidence in the record to find that Cappuccino is a supervisor
within the meaning of Section 2(11) of the Act.
The Respondent would thus exclude Advanced Practice
Nurse/Nurse Manager Jamie Cappuccino as a supervisory RN;
the patient care coordinator, as discussed previously generally
under patient care coordinators nurses; the sickle cell coordina-
tor under the nursing coordinator unit exclusion, whose respon-
sibility is to educate sickle cell patients, running support groups
associated with such patients and is responsible for data man-
agement with respect to the Children’s Oncology Group
(COG); the nurse clinicians who work in the inpatient unit for
children and are responsible for the education of their families
and staff and community education and make rounds with
physicans attending patients. The Respondent asserts that the
two office practice RNs have been unrepresented since the
inception of the Valery Clinic and the Union is “two late in
seeking their inclusion over a period of one or two collective
bargaining agreements.”24
Therefore, I would include all the Pediatric Oncology Outpa-
tient Clinic RNs in the unit of nurses except for the advanced
practice nurse/manager who should be excluded as a supervisor
within the meaning of Section 2(11) of the Act.
The 10(b) Period
Section 10(b) of the Act provides, “That no complaint shall
issue based on any unfair labor practice occurring more than 6
months prior to the filing of the charge with the Board and the
service of a copy thereof upon the person against whom such
change is made.” Dunn & Bradstreet Software Services, 317
NLRB 84 (1995), affd. 79 F.3d 1238 (1st Cir. 1996). Section
10(b) is a statute of limitation and is not jurisdictional in nature.
It is an affirmative defense which must be pleaded and if not
timely raised is waived. Federal Management Co., 264 NLRB
107 (1987). Also, the burden of proving such an affirmative
defense rests squarely on the party asserting it. Kelly’s Private
Car Services, 289 NLRB 30 (1988), 919 F.3d 839 (2d Cir.
1990); Chinese American Planning Council, Inc., 307 NLRB
410 (1992). Moreover, it is firmly established that the 10(b)
period commences when a party has clear and unequivocal
notice of the violation of the Act. Mine Workers District 17,
315 NLRB 1052 (1994); Leach Corp., 312 NLRB 990, 991
(1993), enf. 54 F.3d 802 (D.C. Cir. 1995); A&L Underground,
302 NLRB 467, 468 (1991), or where a party in the exercise of
reasonable diligence should have become aware that the Act
had been violated. Carrier Corp., 319 NLRB 184 (1995);
Moeller Bros. Body Shop, 306 NLRB 191, 192–193 (1992);
and Oregon Steel Mills, 291 NLRB 185, 192 (1988), cert. de-

never transferred, suspended, laid off, recalled, promoted, fired, re-
warded, or disciplined any nurse. She however, stated that she did
“informally” discipline employees.
24 The complaint includes pediatric clinic nurse as a classification for
which bargaining is sought. The Union’s executive director, Sondra
Clark, testified that the Union was unclear as to the Pediatric Clinic, “I
think this was an overstatement.” Clark also testified that she could not
recall that there were any nonsupervisory RNs working in the Pediatric
Clinic and that the Union’s focus was on the Pediatric Oncology Outpa-
tient Clinic.
nied sub nom. Gilmore Steel Corp. v. NLRB, 496 U.S. 925
(1990).
In applying these principles to the instant case, it is the Re-
spondent who has the burden of demonstrating that the Union
obtained clear and unequivocal notice that the Respondent was
excluding RNs in the disputed categories from the bargaining
unit and refusing to recognize the Union as the bargaining rep-
resentative for these employees. The Board has held that
“those whose delay in filing as a consequence of conflicting
signals or otherwise ambiguous conduct by the other party” are
not barred by the Board’s requirement that a party promptly file
a contract repudiation charge. A&L Underground, 302 NLRB
467, 469 (1991).25 Where an employer is applying a contract to
some but not all unit employees, and has indicated interest in
resolving the matter, the 10(b) period does not run until the
Employer provides clear and unequivocal notice that it is not
going to resolve the matter. Sterling Nursing Home; 316
NLRB 413, 416 (1995).
In this case, the Union never received clear and unequivocal
notice prior to the 10(b) period that the Hospital rejected the
Union’s demand that the Hospital recognize the Union as the
representative of the disputed RNs. Rather, the Union filed the
instant unfair labor practice charge when, after a series of meet-
ings between the parties in which they discussed the Union’s
demand, the Hospital eventually failed to respond to the Un-
ion’s request to resume meetings. At the time the Union filed
its charge, the Hospital had failed to respond in an unequivocal
manner to the Union’s amended demand for recognition, which
the Union presented to the Hospital at a meeting in early June
1998. At this meeting the Union added the case managers, the
pediatric oncology nurse, and the pediatric clinic nurse to its
recognition demand having just learned that RNs were working
in these titles. The Hospital responded by requesting a “fresh
list” of the RNs for whom the Union was demanding recogni-
tion. However, the Hospital never responded to the demand for
recognition by the Union for the case managers, pediatric on-
cology clinic, and pediatric clinic nurses leaving this matter as a
whole unresolved. The Union sent its revised recognition de-
mand to the Hospital on June 3, 1998, immediately after this
meeting. Thereafter, the Union left messages for the Hospital’s
representative during July through October 1998 seeking to
resume meeting.26 But the Hospital never responded to the
union messages, nor contacted the Union to schedule a meeting.
Moreover, the matter remained ambiguous after June 1998
because the Hospital conditioned resolution of the recognition
demand as to any disputed RN, contingent on agreement as to
all of the disputed RN positions, although its position on some

25 Also see Waste Management of Utah, 310 NLRB 883, 886 (1993);
Stamford Realty Assn., 306 NLRB 1061, 1065 (1992); Logan County
Airport Contractors, 305 NLRB 854 (1991); and Christopher Street
Corp., 286 NLRB 253 (1987), enfd. 926 F.2d 1215 (D.C. Cir. 1991).
26 A review of the chronology of the case before June 3, 1998, shows
that the Hospital’s practice was not to respond to a union demand for
recognition pertaining to disputed RNs until it investigated the matter.
Also, it was not unreasonable for the Union to wait this long. The facts
here show that the Hospital had in the past taken many months to
schedule a meeting with the Union on its successive recognition de-
mands.
ST. BARNABAS MEDICAL CENTER 1145
of the disputed RNs such as the exclusion of the PCCs re-
mained adament. Additionally, the mere fact that the disputed
RNs work in the Hospital is insufficient to put the Union on
notice that the Hospital employed these nurses but excluded
them from the coverage of the collective-bargaining agree-
ment.27 Here, the size of the Hospital, with 600 plus beds and
850 plus nurses working in approximately 36 patient care units,
precluded constructive notice to the Union that the Hospital
clearly employed some of the disputed nurses.28
Regarding the Respondent’s assertion that the Union had un-
equivocal notice that the Respondent’s position was to exclude
the PCCs from the unit. However, regardless of the Respon-
dent’s position it was required to bargain over the issue of as-
signing them unit work. A refusal to bargain is not ripe when
an employer has merely failed to respond to a union demand for
bargaining, Waste Management of Utah, 310 NLRB at 886;
Stanford Realty Associates, 306 NLRB at 1065. The Respon-
dent had told the Union that the resolution of the issue of
whether these nurses could perform unit work was tied to the
Union’s demand for information concerning the PCCs. The
Union’s Board case involving its demand for such information
remained pending prior to and during the 10(b) period. There-
fore, when the Union filed its charge insofar as it concerns the
PCCs, the 10(b) period had not begun.
Also, a party is not required to file its charge based on mere
suspicion. R.G. Burns Electric, 326 NLRB 440 (1998). Equi-
table considerations allow permitting a party to wait to file its
charge until it has acquired sufficient information to support the
charge. Barnard Engineering Co., 295 NLRB 226, 250–251
(1989). Moreover, Board policy is to encourage parties to at-
tempt settlement of their disputes within the framework of col-
lective bargaining. Here, the Union attempted to resolve the
issues raised by its demand for recognition of the disputed RNs
by requesting information and discussing the demand with the

27 See AMCAR Div., ACF Industries, 234 NLRB 1063 (1978), enfd.
596 F.2d 1344 (8th Cir. 1979).
28 The Union filed the unfair labor practice charge on December 24,
1998. As to the case managers, the pediatric oncology clinic staff
nurses, the pediatric oncology clinic office practice nurse, the pediatric
oncology clinic sickle cell/DOG data manager coordinator, and the
pediatric clinic nurse, the Hospital provided no evidence that it hired
any of these RNs more than 6 months before the Union filed its charge.
Accordingly, the 10(b) defense is inapplicable to these RNs.
The Respondent states that the subject of the case manager, pediatric
oncology outpatient nurse, and the pediatric clinic nurse was first raised
at the June 2, 1998 meeting between the Union and Marino. At that
time, the case manager position had just become functional. The pedi-
atric oncology outpatient nurses had been working in the Valery Clinic
since it opened in approximately 1996. None of the RNs in these posi-
tions were included in the bargaining unit when the Union made its
recognition demand for them on June 2, 1998. The Hospital took the
position that they should be excluded. The Respondent in its brief
posits from this “It is clear from the meeting of June 2, 1998, that these
titles would continue to be excluded from the unit, and consequently
the 6 month-limitations period began to run from that date, meaning
that the charge filed and served in late December was untimely.”
I do not agree. At this meeting Director Marino asked for additional
information from the Union indicating that further discussion on the
issue of the disputed RNs might possibly ensue regardless of the Hospi-
tal’s current position on these RNs.
Hospital. The Union promptly notified the Hospital of its sus-
picions and requested information from the Hospital that
“would have given [it] a clearer picture of the alleged noncom-
pliance.” Sterling Nursing Home, 316 NLRB at 416. As evi-
denced in the record, while the Respondent failed to provide the
Union with the information it requested, it encouraged the Un-
ion to reach a settlement of the issues raised in its recognition
demand.
Even if the Union is not entitled to a remedy from the date
the Respondent began excluding the disputed RNs, the Union is
entitled to a remedy for the 6 months prior to filing its charge.
The Respondent’s failure to recognize the Union as the repre-
sentative of the disputed RNs is a series of separate and distinct
violations. During the term of a collective-bargaining agree-
ment, a unilateral change in a contractual term can result in “a
separate and distinct violation of the Act” each time the af-
fected term is scheduled to occur. Farmingdale Iron Works,
249 NLRB 98 (1980), enfd. 666 F.2d 910 (2d Cir. 1981), citing
Tide Water Associated Oil Co., 85 NLRB 1096 (1949). In
Chemung Contracting Corp. 291 NLRB 773 (1988), the Board
held that the separate and distinct violation doctrine could only
be applied to a unilateral change made during the term of an
existing collective bargaining agreement. See also Vallow
Floor Coverings, 335 NLRB 20 (2001); A&L Underground,
302 NLRB 467 (1991).
In Moeller Bros. Body Shop, 306 NLRB at 193, while the
Board concluded that the charging party, a union, failed to ex-
ercise “reasonable diligence” in discovering the respondent’s
misconduct and therefore Section 10(b) of the Act bars any
violation of the Act, the Board nevertheless granted a remedy
for the respondent’s failure to apply the contract to all members
of the unit during the 10(b) period. Thus, a failure to apply a
contract to members of a bargaining unit is a repetitive viola-
tion. In the instant case, the Union filed its charge within the
term of the parties 1996–1999 bargaining contract. Moeller
Bros. Body Shop, supra; Farmingdale Iron Works, supra;
Schora Stern Food Corp., 227 NLRB 1650, 1654 (1977).
Should a violation be found, the Union would be entitled to, at
a minimum, a remedy for the 6 months prior to the date it filed
its charge. Vallow Floor Coverings, supra; Moeller Bros. Body
Shop, supra; A&L Underground, supra; Farmingdale Iron
Works, supra; Schorr Stern Food Corp., supra.
The Respondent’s Other Defenses
Unit Clarification
Unit clarification is appropriate for resolving ambiguities
concerning the unit placement of individuals who come within
a newly established classification of disputed unit placement or,
within an existing classification which has undergone recent,
substantial changes in the duties and responsibilities of the
employees in it so as to create a real doubt as to whether the
individuals in such classification continue to fall within the
category—excluded or included—that they occupied in the
past. Union Electric Co., 217 NLRB 666, 667 (1975).29 Clari-

29 In cases involving employees hired into newly created classifica-
tions not plainly included in or excluded from the established unit,
disputes concerning the unit status of employees in the new classifica-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1146
fication is not appropriate, however, for upsetting an agreement
of a union and employer or an established practice of such par-
ties concerning the unit placement of various individuals, “even
if . . . the practice has become established by acquiesence and
not express consent.” Id. Also see Plough, Inc., 203 NLRB
818 (1973), and cases cited therein. Here, the unit definition is
clear and based on the positions of the parties, includes or ex-
cludes the disputed nurses. Gourmet Award Foods, Northeast,
supra. Thus, unit clarification is, during the term of the con-
tract between the Hospital and the Union, not the appropriate
vehicle for resolving this dispute.
Community of Interest
The Board in Kendall College, 228 NLRB 1083, 1084
(1977), held that an employer may not defend against an 8(a)(5)
charge concerning removal of unit employees from a bargain-
ing unit by asserting that the certified unit is inappropriate.
Thus, it would appear that the contentions of the Respondent in
this case that some of the disputed RNs lack a “community of
interest” with the represented RNs is not viable in this unfair
labor practice case. Moreover, a party cannot litigate issues
that could have been litigated in an underlying representation
hearing in a case involving a refusal to bargain allegation Pitts-
burgh Plate Glass v. NLRB, 313 U.S. 146, 162 (1941); Board’s
Rules and Regulations, Rule 102.67(f). Assuming arguendo
that community of interest could be litigated here, the concept
that RNs have a community of interest with other RNs has been
established by the rules authorizing an RN unit. See Board’s
Rules and Regulations, Rule 103.30; Health Care Rulemaking,
284 NLRB 1515 (1987).30
For example, the Respondent asserted that the cardiac cathe-
terization laboratory RNs lacked a community of interest with
the staff RNs. Frank Soldo Clinic Director of the Cardiac
Catheter Laboratory testified that the cardiac catheterization
RNs use more sophisticated equipment than used by other RNs
in the Hospital, “in patient care units.”31 However, RN Eric
Polo, a witness for the General Counsel, testified in detail re-
garding the work performed by RNs in the intensive care unit,

tions, are resolved by timely unit clarification proceedings applying an
accretion analysis. Gourmet Award Foods, Northeast, supra. The
Board in the accretion analysis examines community of interest factors
to determine whether the employees at issue may constitute a separate
appropriate unit or constitute an accretion to the existing bargaining
unit. Towne Ford Sales, 270 NLRB 311 (1984).
“Once it is established that a new classification is performing the
same basic functions as a unit classification historically had performed,
the new classification is properly viewed as remaining in the unit rather
than being added to the unit by accretion. Accordingly, an accretion
analysis in these circumstances is inapplicable.” Premcor, Inc., 333
NLRB 1365 (2001).
30 In Salem Hospital, 333 NLRB 560 (2001), the Board found it ap-
propriate to put RNs working as case managers in a unit with RNs who
provide patient care. Such a unit was found appropriate despite the fact
that the case managers did not provide patient care, as long as the Em-
ployer requires case managers to be RNs. This is also true in the situa-
tion in this case as regards case managers at St. Barnabas Hospital.
Also see, John P. Scripps Newspaper Corp., 329 NLRB 854 (1999).
31 However, on cross-examination, Soldo conceded that he was un-
familiar with other equipment used in the Hospital outside the cardiac
catheterization Laboratory.
coronary care unit, neurosurgical intensive care unit, and emer-
gency room which demonstrated that the work performed by
RNs in those units was just as technical as any work performed
by RNs in the cardiac catheterization laboratory.32 Moreover,
RNs in these units assist the doctors in administering catheters
similar to those used in the cardiac catheterization laboratory
where the role of RNs is also to assist in the use of catheters.33
Soldo stated that RNs in the cardiac catheterization laboratory
undergo a 3-month orientation period overseen by an RN acting
as preceptor. But this is not unique to the cardiac catheteriza-
tion laboratory. Other RNs in other units may undergo precep-
torships, i.e., the operating room. Cardiac catheterization labo-
ratory RNs wear special badges to monitor radiation which they
may be exposed to, but RNs in the operating room also wear
such badges.
Having found that the cardiac catheterization laboratory RNs
should not be excluded from the unit on the basis that they are
technical employees, and, assuming arguendo, that the Hospi-
tals can litigate community of interest issues in this case, and
finding that the Hospital has failed to carry its burden to show
that the interests of the cardiac catheterization RNs is suffi-
ciently separate to justify excluding them from the unit of RNs,
I find and conclude that the cardiac catheterization laboratory
RNs should be included in the bargaining unit. John P. Scripps
Newspaper Corp., supra.
The Respondent alleges that there is no contractual or statu-
tory basis for including the disputed titles (some 80 RNs) in the
bargaining unit, absent self-determination. None of the em-
ployees who work in these titles have ever been represented by
any union and some have existed outside the bargaining unit for
up to 25 years. Four of the disputed titles existed before the
Union was certified and before it negotiated the first of its four
bargaining contracts with the Hospital. It appears that the Un-
ion never questioned the exclusion of any of these titles in any
of the contract negotiations.34 The Respondent asserts that the
basis for including/excluding certain RNs as agreed between
the parties was “whether they provided direct patient care.”35
The Hospital states that, thus, since the disputed titles of RNs
are not involved in direct patient care “in the traditional sense
of bed-side nursing, the ‘hands-on work’ of responding to pa-
tient needs,” they should not be included in the unit of RNs.

32 Polo has worked in the operating room and acute care units, in-
cluding the intensive care unit, coronary care unit, neurosurgical inten-
sive care unit and emergency room of St. Barnabas Hospital.
33 Catheters are not unique to the cardiac catheterization laboratory.
RNs in the operating room and in the intensive care unit assist in using
catheters on a daily basis. RNs do not insert the catheters but assist the
physicians who do so.
34 It is questionable whether the Union even knew that nurses were
filling some of these positions at the time or even that such positions
now existed, i.e., case managers nurses.
35 Direct patient care means, “actual patient care work, direct patient
care, hands-on work. Whatever the patient’s needs were.” Whether the
unit was limited solely to this is unclear from the record as to just what
the actual definition of “direct patient care, is, i.e., Cardiac Catheter
Laboratory nurses and Radiology Laboratory nurses duties.”
“[R]egistered nurses are unique in that their profession requires con-
tinuous patient interaction.” The Child’s Hospital, 310 NLRB 560, 562
(1993).
ST. BARNABAS MEDICAL CENTER 1147
The Respondent lists the employee health nurse and case
manager’s as not interacting with any patients in their work, or
performing work which qualifies as direct patient care. Ac-
cording to the Respondent, the radiology laboratory, and car-
diac catheterization Laboratory nurses are involved in testing
and diagnostic procedures. While the Hospital maintains that,
“Much of that type of work can be, and is, done outside of a
hospital setting,” yet it would appear that these RN positions
involve some nursing duties and direct care. The Respondent
also states that the pediatric outpatient oncology nurses spend
most of their time in education efforts with staff members, pa-
tient’s families, and the community, but there must be some
patient care involved. However, the unit description clearly
includes all RNs except for those explicitly listed as excluded
therein.
As regards the patient care coordinators, based on the evi-
dence I found them to be supervisors within the meaning of
Section 2(11) of the Act and these RNs should therefore be
excluded from the unit.
The Respondent citing United Parcel Service, 303 NLRB
326 (1991), as applicable to the instant case, argues that “the
Union cannot evade the Board’s longstanding principle that
where employees, who are now alleged to have common inter-
ests with unit employees, have nonetheless been excluded from
that unit, and where one or more negotiated contracts has failed
to address the situation, the union has only itself to blame.”
This case is distinguishable for the reasons set forth above in
the section of this decision involving the Respondent’s affirma-
tive defenses.
From all of the above and in reviewing the language of the
appropriate unit as set forth in the applicable collective-
bargaining agreement between the Hospital and the Union, I
find and conclude that the Respondent has failed to carry its
burden of establishing that the following disputed RN positions
should be excluded from the unit of nurses: Employee health
nurse RNs, radiology department RNs, cardiac catheterization
laboratory RNs, case manager, RNs, pediatric oncology outpa-
tient clinic (Valery Clinic), and the pediatric clinic RN. These
nursing positions should be included in the unit of nurses ex-
cluding any supervisors within the meaning of Section 2(11) of
the Act. I also find that the Respondent has, established that
the disputed position of patient care coordinator (PCCs) are
supervisory RN positions within the meaning of Section 2(11)
of the Act and should be excluded from the unit as such.
Accordingly, I find that by failing and refusing to recognize
the Union as the collective-bargaining representative of the
RNs in the classifications listed above, the Respondent has
failed and refused to bargain collectively with the exclusive
collective-bargaining representative of its employees within the
meaning of Section 8(d) of the Act in violation of Section
8(a)(1) and (5) of the Act.
IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES ON COMMERCE
The activities of the Respondent set forth in section III,
above, found to constitute unfair labor practices occurring in
connection with the operation of the Respondent described in
section I, above, have a close, intimate, and substantial relation-
ship to trade, traffic, and commerce among the several States
and tend to lead to labor disputes burdening and obstructing
commerce and the free flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to effec-
tuate the policies of the Act. The Respondent shall be ordered
to honor the terms of the current collective-bargaining agree-
ment with the Union and to apply the terms of the agreement to
the disputed RNs until the contract’s expiration. The Respon-
dent shall also be ordered to make whole these RNs for any
losses sustained by them by virtue of the failure to apply the
applicable bargaining agreements to them and make the union
benefit funds whole for moneys owed to them under these
agreements, and make the Union whole for any loss of dues as
a result of the failure or delay in giving effect to any dues-
checkoff authorizations by any of these RNs. 36
Because of the nature of the unfair labor practices found
here, and in order to make effective the interdependent guaran-
tees of Section 7 of the Act, I recommend that the Respondent
be ordered to refrain from in any like or related manner abridg-
ing any of the rights guaranteed employees by Section 7 of the
Act. The Respondent should also be required to post the cus-
tomary notice.
CONCLUSIONS OF LAW
1. Saint Barnabas Medical Center 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 Sec-
tion 2(14) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The following employees of the Respondent constitute a
unit appropriate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act:
All full-time and regular part-time nurses and graduate nurses,
including charge nurses and IV therapists, employed by the
Employer at its Livingston, New Jersey facility, but excluding
all office clerical employees, graduate practical nurses and li-
censed practical nurses, infection control employees, utiliza-
tion review employees, home health care coordinators, in-
service instructors, nursing instructors, computer coordinators,
nutrition specialists, anesthesiology coordinators, other pro-
fessional and non-professional employees, other technical

36 The make-whole remedy shall be computed in accordance with
Board law. Wages owed shall be computed in accordance with Ogle
Protection Service, 183 NLRB 682 (1970), with interest computed as in
New Horizons for the Retarded, 283 NLRB 1173 (1987). See also
Florida Steel Corp., 231 NLRB 651 (1977), and Isis Plumbing Co., 138
NLRB 716 (1962). Fringe benefit payments shall be computed in
accordance with Merryweather Optical Co., 240 NLRB 1213, 1216 fn.
7 (1979); and Kraft Plumbing & Heating, 252 NLRB 891 fn. 2 (1980),
enfd. mem. 661 F.2d 940 (9th Cir. 1981), and the funds are to be made
whole under Stone Boat Yard, 264 NLRB 81 (1982), enfd. 715 F.2d
441 (9th Cir. 1983), cert. denied 466 U.S. 937 (1984). Union dues are
to be computed in accordance with Parkview Furniture Mfg. Co., 284
NLRB 947, 974 (1987).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1148
employees, service and maintenance employees, engineers,
managerial employees, nursing coordinators, temporary em-
ployees, guards and supervisors, including head nurses and
radiology nurse specialists, as defined in the Act, and all other
employees.
4. On or about August 12, 1991, the Union was certified as
the exclusive collective-bargaining representative of the Unit.
Since on or about August 12, 1991, the Union has been the
designated exclusive collective-bargaining representative of the
Unit and has been recognized as such representative by the
Respondent. This recognition has been embodied in successive
collective-bargaining agreements, the most recent of which is
effective from November 2, 1999, to November 1, 2002.
5. The disputed categories in which the Respondent employs
registered nurses are patient care coordinator (PCC), radiology
nurse, employee health nurse, cardiac catheterization laboratory
nurse, case manager, pediatric oncology outpatient nurse, and
pediatric clinic nurse.
6. By failing to include the registered nurses in the follow-
ing disputed categories, less any supervisory employees therein
within the meaning of Section 2(11) of the Act, the radiology
department nurses, employee health nurses, cardiac catheteriza-
tion laboratory nurses, case manager nurses, pediatric outpa-
tient oncology nurses, and pediatric clinic nurses, in the unit of
RNs represented by the Union and applying the contract terms
of the collective-bargaining agreement between the parties to
these employees, and by refusing to recognize the Union as the
bargaining representative of these employees, the Respondent
violated Section 8(a)(1) and (5) of the Act.
7. The Patient Care Coordinator Nurses are supervisors
within the meaning of Section 2(11) of the Act and therefore
should be excluded from the unit of nurses.
8. The above violations constitute unfair labor practices
within the meaning of the Act.
[Recommended Order omitted from publication.]