St. Mary's Hospital of Blue Springs

National Labor Relations Board - Board Decisions

Mar 31, 2006

346 N.L.R.B. 776 (N.L.R.B. 2006)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
346 NLRB No. 76
776
St. Mary’s Hospital of Blue Springs and Nurses Alli-
ance/Service Employees International Union,
AFL–CIO. Case 17–CA–22039
March 31, 2006
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On October 16, 2003, Administrative Law Judge Ge-
rald A. Wacknov issued the attached decision. The
Charging Party (the Union) filed exceptions and a sup-
porting brief, and the Respondent filed an answering
brief.
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,1 and conclusions and
to adopt the recommended Order.
1. We agree with the judge, essentially for the reasons
set out in his decision, that the Respondent complied
with its obligation to bargain with the Union over the
changes in health coverage for unit employees that it
implemented on January 1, 2003. The Respondent’s
implementation of those changes on that date was per-
missible even though the parties had not reached an
overall impasse, under the authority of Stone Container,
313 NLRB 336 (1993), and its progeny.2 See, e.g.,
Saint-Gobain Abrasives, 343 NLRB 542 (2004).

1 The Charging Party 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 preponderance
of all the relevant evidence convinces us that they are incorrect. Stan-
dard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d
Cir. 1951). We have carefully examined the record and find no basis
for reversing the findings.
2 The Board has permitted implementation of a particular proposal,
even in the absence of an overall impasse, in circumstances where the
proposal concerns a discrete annually occurring event, such as an annu-
ally scheduled wage review, that simply happens to occur while con-
tract negotiations are in progress. In Stone Container, supra, 313
NLRB 336, the Board found that the employer did not unlawfully re-
fuse to bargain where, during contract negotiations, it told the union, in
time to allow for bargaining over the matter, that it was unable to give
the annual wage increase because of economic reasons, but the union
made no counterproposal and did not raise the issue again during nego-
tiations. In that setting, the Board found that the respondent satisfied its
bargaining obligation regarding its failure to grant an annual wage
increase.
We do not rely on the judge’s statement that “Stone Container estab-
lished the principle that an employer is privileged to bargain to impasse
over ‘a discrete event . . . that simply happens to occur while contract
negotiations are in progress.’” More accurately stated, we reaffirm
that, in circumstances like those presented here, involving a discrete
event that coincidentally occurs while contract negotiations are in pro-
gress, an employer is “not required to refrain from implementing the
change [involving a discrete annually recurring event] until an impasse
As the judge found from the credited record, the Re-
spondent gave the Union timely notice of the prospective
changes at issue and an opportunity to bargain over them.
In addition, the Respondent remained willing to bargain
over the changes after implementation. The Respondent
also established that the changes were consistent with a
past practice, established when the unit’s employees
were unrepresented, under which the Respondent imple-
mented changes in copremiums, copayments, deducti-
bles, and other terms of health plan coverage on an an-
nual basis.3 The parties were negotiating for a first con-
tract, but had not reached agreement on health coverage
by the time the changes at issue would normally have
been implemented. Moreover, if the Respondent did not
take any action prior to January 1, the employees would
have suffered a disruption in coverage. Under these cir-
cumstances, the implementation did not violate Section
8(a)(5) of the Act.4
2. We also agree with the judge that Supervisor Dan
Hunter did not unlawfully restrict a unit employee’s right
to engage in protected solicitation when he reprimanded
employee Nancy Cunningham, an active union supporter,
for telephoning from home another employee, Theren
Burlison, to discuss a labor-management issue while
Burlison was working at the facility.
As the judge found from the credited evidence, Burli-
son told Cunningham that he did not want to discuss the
subject while he was working, but Cunningham contin-
ued to try to keep him on the phone until Burlison finally
hung up. When Cunningham called Hunter later the
same day on a different matter, Hunter had learned of the
incident and told Cunningham “not to call up to the floor
and chew out my nurses.” This opened a heated ex-
change during which Hunter responded that “you cannot
call and you cannot talk and you cannot call the nurses
while I am here and talk about the Union” and that she

has been reached in bargaining for a collective-bargaining agreement as
a whole.” Saint-Gobain Abrasives, supra.
3 As a result of an independent corporate acquisition, the administra-
tive service organization (ASO) that administered the Respondent’s
health plan was replaced by another entity during the relevant time
frame. The replacement of the ASO directly resulted in the substitution
of a different, but partially overlapping, network of health care provid-
ers for unit employees. That additional change was also implemented
at the same time that the Respondent implemented its time-recurrent
changes in coverage. However, there is no contention that the replace-
ment of the ASO occurred at the Respondent’s behest or that it was
within its control.
4 Based on this record, we conclude that the parties, who agreed that
time was of the essence due to the January 1, 2003 deadline, had ex-
hausted all possibilities of reaching agreement over the healthcare issue
before the deadline. We therefore do not reach the issue of whether the
Respondent was required to negotiate to impasse before implementa-
tion, because it is unnecessary to the disposition of this case. See Saint-
Gobain Abrasives, Inc., supra at fn. 3.
ST. MARY’S HOSPITAL OF BLUE SPRINGS 777
had to limit her union “talk” to outside of the Hospital or
during off-duty time in the breakroom. The conversation
concluded when Hunter told Cunningham to talk to her
lawyer to clarify her solicitation rights in the work place.
We adopt the judge’s dismissal because the context in
which Hunter reprimanded Cunningham makes clear that
his directions to her did not constitute unlawful restric-
tions on employees to solicit union support in the work-
place. Even our dissenting colleague concedes that Cun-
ningham’s interruption of Burlison’s work was unpro-
tected. Hunter’s directions to Cunningham in response
to that incident were designed to prevent a repetition of
Cunningham’s misconduct. By telling Cunningham re-
peatedly that she could not call employees, Hunter was
prohibiting Cunningham from interrupting unit employ-
ees’ work by contacting them from outside the hospital
during their worktime. Such a prohibition was entirely
permissible.
Contrary to our dissenting colleague, we do not think
that Hunter’s admonition would be reasonably under-
stood to prohibit employees from engaging in the kind of
union solicitation that is permitted in those work areas
which are not immediate patient care areas. Hunter’s
restrictions were directed at Cunningham specifically.
This is demonstrated by Hunter’s repeated references to
Cunningham’s calling employees.5 Hunter’s admonition
is reasonably understood in this context. Cunningham
was on leave at the time, and thus she contacted Burlison
by phone. Absent the restriction, a phone call from out-
side the hospital could come to a patient care area or be
answered by a working employee. Thus, Hunter told
Cunningham to limit such activity to off-duty time in the
breakroom.
Hunter’s comments could not reasonably be inter-
preted as establishing that he intended to implement a
new, more restrictive solicitation policy regarding em-
ployees in the hospital. In contrast to Cunningham, those
employees could have casual contact with their peers
during nonworktimes, or while working in nonpatient
care areas.
Similarly, our colleague says that the restriction was
not a general one, and was therefore discriminatory
against union activity. Again, this ignores the fact that
the restriction was tailored to a specific event.
ORDER
The complaint is dismissed.
MEMBER LIEBMAN, dissenting in part.

5 Our colleague does not say the contrary. She says only that “by
implication,” the restriction applied to all. Since Hunter was speaking
only in response to Cunningham’s activity, we do not believe that any
such implication has been shown.
Contrary to the majority’s view, Supervisor Dan
Hunter’s statements to employee Nancy Cunningham
that she could not discuss the Union with other employ-
ees “while she was on leave or at any time,” and that she
could discuss the Union only “outside the Hospital or
during off-duty time in the break room,” imposed clearly
unlawful restrictions on protected concerted activity.1
I.
Cunningham made a phone call from her home to em-
ployee Theren Burlison to discuss a labor-management
matter while he was at work at the Respondent’s hospi-
tal. Burlison objected to being called on that subject
during his worktime and, after Cunningham tried to keep
him on the phone, hung up. Hunter learned of the inci-
dent, and when Cunningham called him later that day on
a different subject, he told Cunningham “not to call up to
the floor and chew out my nurses.”
During the ensuing conversation, as the judge found,
Hunter told Cunningham she could not call employees
about union matters “while she was on leave or at any
time,” and that she could only discuss union matters “ei-
ther outside of the Hospital or during off-duty time in the
break room.” When Cunningham retorted that employ-
ees had the right to discuss the Union “anywhere” as
long as “we weren’t impeding patient care or patient
safety,” Hunter contradicted her and repeated that “you
can't talk about it anywhere except the break room or
outside of the hospital.” Hunter finally stated that “I am
your boss and as long as I am your boss, you cannot call
and you cannot talk and you cannot call the nurses while
I am here and talk about the Union.”
II.
Hunter’s restrictions clearly violated Section 8(a)(1) in
two ways. First, it is well established that employees of
a hospital may engage in Section 7 solicitation in any
work areas that are not “immediate patient care areas.”
Jewish Home for the Elderly, 343 NLRB 1069, 1076
(2003); Brockton Hospital, 333 NLRB 1368–1369
(1999), enfd. in relevant part 294 F.3d 100 (D.C. Cir.
2002), cert. denied 537 U.S. 1105 (2003). Hunter’s re-
strictions categorically barred Cunningham—and by im-
plication all unit employees—from engaging in Section 7
solicitation anywhere in the hospital except in the break-
room. That prohibition was unlawful. Contrary to the
majority, it cannot be justified by the mere possibility
that a union-related call from outside “could come to a
patient-care area.”

1 I agree with the majority that the Respondent’s implementation of
the changes in unit employees’ health coverage at issue here was not
unlawful.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD778
Second, even accepting the majority’s characterization
of Hunter’s statements as only a prohibition on worktime
conversation, such a prohibition would only be lawful as
part of a nondiscriminatory ban on all nonwork conver-
sation. Republic Aviation Corp. v. NLRB, 324 U.S. 793,
803 fn. 10 (1945), citing Peyton Packing, 49 NLRB 828,
844 (1943); Opryland Hotel, 323 NLRB 723, 729
(1997). Absent such a general ban, an employer’s re-
striction on protected activity cannot be justified by the
mere fact that the activity occurred during worktime.
Selwyn Shoe Mfg. Co., 172 NLRB 674, 676 (1968), enf.
denied. on other grounds 428 F.2d 217 (8th Cir. 1970).
Because the Respondent has not contended that it main-
tained a general ban, Hunter’s statement was unlawful.
See, e.g., Nicholas County Health Care Center, 331
NLRB 970, 986 (2000).
The majority emphasizes that Cunningham not only
talked to Burlison during his worktime, but also clearly
interrupted his work, by attempting to extend their con-
versation over his objections. An employer may indeed
restrict activity that actually interrupts production, and to
this extent the credited evidence indicates that Cunning-
ham’s efforts were unprotected. However, Hunter’s
statements to Cunningham in their subsequent conversa-
tion went well beyond reprimanding her for that miscon-
duct regardless of whether, as the majority asserts, those
statements were “directed” solely at Cunningham’s ac-
tion or were “designed” solely to prevent Cunningham
from repeating it. Hunter’s prohibitions contained no
such terms of limitation and would quite reasonably be
taken at face value. They were therefore unlawful.2
Lyn Buckley, Esq., for the General Counsel
Robert J. Janowitz, Esq., Paul D. Satterwhite, Esq., and Kerri
S. Reisdorff, Esq. (Constangy, Brooks & Smith, LLC), of
Kansas City, Missouri, for the Respondent.
Brian P. Wood, Esq. (Wickham & Wood, LLC), of Kansas City,
Missouri, and Walter R. Roher, Esq., of Blue Springs, Mis-
souri, for the Union.
DECISION
STATEMENT OF THE CASE
GERALD A. WACKNOV, Administrative Law Judge. Pursuant
to notice a hearing in this matter was held before me in Over-
land Park, Kansas, on June 10, 11, and 12 and August 13 and
14, 2003.. The charge in the captioned matter was filed by
Nurses Alliance/Service Employees International Union, AFL–
CIO (the Union) on January 9, 2003. Thereafter, on March 26,
2003, the Regional Director for Region 17 of the National La-
bor Relations Board (the Board) issued a complaint and notice

2 Hunter’s statements cannot be considered de minimis, as the judge
found, even if they comprised only a single occurrence and no similar
prohibitions were communicated or enforced. See Golub Corp., 338
NLRB 515, 517 (2002).
of hearing alleging violations by St. Mary’s Hospital of Blue
Springs (Respondent or Hospital) of Section 8(a)(5) of the
National Labor Relations Act (the Act). The Union filed an
amended charge on March 24, 2003, and thereafter, on May 27,
2003, the Acting Regional Director issued an amended com-
plaint and notice of hearing alleging violations of Section
8(a)(1) and (5) of the Act. The Respondent, in its answers to the
complaint and amended complaint, duly filed, denies that it has
violated the Act as alleged.
The parties were afforded a full opportunity to be heard, to
call, examine, and cross-examine witnesses, and to introduce
relevant evidence. Since the close of the hearing, briefs have
been received from counsel for the General Counsel (the Gen-
eral Counsel), counsel for the Respondent, and counsel for the
Union. Upon the entire record, and based upon my observation
of the witnesses and consideration of the briefs submitted, I
make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a corporation with an office and place of
business in Blue Springs, Missouri, where it is engaged in the
operation of an acute care hospital in Blue Springs, Missouri.
In the course and conduct of its business operations the Re-
spondent annually derives gross revenues in excess of
$250,000, and annually purchases and receives goods and ma-
terials valued in excess of $50,000 which originate outside the
State of Missouri. It is admitted and I find that the Respondent
is, and at all material times has been, an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
The parties stipulated, and I find, that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. Issues
The principal issues in this proceeding are whether the Re-
spondent has violated Section 8(a)(1) of the Act by restricting
employees from discussing the Union during working hours,
and whether the Respondent has violated Section 8(a)(1) and
(5) of the Act by fait accompli bargaining.
B. Facts
1. The 8(a)(5) allegation
On February 8, 2002,1 the Union was certified by the Board
as the collective-bargaining representative of Respondent’s
registered nurses, numbering approximately 250 employees.
The parties commenced collective-bargaining negotiations in
May. It was agreed that noneconomic matters would be dis-
cussed first, and that economic matters would be discussed
during a later stage of the negotiations.
The Respondent is one hospital under an umbrella organiza-
tion, Carondelet Health. Carondelet Health is parent organiza-

1 All dates or time periods herein are within the year 2002, unless
otherwise indicated.
ST. MARY’S HOSPITAL OF BLUE SPRINGS 779
tion to two hospitals and apparently other medical facilities,
including the Respondent, with at total employee complement
of approximately 3000 individuals, including managerial em-
ployees. Carondelet Health has always treated all these em-
ployees as a single group for purposes of its self-funded health,
dental, and vision insurance (insurance program). A trust, es-
tablished by Carondelet Health, called Carondelet Health and
Affiliates Employees Health Care Fund (Health Care Fund),
annually evaluates and determines the “plan design” or the
parameters of its insurance program, and in approximately No-
vember of each year all the employees are given notice of any
changes in plan design, premiums, deductibles or copays that
will become effective on January 1 of the following year. Dur-
ing the period between November and December 31 of each
year, all employees are given the opportunity to enroll in, or
change, or modify insurance coverage for the succeeding year.
Carondelet Health has operated this self-funded insurance pro-
gram in the same manner for the past 16 years.
On Monday, November 4, Robert Janowitz, the chief nego-
tiator for the Respondent was advised by Donna Sumner, head
of the Carondelet Health benefits program, that the trustees of
the health care fund had approved the plan design and fee
changes for the new plan year effective January 1, 2003. Upon
receiving this information, Janowitz immediately phoned Wal-
ter (Bud) Roher, the Union’s chief negotiator, and then sent
Roher the following email:
Bud, this e-mail is a follow up to the voice-mail mes-
sages I have left on your cell phone and office phone ear-
lier this morning. I am faxing to you a copy of Caronde-
let’s e-mail “Question and Answer” document that is
planned for delivery to all system employees asap. I’m
told it is very difficult to separate out the bargaining unit at
SMHBS [St. Mary’s Hospital of Blue Springs] so the bar-
gaining unit employees would be among the recipients.
SMHBS recognizes that the health insurance changes are
mandatory subjects of bargaining. The plan design
changes that are being considered would take effect on
January 1, 2003. Given the time-line, I would like to
schedule special meetings on the insurance issues between
November 12 and the end of the year. If I am not avail-
able after Dec. 1, due to NLRB hearing conflicts, my part-
ner Steve Schuster will pinch hit for me. I will be faxing
you the specific plan design changes Carondelet is consid-
ering as soon as I receive them. This should be later today
or tomorrow.
The Respondent and the Union agreed that time was of the
essence due to the January 1, 2003 deadline, and that negotia-
tions over healthcare would supercede any other contract mat-
ters. Therefore, all ensuing bargaining negotiations would be
focused on healthcare issues until that matter had been negoti-
ated.
Thereafter, there were a number of negotiating sessions.
While lengthy record evidence reflects the dynamics of each
negotiating session in specific detail, it seems unnecessary to
recount these details here, as the Union has admitted that during
the 2-month period between early November and January 1,
2003, it was provided whatever information it requested regard-
ing health insurance issues;2 that the Union and individual
nurses within the bargaining unit who attended the negotiations
were given the opportunity to ask questions of Carondelet
Health representatives, health care fund trustees, and health
care plan administrators, infra, and that the Union was provided
with a sufficient opportunity to bargain and present the propos-
als it wanted to present. Indeed, there were other negotiating
sessions scheduled for the end of the year, and the Union can-
celed these negotiations believing that further bargaining over
the matter at that time would be unproductive. Accordingly, it
appears that a summary of the bargaining negotiations is suffi-
cient for purposes of this decision.
Further, the record evidence shows and I find that the Re-
spondent gave advance notice and received permission from the
Union to send the unit employees the same information it sent
to all of its other 2750 employees. It was the agreed-upon in-
tent of both the Respondent and Union that, in the event the
parties were unable to reach some other resolution of the mat-
ter, unit employees be given the opportunity to enroll in the
plan or modify their existing benefits in a timely manner, as
employees had done for the past 16 years, and not be placed in
the position of being without health insurance after the January
1, 2003 deadline.3
Janowitz testified that one of the initial proposals the Re-
spondent made after bargaining commenced in May was a pro-
posal regarding “applicability of personnel policies.” This
proposal set out the Respondent’s position “that it wanted very
much to maintain and continue as many of its existing pollicies
and procedures as it could. And it was stated by me that if the
Union wanted us to change our existing policies, it was the
Union’s burden to convince us to do so.”
Bargaining over health insurance commenced on November
12. The Union’s chief negotiator, Roher, testified that at that
bargaining session the Respondent’s chief negotiator, Janowitz,
stated, “We don’t intend to treat our bargaining unit employees
any different than the rest of the Carondelet employees.” How-
ever, Roher also testified as follows:
Q. (by Janowitz) All right. And do you remember any
discussion regarding my acknowledgment that while this
was now the Hospital’s initial proposal, the Hospital cer-
tainly understood that it had a bargaining obligation, and
was willing to bargain over it.
A. Yes.
Q. And then I told you, that consistent with our initial
proposal, we are very interested in having everyone in . . .
Carondelet Health, in the same plan.
A. Yes.
Janowitz testified that at this meeting he referred to the Re-
spondent’s earlier “applicability of personnel policies” pro-

2 The information, introduced into evidence, is voluminous, and con-
sists of many hundreds of pages. In fact, Schuster advised Roher that
the copying costs for the information were substantial, and requested
that the Union reimburse the Respondent for such costs. Roher ob-
jected, and considered this to be an economic issue, which would be
discussed at an appropriate time in the future.
3 Approximately 132 of the 250 unit employees were enrolled in the
health insurance program.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD780
posal, and advised Roher and the union bargaining committee
that Respondent had historically treated all Carondelet Health
employees the same for insurance benefit purposes; therefore
the Respondent was proposing to continue that practice and
treat the bargaining unit employees in the same fashion. The
Union made no proposals during this meeting.
The next negotiating session was held on November 21.
There was further discussion, but no proposals from either
party. Thus, the Union had not yet presented any proposal of
its own.
In the absence of Attorney Janowitz, the Respondent was
represented by Steven Schuster during the next two meetings
on December 5 and 10. During both bargaining sessions,
Schuster repeated several times that the Respondent was will-
ing to negotiate and recognized that the health plan was a sub-
ject of negotiations.
During the December 5 bargaining session, the Respondent
introduced Jan Stahlmeyer, president and chief administrative
officer of Coventry Healthcare of Kansas (Coventry). Coventry,
an administrative service organization (ASO), had recently
purchased or acquired Healthnet, the previous ASO for Caron-
delet Health. Carondelet Health was not involved in this trans-
action. Stahlmeyer explained to the Union that beginning Janu-
ary 1, 2003, Healthnet would no longer be in business and Cov-
entry would become the ASO for Carondelet Health’s insur-
ance program. Stahlmeyer stated that Coventry had its own
“network” or provider list of physicians that was larger than the
former Healthnet network, and said that Coventry was doing
everything it could to attract and contract with former Healthnet
physicians. In this regard, the Union was given physician re-
quest forms for unit employees to submit to Coventry so that
Coventry, in turn, could contact the physicians and attempt to
include them in the Coventry network. Stahlmeyer also talked
about the transition from Healthnet to Coventry for employees
who might have to change doctors.4
Stahlmeyer was also asked by Roher whether Coventry
would consider becoming the ASO for a separate and distinct
group of unit employees. Stahlmeyer said yes.
Roher asked whether the Respondent had previously consid-
ered carving out the registered nurses as a separate group. Both
Schuster and Gary Clifton, executive vice president/chief fi-
nancial officer of the Respondent or affiliated entities, and an
officer of the Respondent as well as a trustee of the healthcare
fund, said no, that this had not been considered and that the
Carondelet Health employees had always been included in the
same plan and it was the intent to maintain that. Roher asked if
the Respondent was willing to negotiate over carving out the
unit employees as a separate group. Schuster said the Respon-
dent would entertain a counterproposal if one were presented.

4 In certain specific situations, such as chronic illness, there would
be a 90-day period beyond January 1, 2003, during which employees
could utilize their current physician even though that physician was not
a provider under the Coventry network. Stahlmeyer said there were
3600 physicians in the Coventry network and that Coventry believed
there were approximately 350 former Healthnet physicians who had not
yet signed an agreement with Coventry. The Respondent furnished the
Union with a list of former Healthnet physicians who had already
agreed to provide services under the Coventry network.
Then, during that same December 5 session, the Union pre-
sented the Respondent with its initial healthcare proposal, as
follows:
The status quo shall remain in effect for all Health,
dental and Vision plans, with respect to premiums, co-
pays, deductibles, and service provider lists during the
pendency of the negotiations. The SEIU, Nurse Alliance
reserves the right to make proposals different than this
during the economic negotiations.
Schuster stated the Respondent would consider the proposal
and respond to it at the next bargaining session.
During the interim period between bargaining sessions, the
Respondent explored an alternative proposal, namely, deter-
mining an amount of money to offer the Union so that the Un-
ion could obtain its own health insurance. Respondent’s repre-
sentatives met with an outside consultant employed by an inde-
pendent consulting firm, the same firm utilized by Carondelet
Health. Schuster testified as follows regarding this meeting:
It was a rather lengthy meeting because, quite frankly, we
were going over all sorts of information, talking about issues
such as utilization, talking about administrative costs associ-
ated with health insurance, talking about stop loss coverage
that would be necessary for protection of extraordinarily high
claims because, again, we were wanting to put a meaningful
proposal to the union and one that was based on input from
[the consultant] recognizing that it may be one seriously con-
sidered.
. . . .
We concluded the meeting with a specific figure of
$525,000.00, as the amount we would make available to
the union and, again, that figure was arrived at, as we
looked at the projected utilization for the Registered
Nurses based on the information we had provided, the
ASO fee that Coventry would charge a group of that size,
administrative costs associated with managing a plan of
that type, such as processing claims.
We also, added onto that the cost for the stop loss,
which was a figure [the consultant] had provided us, as be-
ing reasonable for a group of that size. Then, we also in-
corporated into that $525,000.00, the actual cost of the
dental insurance premiums that were paid by the bargain-
ing unit Registered Nurses.
At the December 10 bargaining session, the Respondent pre-
sented the Union with the following counter proposal:
SMHBS [St. Mary’s Hospital of Blue Springs] regis-
tered nurses will be eligible to enroll in health, dental and
vision insurance plans on the same terms and conditions as
all other Carondelet Health (CH) employees. SMHBS will
be subject to the same premiums, co-pays, deductibles and
service provider list as all other CH employees as of Janu-
ary 1, 2003. The SEIU, Nurse Alliance, reserves the right
to make proposals and engage in negotiations for other
terms during the pending negotiations between the parties.
Schuster then told Roher and the Union’s bargaining com-
mittee that the Respondent had an alternative proposal, and
ST. MARY’S HOSPITAL OF BLUE SPRINGS 781
proceeded to advise the Union that the Respondent would make
$525,000 available to the Union to go out in the open market
and obtain other insurance, including insurance through the
SEIU. He then explained how the Respondent had formulated
this proposal. Roher expressed surprise that the Respondent
was coming up with such an alternative proposal at that time.
Schuster responded that until December 5 when the Union pre-
sented its first proposal, the Respondent “had no indications
whatsoever” that the Union was not moving in the direction of
accepting the Respondent’s original proposal, and until that
time the Respondent was optimistic or at least hopeful the Un-
ion would agree.5 Roher stated that the Union wanted to main-
tain the status quo, but that the Union would have an interest in
the Respondent’s alternative proposal. He asked whether
Schuster would put this in writing. Schuster said he would.6
Regarding this, Schuster testified as follows:
We then got into a general discussion about the un-
ion’s reaction to the verbal proposal of $525,000.00 and
Mr. Roher indicated that they were interested but were not
prepared to discuss it at that time and, in fact, indicated
that the union considered the proposal tabled because they
would not talk about it, as considering it an economic tern
and condition. They basically said we are done discussing
this issue, until economics come up. Let us move on.
Schuster then asked if Roher was telling him that the Union
was refusing to talk further about health insurance until the
parties began bargaining about economic issues. Roher, ac-
cording to Schuster, said yes. Then the Union presented Schus-
ter with proposals on other unrelated contract matters. Schuster
advised Roher that he was there for the specific purpose of
discussing health insurance, and that matters other than health
insurance could be continued when Janowitz returned to the
bargaining table for the Respondent as Schuster had not been
involved became in those discussions. Roher objected to this
and, according to Schuster, became rather loud and insulting.
Schuster and his committee said they were not going to con-
tinue, and as far as they were concerned the session was over.
Schuster and Roher had a discussion in the hallway. Schus-
ter said that given the Union’s position on health insurance,
namely that the Union was not going to discuss it further until
the parties got into discussions on economics, he did not see
that anything more could be accomplished. Schuster advised
Roher that absent an agreement on health insurance, the Re-
spondent intended to convert the bargaining unit registered
nurses to the Carondelet Health insurance plan as of January 1,
2003, on the same terms and conditions as other Carondelet

5 Schuster testified that on about December 3 he had just success-
fully concluded negotiations with another union, the Operating Engi-
neers at St. Joseph’s Medical Center, another hospital under Carondelet
Health. The Operating Engineers did accept the same healthcare plan
as was being proposed to the Union, with a contract provision permit-
ting the Operating Engineers to opt out of the plan if costs increased
during the term of the contract, in which case the Operating Engineers
could implement its own plan. This contract language had also been
included in the prior collective-bargaining agreement between the
parties.
6 Schuster did put this in writing in a letter dated December 13.
Health employees. Schuster asked Roher to convey this to the
committee. Roher said no, that Schuster could tell them.
Schuster did so.
The next bargaining session was scheduled for December 20.
The Union failed to show up for this meeting. The next sched-
uled session was for December 22. The Union was to advise
the Respondent of the time and place for this meeting and did
not do so. This meeting was not held.
On December 26, Roher sent a letter Janowitz advising that
the Union had arranged for a meeting on Monday, December
30. The letter also contained the following counterproposal:
The current level of premiums, deductibles, and co-
pays shall remain in effect without change on January 1,
2003 with respect to the health, dental and vision insur-
ance. The nurses will agree to the new provider lists for
health, dental and vision the hospital proposes to change to
on January 1, 2003.
The parties met on December 30. Janowitz said that while
he appreciated the Union’s accepting the new provider lists, the
Union’s proposal was regressive in that it seemed to require
that the Respondent continue the former health insurance plan,
with no increase in premiums, deductibles, or copays for the
life of the agreement, and left no room for further negotiations
regarding health insurance during the contract term. Therefore,
the Respondent was rejecting the proposal. No further progress
was made. As announced, the Respondent implemented its
proposal and the bargaining unit registered nurses were in-
cluded in the Carondelet Health insurance plan on January 1,
2003.
Since December 30, there have been many bargaining ses-
sions over other contract matters; however health insurance has
not been discussed. Bargaining over health insurance has not
been foreclosed by the implementation of the health care plan.
Thus, the Respondent has not withdrawn its proposal permitting
the Union to request further bargaining about this matter at any
time; nor has the Respondent withdrawn its alternative proposal
to provide $525,000 to the Union so that the Union may obtain
its own health insurance plan for the registered nurses. As of
the final date of the hearing herein, August 14, 2003, the parties
have not begun discussing economic issues.
2. The 8(a)(1) allegation
The complaint alleges that in about late January 2003, a su-
pervisor “instructed employees that they cannot discuss the
Union with other employees at the Hospital.”
Nancy Cunningham, a registered nurse and an active union
adherent, had been elected as a union representative for her
floor. She had sustained an on-the-job injury and was at home
when she called her supervisor, Dan Hunter, at the Hospital and
asked if he could find some light-duty work for her. Cunning-
ham testified that during the conversation, Hunter said, “Oh, by
the way, since I have got you on the phone, I want to tell you,
not to call up to the floor and chew out my nurses.” Cunning-
ham denied that she did this, and Hunter insisted that she had
done this. Then Hunter told her that she was not to call up on
the floor and talk to anybody about union matters or anything
pertaining to the Union while she was on leave or at any time.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD782
Cunningham told him she had the right to do this and that the
nurse she had called had given her permission to speak with
him at that time. Hunter told her the only place to talk about
union matters would be either outside of the Hospital or during
off-duty time in the breakroom. Cunningham said, “Well, ac-
tually, we do have the legal right now that we have unionized to
speak about it anywhere that we would speak about anything
else, as long as we . . . weren’t impeding patient care or patient
safety.” Hunter said no, and reiterated that “you can’t talk about
it anywhere except the break room or outside of the hospital.”
According to Cunningham, the two “went back and forth,”
with “yes I can” and “no you can’t” retorts. Hunter then said,
“Well, I am your boss and as long as I am your boss, you can-
not call and you cannot talk and you cannot call the nurses
while I am here and talk about the Union.” Again Cunningham
said that although Hunter was her boss, “I must inform you that
we can talk about the Union.” Hunter then said, “Well, you
need to call your lawyer.” Cunningham said that she would do
so and while he was talking to her she hung up on him. Then
she immediately called “my lawyer,” apparently meaning the
Union’s lawyer.
Theren Burlison is a registered nurse in the bargaining unit.
Burlison testified that he was on duty wen he received a phone
call from Cunningham. This interrupted his work. Cunningham
did not ask if he had time to talk with her, and she went on to
advise Burlison that she and some of the other nurses were
going to boycott a training class conducted by another nurse
because that other nurse “had said something that was unfavor-
able to the Union.” Burlison said he didn’t know what she was
talking about and that he really didn’t have time to talk with her
as he was trying to enter data on the computer regarding a pa-
tient’s admission to the hospital. Cunningham said, “Well, you
know, we are all trying to be united as nurses here; you do want
to be united, don’t you?’ Burlison said he was busy and really
didn’t have time to talk, and Cunningham just kept talking as if
Burlison had not said anything. He repeated that he didn’t have
time to talk, and said, “This conversation is over.” Then he
slammed down the receiver. His charge nurse happened to be
nearby, and Burlison said to her, “I don’t think I have to put up
with this shit while I am at work.” The charge nurse advised
Hunter of what had happened.
I credit Burlison’s testimony and do not credit the testimony
of Cunningham insofar as it is inconsistent with Burlison’s
testimony.
Hunter did not testify in this proceeding.
C. Analysis and Conclusions
It is the position of the General Counsel and the Union that
the Respondent was simply going through the motions of bar-
gaining, but had approached bargaining with a predetermined
intent to implement its new insurance program vis-à-vis the unit
employees, including increased premiums, deductibles and co-
pays, without making a good-faith effort toward any type of
compromise. Accordingly, having presented the Union with
such a “fait accompli,” the Union came to the realization that
further bargaining would have been futile.
There is no requirement that an employer delay its decision-
making process until after bargaining with a union over a man-
datory subject of bargaining. Rather, after making its decision,
an employer is required to delay implementation of that deci-
sion until the employer has fulfilled its bargaining obligation.
Hasson Craftsmen, Inc., 300 NLRB 789 fn. 8 (1990). As the
Board stated in Hasson, at page 790:
The Board has found that it is not unlawful for an em-
ployer to present a proposed change in terms and condi-
tions of employment as a fully developed plan or to use
positive language to describe it. [Footnote omitted.]
Here the Respondent acknowledged its bargaining obliga-
tion, gave timely notice to the Union of its intent to continue to
treat bargaining unit and nonbargaining unit employees the
same unless the Union could convince the Respondent that it
should not do so, and did not implement its proposal until after
the Union determined that further bargaining would not be
productive. Moreover, during the course of negotiations, the
Respondent was not inflexible. It adopted a proposal of the
Union that permitted the Union to raise the matter of health
insurance at any time during the future course of negotiations,
and presented the Union with an alternative proposal that would
permit it to obtain other health insurance.
In this regard, there is no indication that the Respondent’s
$525,000 insurance proposal was not presented in good faith as
a viable alternative proposal. Rather, it appears that the Union
simply was not interested in it at that time. The General Coun-
sel and the Union maintain that the Union was not given suffi-
cient time to investigate this alternative proposal. I do not
agree. There is no evidence showing that the Union ever ac-
tively attempted to investigate the possibility of alternative
insurance. Nor did the Union request that the Respondent delay
implementation of its own insurance plan in order to give the
Union time to explore the possibility of alternative insurance.
Further, the Union has not raised this issue during the subse-
quent course of bargaining. Indeed, upon being presented with
this alternative proposal, Roher stated, according to the testi-
mony of Schuster, whom I credit, that the Union was interested
but considered the proposal tabled until later in the negotiations
when economic issues were to be negotiated.
From the foregoing, I find that the record evidence does not
support the complaint allegation that the Respondent presented
the Union with a fait accompli and therefore that the subse-
quent bargaining was not in good faith.
While the complaint contains no such specific allegation, the
General Counsel and Union also take the position that as a mat-
ter of law the Respondent was precluded from putting its
healthcare plan into effect until after an impasse was reached
on the entire contract, not merely on the healthcare issues. See
RBE Electronics of S.D., Inc., 320 NLRB 80, 81 (1995); Bot-
tom Line Enterprises, 302 NLRB 373 (1991). The Respondent
has expressly relied upon the Board’s decisions in Stone Con-
tainer Corp., 313 NLRB 336 (1993), and Brannan Sand &
Gravel, 314 NLRB 282 (1994), for the proposition that it was
privileged to bargain to impasse over health insurance alone,
during the course of negotiations.
Stone Container established the principle that an employer is
privileged to bargain to impasse over “a discrete event, such as
an annually scheduled wage review . . . that simply happens to
ST. MARY’S HOSPITAL OF BLUE SPRINGS 783
occur while contract negotiations are in progress.” Thus, in
Brannan Sand & Gravel, the Board states:
The health plan changes at issue here are similar to the
annual wages increases involved in Stone Container be-
cause the record shows that since the inception of the
health care plan, its costs and benefits have been reviewed
and adjusted annually to control the Respondent’s expen-
ditures. Therefore, in accordance with Stone Container,
we find, contrary to the Judge, that the Respondent was
not obligated to refrain from implementing its proposed
changes until an impasse was reached on collective-
bargaining negotiations as a whole.
In this regard, the General Counsel and Union argue that the
precedent established by Stone Container and Brannan Sand &
Gravel is not currently followed by the Board or, in the alterna-
tive, that the Board should overturn these decisions because
piecemeal bargaining has an inhibiting effect on overall con-
tract negotiations and a demoralizing effect on recently-
certified unit employees. Regarding this argument, it appears
that the Union and the General Counsel are raising policy con-
siderations that should be addressed to the Board.7 Regarding
the argument that the Board no longer seems to follow these
decisions, the General Counsel cites, principally, Maple Grove
Health Care Center, 330 NLRB 775 (2000). In Maple Grove
Health Center the Board reiterates the general rule that, with
two exceptions, an employer may not bargain to impasse on a
piecemeal basis: namely, when the union engages in tactics
designed to delay bargaining, or when economic exigencies
compel prompt action by the employer. Accordingly, the Gen-
eral Counsel and the Union read this language as tacitly over-
turning Stone Container and Brannan Sand & Gravel as these
cases present a third exception to the general rule. See also
Mackie Automotive Systems, 336 NLRB 347 (2001); RBE Elec-
tronics of S.D., Inc., supra.
I find this argument to be without merit. The Board in Ma-
ple Grove Health Center, Mackie Automotive, and RBE Elec-
tronics was simply not confronted with a Stone Container issue
and therefore its omission of the Stone Container principle may
not be given the overriding significance suggested by the Gen-
eral Counsel. Further, the Boards’ Office of the General Coun-
sel, in a report on recent case developments dated November 8,
2002, under the heading of “Changing Health Insurance Plans,”
specifically determined not to issue a complaint in a case be-
cause of the Brannan Sand & Gravel exception to the general
rule. Clearly, the Office of the General Counsel believes that
the Brannan Sand & Gravel exception to the general rule con-
tinues to be a viable principle of Board law.
The Union contends in its brief that the health care changes
implemented by the Respondent do not fall within the discrete
event exception. Rather, according to the Union, the changes
constitute a complete revamping of the Respondent’s health

7 Even if the Board were to overturn these decisions, it would clearly
be inappropriate to do so retroactively, as the Respondent specifically
relied upon these decisions to formulate its bargaining strategy.
care program8 because the Respondent not only made changes
to the premiums, deductibles, and copays, but also changed its
administrative service organization from Healthnet to Coven-
try; this latter change further resulted in a different network of
physicians or health care providers than had previously pro-
vided services to the unit employees.9 Regarding changes to
the ASO and its contracts with various providers, this decision
was not made by the Respondent; rather, as noted above, this
change occurred as a result of eventualities beyond the Respon-
dent’s control. Further, the record shows that the Respondent
has had an annual practice of evaluating its “plan design.”
While the record does not specifically note the various compo-
nents of a plan design, it may be assumed that this language
would include the evaluation and changing of all components
of the Respondent’s insurance program, including its ASO and,
as a result, the provider network. There is no record evidence
to the contrary. Accordingly, I find this argument of the Union
to be without merit.
On the basis of the foregoing, I shall dismiss the 8(a)(5) alle-
gation of the complaint.
Regarding Hunter’s conversation with Cunningham, there
was a clear difference of opinion about the rules regarding un-
ion discussion during working hours. Cunningham was an
active union representative and Hunter knew this. Cunningham
forcefully told Hunter what her “legal rights” were and Hunter
forcefully disagreed. Then, after they seemed to be at an im-
passe over the matter, Hunter told her to call her lawyer.
Clearly, Cunningham was not intimidated by Hunter as she
hung up on him. Also, intermingled with this difference of
opinion was Hunter’s pique at Cunningham’s clearly inappro-
priate behavior in bothering another on-duty nurse who, I have
found, had indicated to Cunningham that he was busy and did
not want to be harassed about union matters. There is no evi-
dence that at any time before or after this conversation either
Cunningham or any other nurse has been prohibited from en-
gaging in permissible union activity.
On the basis of the foregoing, I shall dismiss this allegation
of the complaint. Hunter believed that he was right, and Cun-
ningham believed that she was right. Hunter did not threaten to
take any disciplinary action against Cunningham, but merely
told her to call her lawyer. There is no showing that this con-
versation resulted in any adverse action against Cunningham,
even though Cunningham hung up on Hunter. Regardless of
who was correct regarding the parameters of the work rules,
this one isolated difference of opinion, occurring nearly a year
after the Union had been certified as the collective-bargaining
representative of some 250 registered nurses, is clearly de mini-
mus.
Accordingly, I shall dismiss the complaint in its entirety.

8 The Union did not make this argument during the hearing, and
therefore the Respondent did not have an opportunity to rebut it.
9 During the course of bargaining the Union agreed to Coventry’s list
of health care providers, and there is no showing that any physicians
utilized by the unit employees were not included in Coventry’s net-
work.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD784
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Respondent has not violated the Act as alleged in the
complaint.
On these findings of fact and conclusions of law, I issue the
following recommended10
ORDER
The complaint is dismissed in its entirety.

10 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.