Summa Health System

National Labor Relations Board - Board Decisions

Apr 28, 2000

330 N.L.R.B. 1379 (N.L.R.B. 2000)

SUMMA HEALTH SYSTEMS 1379
Summa Health System, Inc. and American Federation
of State, County and Municipal Employees, Lo-
cal No. 684, AFL–CIO and American Federation
of State, County and Municipal Employees,
Ohio Council 8, AFL–CIO. Cases 8–CA–26463–
1, 8–CA–26463–2, 8–CA–26673, 8–CA–28523, 8–
CA–28608, and 8–CA–29143
April 28, 2000
DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND HURTGEN
On March 29, 1999, Administrative Law Judge Tho-
mas R. Wilks issued the attached decision. The Respon-
dent filed exceptions and supporting and reply briefs, and
the General Counsel and the Charging Party filed briefs
in response.
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, and conclusions1 and
to adopt the recommended Order.
Our dissenting colleague characterizes our conclusion
that the Respondent failed to bargain for a new contract
in good faith as a finding premised merely on the Re-
spondent’s “firm advocacy of certain significant contract
changes [which] demonstrated an intent to avoid reach-
ing an agreement.” On the contrary, our affirmance of
the judge’s conclusion is based on a variety of factors in
addition to his findings regarding the Respondent’s con-
tinued insistence on its sweeping proposals concerning
work transfer, job classification, and wages. As set forth
in the judge’s decision, these additional factors include
the Respondent’s unlawful establishment and operation
of “Process Enhancement Teams” for the purpose of cir-
cumventing the Union’s bargaining authority; the unilat-
eral transfer of bargaining unit work outside the unit; the
Respondent’s failure to provide any specific economic
justification for the absolute discretionary powers it de-
manded which lessened protections for bargaining unit
work, other than generalized insistence on some vague
concept of “flexibility”; the Respondent’s effective nega-
tion of the few bargaining concessions it made by its
simultaneous insistence on proposed language conflict-
ing with those concessions; the Respondent’s refusal to
agree even to a provision affirming the Union’s right to
seek a unit clarification determination from the Board
with respect to new employees whom the Union had
agreed might be assigned bargaining unit work; and the
Respondent’s unlawful failure to comply with the Un-
ion’s requests for information relevant to the negotia-
tions. This case is therefore distinct from other cases in
which we have found a violation of Section 8(a)(5)
purely on the basis of the substance of employer propos-
als, e.g., A-1 King Size Sandwiches, Inc., 265 NLRB 850
(1982), enfd. 732 F.2d 872 (11th Cir. 1984).

1 The judge cited McClatchy Newspapers, Inc., 321 NLRB 1386
(1996), enfd. 131 F.3d 1026 (D.C. Cir. 1997), cert. denied 524 U.S. 937
(1998), in connection with the Respondent’s insistence on being given
the right to unilaterally determine wage increases. As the parties point
out, McClatchy involved the implementation of a unilateral merit pay
proposal after the parties had reached impasse. We therefore view
McClatchy as applicable here only to the extent that it supports viewing
a demand for unilateral employer discretion over wage increases as a
factor in determining whether the employer has bargained in bad faith.
See South Carolina Baptist Ministries, 310 NLRB 156, 157 fn. 4
(1993).
Our dissenting colleague further contends that the Re-
spondent cannot be found to have bargained in bad faith
because in October 1996 it assertedly “offered to submit
the disputed matters to arbitration.” The Union initiated
the offer to submit all outstanding issues to interest arbi-
tration, and the Respondent initially accepted this offer
only with respect to three of those issues, later expanded
to five. As the judge noted, the bargaining issues the
Respondent actually agreed to refer to arbitration did not
even include all of those cited in the General Counsel’s
complaint, let alone all of the parties’ other unresolved
issues. The ultimate disposition of the matters sent to
arbitration accordingly could not have formed the re-
quired basis for a full agreement. Nor can the Respon-
dent’s agreement to partial arbitration, after an extended
period of bargaining, be viewed in isolation from the
totality of the other evidence—including the Respon-
dent’s other violations of Section 8(a)(5) and (1), not
disputed by our dissenting colleague—all of which bears
on the question of its good faith.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Summa Health System, Inc.,
Akron, Ohio, its officers, agents, successors, and assigns,
shall take the action set forth in the Order.

MEMBER HURTGEN, concurring in part, and dissenting in
part.
1. I agree with my colleagues that the Respondent vio-
lated Section 8(a)(5) by bypassing the Union with respect
to terms and conditions of employment. The Union was
the exclusive bargaining representative. Notwithstanding
this, the Respondent created “Process Enhancement
Teams” (PETs) to make proposals regarding, inter alia,
consolidation of positions within the bargaining unit and
the transfer of unit work from the unit. Clearly, such
conduct bypassed the Union in its role as the exclusive
representative of employees concerning terms and condi-
tions of employment.
The fact that the Union was given an opportunity to be
on the steering committee of the PETs does not warrant a
contrary result. As a member of the committee, the Un-
ion could be outvoted by others on the committee. Noted
above, the Union is legally entitled to be the sole repre-
330 NLRB No. 197
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1380
sentative concerning terms and conditions of employ-
ment.
Nor did the contract privilege the bypass of the Union.
Even assuming arguendo that the contract gave the Re-
spondent the right to consolidate unit positions, it did not
give the Respondent the right to transfer unit work to
nonunit employees.1
Concededly, the Respondent told the Union that after
receiving PET proposals the Respondent would bring
these matters to the Union. However, the Respondent’s
actions belied its words. The Respondent refused to bar-
gain with the Union with respect to consolidation of unit
positions and with respect to the transfer of unit work to
nonunit employees. As discussed above, this refusal was
unprivileged, at least with respect to the transfer of unit
work.
In order to remedy the above violation, I would require
that the Respondent disestablish the PETs, i.e., the
mechanism through which it bypassed the Union. Fur-
ther, inasmuch as this is essentially the remedy that
would flow from an 8(a)(2) violation, I do not reach the
issues of whether the PETs were a labor organization
under Section 2(5) and whether Section 8(a)(2) was vio-
lated.2 Suffice it to say that they were the mechanism
through which the Respondent bypassed the exclusive
bargaining representative.
2. I cannot find that the Respondent engaged in overall
bad-faith bargaining. The facts are fully set forth by the
judge. The parties met over 40 times prior to the union
strike that began on November 7, 1996, and over 20
times after that date. The parties reached tentative agree-
ment on many items. However, in the view of the judge
and my colleagues, the Respondent’s firm advocacy of
certain significant contract changes demonstrated an
intent to avoid reaching an agreement. I disagree.
I have reviewed the totality of the Respondent’s bar-
gaining. Having done this, I find no overall bad-faith
bargaining. As recounted by the judge, the parties
reached agreement on many provisions for a successor
agreement. Concededly, the items separating the parties
were not insignificant. And, these items included the
Respondent’s push for contract provisions that would
reserve certain rights to itself. However, as the judge
acknowledged, the Respondent’s contract proposals were
not per se unlawful. The Respondent did not insist to
impasse on any of its proposals, and the Board may not
compel a party to accede to the other party’s demands.
Most significantly, in October 1996, in an attempt to
reach agreement and avoid a strike by the Union, the
Respondent offered to submit the disputed matters to
interest arbitration. Clearly, an employer who is willing

1 In this regard, I have applied my “contract coverage” analysis,
rather than a waiver analysis. See my opinion in Dorsey Trailers, Inc.,
327 NLRB 835, 836–837 (1999).
2

See my dissent in Polaroid Corp., 329 NLRB 424 (1999).
to have a neutral third party resolve differences is not a
party who wishes to avoid agreement.
I disagree with the judge’s discounting of the Respon-
dent’s offer to submit unresolved items to binding arbi-
tration. The judge noted that interest arbitration cannot
be compelled. However, that point is not significant
here. Rather, the point here is that the Respondent pro-
posed a reasonable and fair means of resolving the major
issues separating the parties. Viewing the totality of the
Respondent’s conduct, and especially its offer to submit
differences to binding arbitration, I cannot find that the
Respondent bargained with an intent to avoid reaching an
agreement.3

Susan E. Fernandez, Esq., for the Acting General Counsel.
James A. Kurek, Esq. and Victor T. Geraci, Esq. (Buckingham,
Doolittle & Burroughs), of Akron, Ohio, for the Respon-
dent.
Sean Grayson, Esq., of Worthington, Ohio, for the Charging-
Party.
DECISION
STATEMENT OF THE CASE
THOMAS R. WILKS, Administrative Law Judge. On a charge
filed on May 17, 1994, in Case 8–CB–7702 by Summa Health
System, Inc.1 a complaint and notice of hearing issued on July
1, 1994, against American Federation of State, County and
Municipal Employees, Local No. 684, AFL–CIO–CLC (Local
684) and on charges filed on June 16, 1994, in Cases 8–CA–
26463–1 and 2 by Local 684 against Respondent Summa
Health System, Inc., and on a charge filed on August 24, 1994,
by Local 684 and the American Federation of State, County and
Municipal Employees, Ohio Council 8, AFL–CIO (Council 8)
against Respondent Summa Health System, Inc. in Case 8–CA–
26673. On December 30, 1994, the Regional Director issued
an order consolidating cases, amended consolidated complaint
and notice of hearing; based on the foregoing charges and sub-
sequent amendments, a second order consolidating cases, sec-
ond amended consolidated complaint and notice of hearing
issued on July 12, 1996. Subsequently, Charging Parties Local
684 and Council 8 have charged in Cases 8–CA–28523 and 8–
CA–28608 on September 17 and October 18, 1996, that Summa
Health System, Inc. had engaged in further unfair labor prac-
tices defined in the Act. On April 30, 1997, the Regional Di-
rector issued the third order consolidating cases, third amended
consolidated complaint and notice of hearing (the complaint).
The complaint alleged that the Respondent violated Section
8(a)(1) of the Act by informing employees that an employee’s
union activity was the reason for that employee’s disciplinary
warning; that it violated Section 8(a)(1) of the Act by a selec-
tive and disparate enforcement on October 31, 1996, of a preex-
isting solicitation-distribution rule; that it violated Section
8(a)(1) and (2) of the Act from about January 21 to June 1994
by dominating and interfering with the administration of and
3 The fact that the Respondent sought contract clauses, which gave it
unilateral control over certain matters, does not establish bad-faith
bargaining. See NLRB v. American National Insurance Co., 343 U.S.
395 (1950).
1 At the hearing, counsel for the Acting General Counsel amended
the complaint to reflect the Respondent’s correct legal name, Summa
Health System, Inc.
SUMMA HEALTH SYSTEM 1381
rendering unlawful assistance and support to certain employee-
management committees known as “maintenance sub-PET
team,” and Management Pilot Unit sub-PET team,” alleged in
the complaint to have constituted a labor organization within
the meaning of the Act. The complaint alleged that the Re-
spondent violated Section 8(a)(5) and (1) of the Act by:

(1) Commencing on about January 21, 1994, and con-
tinuing thereafter, bypassing the employees’ exclusive bar-
gaining agent and dealing directly with bargaining unit
employees by discussing mandatory subjects of bargaining
in the sub-PET teams referred to above;
(2) On about February 1994, unilaterally transferring
bargaining unit duties to nonbargaining unit employees in
the following bargaining unit job classifications: house-
keeping, dietary, transportation, and maintenance;
(3) During a period of collective bargaining from Oc-
tober 1995 to April 1997, advancing and adhering to the
following proposals. Article 1, section 2—the Respondent
would have the sole, exclusive, and nonreviewable right to
transfer to another job classification, within or outside the
bargaining unit, any and all work at any time; article 2,
section 2—the Respondent would be able to work nonunit
part-time employees over 40 hours per week with no limi-
tations; article 2, section 9—the Respondent could transfer
bargaining unit work to non-bargaining unit employees
whenever it deemed necessary; and article 25—the Re-
spondent would have the ability to unilaterally determine
wage increases in the second and third year of the con-
tract;
(4) Refusing and failing to furnish or to timely furnish
the employees’ bargaining agent with information neces-
sary and relevant to the performance of its representation
duties requested by its letter on about March 9 and Sep-
tember 1, 6, and 7, 1994, and August 12 and September 6
and 13, 1996.

Finally, the complaint alleged that Local 684 and Council 8
engaged in a strike against the Respondent from November 7,
1996, and continuing to February 3, 1997, which was caused by
the Respondent’s unfair labor practices.
The Respondent filed an answer to the complaint on May 14,
1997. Pursuant to a charge filed on June 27, 1997, by Local
684 in Case 8–CA–29413, the Regional Director issued an
order consolidating cases and complaints on February 6, 1998,
which alleged that the Respondent violated Section 8(a)(1) and
(3) of the Act by its December 31, 1996 termination of em-
ployee Bobbie Powell, and its February 6, 1997 written warn-
ing to employee Linda Norman. On February 17, 1998, the
Respondent filed its answer in Case 8–CA–29143 denying the
commission of any unfair labor practices.
The issues raised by these pleadings were litigated at trial be-
fore me February 23–26 and March 23–26, 1998. Prior to trial,
Case 8–CB–7702 had been settled and at trial was severed on
motion by the parties and remanded to the Regional Director
for compliance processing. The parties also reached a settle-
ment agreement with respect to the allegation in Case 8–CA–
29143 regarding the termination of employee Bobbie Powell.
That allegation was therefore not litigated but remanded to the
Regional Director for compliance processing.
At the trial, the parties were given full opportunity to adduce
relevant testimonial and documentary evidence and to argue
orally. They were also afforded opportunity to submit post-trial
briefs. On May 18, 1998, the General Counsel, the Charging
Party, and the Respondent filed exhaustive briefs of 100, 79,
and 30 pages, respectively.
The briefs submitted by the parties fully delineate the facts
and issues and, in form, approximate proposed findings of facts
and conclusions. Portions of those briefs have been incorpo-
rated herein, sometimes modified, particularly as to undisputed
factual narration. However, all factual findings herein are
based upon my independent evaluation of the record. Based
upon the entire record, the briefs, and my observation and
evaluation of the witnesses’ demeanor, I make the following
findings
I. THE BUSINESS OF THE RESPONDENT
At all material times, Summa Health System, Inc., an Ohio
corporation with an office and place of business in Akron,
Ohio, Summa Health System’s facility, has been engaged in the
operation of a hospital providing inpatient and outpatient medi-
cal care. Annually, in the course and conduct of its business,
Summa Health System derives gross revenues in excess of
$250,000 and purchases and receives goods valued in excess of
$50,000 from points located directly outside the State of Ohio.
It is admitted, and I find, that at all material times, Summa
Health System has been engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATIONS
It is admitted. and I find, that at all material times, Local 684
has been a labor organization within the meaning of Section
2(5) of the Act.
It is admitted, and I find, that at all material times, Council 8
has been a labor organization within the meaning of Section
2(5) of the Act.
It is admitted, and I further find, the following.
The employees set forth in detail in Article II, Section 2 of
the most recent collective-bargaining agreement between the
parties and effective by its terms from November 23, 1992, to
November 22, 1995, herein called the unit, constitute a unit
appropriate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act. On an unspecified date in
1969, Local 684 and Council 8 (sometimes collectively referred
to as the Union) were certified as the exclusive collective-
bargaining representative of the unit and have been parties to
successive collective-bargaining agreements since that time.
At all times since 1969, based on Section 9(a) of the Act,
Local 684 and Counsel 8 have been the exclusive collective-
bargaining representative of the unit.
III. THE UNFAIR LABOR PRACTICES
A. Background
In 1989, the Respondent acquired the ownership and opera-
tion of Akron City Hospital (ACH) and St. Thomas Medical
Center (St. Thomas), which are situated approximately 2 miles
apart. Certain employees at ACH are represented by Local
684. St. Thomas’ employees are not represented by any labor
organization.
Local Union President Larry Powell testified without contra-
diction as to the background and bargaining history between the
Local and ACH. Local 684 has represented service and main-
tenance employees at ACH since approximately 1969. The job
classifications represented by the Local are set forth in Article
2, Section 2 of the parties’ latest 3-year contract which expired
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1382
on November 22, 1995. As set forth in the contract, the bar-
gaining unit includes dietary, laundry, housekeeping, mainte-
nance, aides, orderlies, transportation, laboratory, pharmacy,
and medical records employees. At the time of the trial, there
were approximately 380 employees in the bargaining unit. The
bargaining unit excludes part-time employees working in the
same classifications as bargaining unit employees and also
excludes registered nurses (RNs), licensed practical nurses
(LPNs), unit secretaries, respiratory therapists, and physical
therapists. The Union had attempted to organize the excluded
employees, including RNs and LPNs, without success.
John Childs, the Respondent’s vice president, chief legal of-
ficer, and previous ACH chief collective-bargaining negotiator,
testified that the Respondent commenced its existence upon the
acquisition of the two hospitals and that no significant negotia-
tions or real discussions with the Union occurred at that time
regarding interhospital transfer of employees. He testified that
the last intensive contract negotiation occurred in the 1989
contract negotiation but that the 1992 contract was “pretty
much a rollover from the previous contract” except for dates
and economic items, without a “full-blown negotiation.” He
testified in generalized terms about “changes generally in the
health care field” since 1990; i.e., the expansion of “managed
care” into Northeast Ohio, “severe pressure on hospitals regard-
ing revenue in the market place,” a difference of “several thou-
sand per admission” less for a managed care discharge and a
shorter “length of stay,” and a change “from inpatient to outpa-
tient” which has impacted revenue. Without any detailed speci-
fication, he testified that these “impacts in the health care field
[have] been felt at [Respondent’s operation].” He testified in
generalized conclusionary terms to a need by the Respondent
for a need for “flexibility,” including flexibility in relation to
the transfer and interchange of employees, classification, and
work to meet “market place conditions.” There was no eviden-
tiary foundation adduced for these conclusions.
B. PET Teams
1. Facts
In 1993, the Respondent introduced to its ACH employees
the phrases “reengineering the hospital ” and “PET teams”; i.e.,
“Process Enhancement Teams.” In a June 1993 newsletter to
employees, Al Gilbert, the Respondent’s president and CEO,
described reengineering as looking afresh at the work required
to create a company's product or service and deliver value to
the customer. The same newsletter informed employees that
the Respondent had retained an international consulting firm,
A. T. Kearney, its admitted agent, to assist the hospital through
the process of reengineering.
Vice President Childs testified that the 1993 reengineering
process intended to address issues of efficiency and cost reduc-
tion in operations, in part through the PET teams. According to
Childs, there were originally four PET teams formed in 1993.
Childs was a member of one of the teams, the Material Man-
agement PET Team. The other PETs were the General Ser-
vices PET, the Patient Information PET, and the Patient Care
Delivery PET.
Childs was also a member of the Steering Committee that
exercised managerial control over the reengineering process
and the PET teams. Thereafter, the Respondent formed numer-
ous other teams referred to as sub-PETS. Childs testified that
there were over ten sub-PETS. Documentary evidence reveals
that as of April 1994, there were approximately 21 sub-PET
teams. Childs testified that several hundred employees were
members of the PET and sub-PET teams. He testified that they
were instructed not to address mandatory bargaining subjects of
wages, hours, and conditions of employment. He did not spec-
ify how this was done or who did it. According to Childs, the
PET team mechanism was phased out in 1995 and succeeded
by more limited employee-managerial informational exchange
mechanism under a so-called concept of employee discussion
groups at the specific hospital floor level.
In April 1993, Eugene Damron, the then vice president of
Local 684, and Larry Powell attended a meeting held by hospi-
tal representatives. Isabelle Reymann, vice president of opera-
tions, conducted the meeting on behalf of the Respondent. The
reengineering and PET team concept was explained. Reymann
solicited the Local’s agreement to utilize bargaining unit
employees as PET team members. Reymann told Powell and
Damron that the employees’ participation on the teams would
last for 7 months and that they would serve on the teams full-
time and receive their regular wages. At the end of the 7
months, the employees would return to their former positions.
According to Powell’s uncontradicted testimony, Reymann also
informed them that the reengineering program would terminate
in 4 years and that the PET teams would not include managerial
members. She stated that the employees would be nominated
for membership but did not elucidate how this was to be done.
Reymann promised to meet monthly with the union representa-
tives at which time she would advise them of what the PET
teams were doing.
Powell responded to Reymann that the Union was aware of
changes in the health care industry across the nation and would
work with them in the reengineering process and agreed that
bargaining unit employees could participate in the PET teams.
He cautioned the management representatives that if at any
time the Union had reason to believe that management was
negotiating directly with employees, the Union would remove
their members from the team. According to Powell’s uncontra-
dicted testimony, the monthly meetings that Reymann indicated
would be held with the Union never came about and he subse-
quently received a roster of PET team members in September
1993 which revealed numerous senior managers’ participation
in 27 different PET teams. There is no dispute as to the exten-
sive and comprehensive participation of the Respondent’s man-
agers in PET team meetings. Nor is there any dispute that these
teams were the creatures of the Respondent and were sustained
by the Respondent’s resources and functioned on the Respon-
dent’s property under the Respondent’s managers’ direction
and control of their agenda, discussions, and joint recommenda-
tions made as a result of their deliberation to higher manage-
ment. The Respondent’s managers imposed ground rules for
team discussions. These managers imposed the objectives and
goals of PET and sub-PET teams; e.g., to devise changes in
hospital operations involving their own work function that
might reduce costs and increase efficiency.
Although the Respondent’s managers created the illusion of
representational status of employee members, it was the Re-
spondent’s managers who controlled the so-called nomination
and ultimate employee-member selection process.2

2 In April 1993, the Respondent held meetings of all employees of
both hospitals wherein in describing reengineering and four PET teams,
it unilaterally announced criteria for qualification for employee mem-
bership, e.g., respect among one’s peers, and solicited over 1400 nomi-
nations for employee membership.
SUMMA HEALTH SYSTEM 1383
Despite Childs’ generalized testimony disclaimer that terms
and conditions of employment were not to be addressed by the
PET and sub-PET teams, it was inevitable that those topics
necessarily were addressed because employee team members
made suggestions, discussed suggestions, and made recom-
mendations as to how employees’ work functions and job tasks
might be changed to effectuate more efficient operations and
lesser labor costs. Thus, conditions of employment were in fact
addressed by these teams although it is clear that much of what
the bargaining unit employees recommended were given little
deference by the managerial committee overseers. However,
they were ordered to solicit support for PET and sub-PET team
recommendations that were submitted to managerial steering
committees. Some examples are as follows:
In December 1993, the Maintenance sub-PET team, led by
Manager of Clinical Engineering Services Moe Kasti directed
the team members to consider that a way to reduce costs was to
combine jobs through cross-training of employees in work
functions beyond their classifications, and instructed them to
devise ways to combine classifications in order to reduce the
hospital employment level. He announced that the goal was to
reduce the maintenance employee complement by 5 to 10 per-
cent. They were told that the PET process would function
through August 1994. At a Maintenance sub-PET team meet-
ing January 1994, CEO Al Gilbert told the team members that
if they did not make changes in operations via cross-training
and the reengineering process, he would do it unilaterally.
Thereafter, such PET meetings were held weekly in the manner
described above on the Respondent’s time. At meetings, the
team was directed to discuss the concept of “generalist”; i.e., an
employee cross-trained to perform a variety of job duties, and
to consider and make recommendations as to the relinquish-
ment of bargaining unit job functions to nonunit employees;
e.g., light maintenance duties such as light bulb replacement,
picture hanging, and floor mopping to be done by nurses.
When one unit employee failed to make any such recommenda-
tion, Cindy Trifelo, team member and Administrative Director
of Surgical Services, made one for him. Some of these recom-
mendations were actually implemented; e.g., nurses changed
light bulbs and thermostats. Although there were occasions in
the past when nursing unit personnel performed bargaining unit
work in extraordinary situations, the preponderance of undis-
puted evidence reveals that as the employment level of bargain-
ing unit employees decreased, many more menial maintenance
functions were performed by nonunit personnel, such as the
RNs and NAs, with routine frequency as a result of the reengi-
neering and PET team program.
On occasion, some bargaining unit members questioned and
even protested that bargaining unit work was being impacted by
manager suggestions that bargaining unit work be transferred to
nonunit employees without the input of the Union. These pro-
tests were rejected. On one such occasion, Trifelo retorted that
the bargaining unit employees were the Union and they could
instruct the Union what to do. Ultimately, the Maintenance
sub-PET team submitted an extensive 60-page proposal dated
May 1994 to the Steering Committee, which contained recom-
mendations, inter alia, as to bargaining unit job functions, work
performance, evaluation, workload, work inspection, skills,
productivity, and safety. Clearly the whole thrust of these rec-
ommendations would necessarily impact conditions of bargain-
ing unit employees’ working conditions in order to reach the
Respondent’s goal of greater efficiency and lower operating
costs.
Another of the four original PET teams was the “Patient
Care PET,” which included bargaining unit employees, e.g.,
housekeepers, lab employees, etc. Their meetings commenced
in September 1993. Thereafter, they received a variety of
reengineering documents, which set subsequent agendas and,
after breaking down into sub-PET teams, made recommenda-
tions which PET team facilitator Rick Wisniewski, the Respon-
dent’s director of finance, conveyed to the Steering Committee,
which thereafter implemented them.
The Patient Care PET team was also provided a notebook
entitled “To Create a Twenty-First Century Hospital—
Redesigning Patient Care.” This document described a way to
“better service placement” by cross-training RNs “to perform
ancillary services previously performed by specialists . . . ex-
amples of cross-training skills: respiratory therapy, physical
therapy, EKG, phlebotomy, IV therapy.” The notebook also
detailed the creation of generalist positions to perform house-
keeping, transportation, and dietary functions. This cross-
training approach was placed on a graph, which was distributed
to PET team members by PET team leaders and facilitators.
From the Patient Care PET team evolved the Patient Man-
agement sub-PET team. Management level employees also
continued to sit on this sub-PET team, which met daily in
smaller subsidiary groups. The sub-PET team identified “uni-
versal duties” that all staff on the nursing units could perform.
These universal duties included delivering food, linen, chang-
ing light bulbs, and doing EKGs.
The team discussed creating new positions entitled RN-care
coordinator, support associate technical associate, and adminis-
trative associate. Eventually, the Sub-PET team created job
descriptions for these positions. Each of the job descriptions
contained “miscellaneous duties,” which were the “universal
duties” identified by the sub-PET team. The miscellaneous
duties set out in the job descriptions of the RN-care coordina-
tor, technical associate, and administrative associate included
the duties of passing and picking up trays, maintenance, room
cleaning, bed cleaning, feeding, and transportation. Bargaining
unit employees who were nurse’s aides, maintenance employ-
ees, transportation aides, dietary aides, phlebotomists, and
housekeepers had previously performed these duties.
The Patient Management Pilot sub-PET team also discussed
hours of work of RN care coordinator, technical associate, and
support associate. Specifically, the PET team discussed
whether classifications should work 8 or 12 hours' shifts.
When issues of changing union job classifications came up,
members on the sub-PET team asked about the Union. The
members of the team were told by management personnel of
Summa, including Summa President Gilbert, “not to worry
about the union.”
In February 1994, Powell became concerned about employee
reports of the PET team activities that he had been receiving.
Powell and Damron attended a PET team meeting of the
General Services PET on February 1, 1994. Present at the
meeting were team members of the General Services PET, both
management and nonmanagement. Moe Kasti was also present
at the meeting. Powell explained his concerns to Kasti con-
cerning reports of the transfer of bargaining unit work to non-
bargaining classifications. The team members acknowledged
that the transfer of bargaining unit to nonbargaining unit classi-
fications was being considered on a hospitalwide basis.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1384
On February 7, 1994, Powell wrote Paul Jackson, Director of
Labor Relations at ACH, and demanded that all bargaining unit
employees be removed from the PET teams. Powell stated his
concerns and based on his meeting with the General Services
PET on February 1, he concluded that the Respondent was
attempting to circumvent the Union and the collective-
bargaining agreement concerning topics raised in the PET
teams.
After receipt of the letter, Reymann asked to meet with the
Union. On February 11, 1994, the Respondent’s representa-
tives Childs, Reymann, Jackson, Kasti, and Costeel met with
Union representatives Powell, Damron, and Stump who denied
that the Respondent had negotiated with employees regarding
“jobs or job descriptions.” Powell explained that the Union
witnessed PET teams dealing with job changes that ought to be
negotiated with the Union and that the Respondent was dealing
directly with employees. Powell asked the hospital to negotiate
with the Union, but Childs refused. Childs responded: “This
has been an issue with you for many years. We need the input
of the employees on the teams.” Reymann acknowledged that
positions would be eliminated and new positions would be
created, but that the Respondent will proceed with the PET
process. When Powell asked whether those positions would be
negotiated, Childs answered, “I don’t have to tell you how Ar-
ticle XXIII [and] XXIV of the collective-bargaining agreement
work.” Powell reiterated his demand for negotiation. Reymann
answered him by stating that if “anyone does not want to be a
part [of the PET process] that’s fine, but we would like to have
their input.” Stump appealed to Childs to resolve what he char-
acterized as “this non-communication.” Childs suggested a
written proposal for his review and a Respondent letter re-
sponse of assurance that employee team participation will not
be used against the Union “in any way.” After some discussion
of A. T. Kearney’s relationship, Reymann stated that PET team
members had “no authority to negotiate “anything” and that all
proposals, which she characterized as suggestions, would be
submitted to the Respondent’s Steering Committee which con-
sisted of CEO Gilbert, the original PET team leaders, and the
vice-presidents.
Powell acknowledged that the Respondent was “in need of
change” but again requested negotiation of these changes.
Reymann offered the Union one position on the Steering
Committee. Powell asked Childs if the Union would have a
voting power equal to the Respondent on the Steering Commit-
tee, and Childs responded that the Union would have voting
status on the committee equal to only one participant, several of
which were managerial. Prior to the February 11, 1994 meet-
ing, the Respondent had not offered the Union a position on the
Steering Committee.3 In a letter dated February 16, 1994,
Childs informed Powell that the Respondent would not remove
bargaining unit members from the PET teams. Childs also
asserted that the PET process was not intended to avoid nego-
tiation or interfere with the Union as bargaining unit representa-
tive. He characterized it as an information gathering mecha-
nism intended to obtain efficiency, which will ultimately bene-
fit unit employees. He stated:

If at any time during the process a union employee feels that
we are asking them to do something they determine is inappro-

ifications by the Respondent.
3 The account of the February 11, 1994 meeting is based on the un-
controverted testimony of Powell and his contemporaneous notes,
which were not objected to nor challenged as to accuracy.
priate, they can decide to either refrain in that specific circum-
stances or decide to resign from participation in that process.

Childs also reinvited the Union’s participation, including
Steering Committee membership; i.e., on the basis of one vote
among several managerial votes and at will attendance at any
PET meeting that might be of interest to the Union or which
might be requested by an employee. He ended by suggesting
that the Union submit a written proposal “regarding improve-
ment of relations between the Union and the Hospital” to which
he would respond.
Thereafter, some employee PET participants resigned.
Childs testified that he had had more than one meeting with
the Union “leadership” regarding the PET process “and the fact
that there would be bargainable issues brought to the Union”,
and he acknowledged one of them as the meeting of February
11, Powell’s testimonial version of which he did not refute.
Childs testified without controversion that the 1992–1995
collective-bargaining agreement articles XXIII and XXIV
relieved the Respondent of the obligation to bargain with the
Union regarding changes in job descriptions to be decided on
by the Respondent. He testified that the collective-bargaining
agreement merely requires the Respondent to provide the
Union with notice of an intended classification change prior to
implementation in order to negotiate the wage rate for that
position, which wage rate is subject to grievance and arbitration
if negotiation fails. Childs testified that the Respondent has
historically made frequent unilaterally changed job descriptions
and many times the Union has grieved and arbitrated
unsuccessfully negotiated wage rates determined for those
changed class
Childs testified that over many years, there had been an
“overlapping of duties” between certain bargaining unit posi-
tions and nursing unit positions. He testified that overlapping
resulted in substantial discussions during the negotiation of the
collective-bargaining agreement article II, section 9. He testi-
fied that the ability of nonunit personnel to perform “various
functions” of the nursing units’ orderlies or nurse’s aides was
addressed and resulted in the agreement that their work could
be transferred to other nonbargaining unit personnel on condi-
tion that the total number of aides and orderlies never declined
below 19, “when it’s determined by the hospital to be medi-
cally, operationally or economically necessary to do so.” Dur-
ing cross-examination, relating to the alleged frequency of
overlapping nursing unit work functions, he admitted that he
had very little personal observation of such occurrences but that
he was aware of “job descriptions.” Also on cross-examination,
regarding his testimony relating to article II, section 9 of the
collective-bargaining agreement, he conceded that the section
prohibits the transferring of bargaining unit work performed by
the maintenance, dietary, housekeeping, and pharmacy classifi-
cations to nonunit personnel pursuant to Exhibit D of the col-
lective-bargaining agreement, which is referenced in article II,
section 9.
2. Analysis
The issue presented here is similar to that presented to me in
Simmons Industries, 321 NLRB 228 (1996), in which certain
employee participation teams were found to have constituted
labor organizations that were dominated, assisted, and sup-
ported by an employer. The analysis in that case is applicable
in large part to the strikingly similar facts of this case and states
in part as follows (id. at 252–253):

SUMMA HEALTH SYSTEM 1385
Both the General Counsel and Respondent have cen-
tered their arguments around the Board’s widely noted and
discussed decisions in Electromation, Inc., 309 NLRB 990
(1992), enfd. 35 F.3d 1148 (7th Cir. 1994); and E. I. du
Pont & Co., 311 NLRB 893 (1993), and numerous cases
cited and analyzed therein.
The facts in this case with respect to assistance and
domination are undisputed. If the employee participation
committees herein constitute labor organizations, then they
would most certainly constitute organizations dominated
and assisted by Respondent. These entities were created,
formed, funded, directed, and constituted by Respondent.
Their continuance is at the sufferance of Respondent.
Their employee membership depends on the method cho-
sen by Respondent, i.e., direct appointment by Respondent
as in the Safety Committees and Jay TQM Committees or
by election of coworkers at the Southwest City correction
ad hoc committees. Their functioning format and agenda
are determined by the Respondent.
The real issues here are whether these employee par-
ticipation teams are for all effective purposes de facto la-
bor organizations. As discussed in the Electromation case,
the concept of “labor organization” as contemplated by the
Act is extremely broad and includes very loose, informal,
unstructured, and irregular meeting groups. Such a loose
organization will meet the statutory definition if: (1) em-
ployees participate, (2) the organization exists, at least in
part, for the purpose of “dealing with” employers, and (3)
these dealings concern “conditions of work” or concern
other statutory subjects such as grievances, labor disputes,
wages, rates of pay, or hours of employment.

The Board added:

Further, if the organization has as a purpose the repre-
sentation of employees, it meets the definition of ‘em-
ployee representation committee or plan’ under Section
2(5) and will constitute a labor organization if it also
meets the criteria of employee participation and dealing
with conditions of work or other statutory subjects. [Elec-
tromation, Inc., supra at 994.]
The facts reveal[s] that all the employee participation
committees herein were designed by the Respondent to be
representational, i.e., to select a cross-section of employees
in the departments from which they were selected. With re-
spect to both safety and Jay Fast Food Committees, the em-
ployee members solicited the positions, conclusions, desires
and/or needs of coworkers and relayed them to the employer
agents on the committees and, in turn, by various methods
of minutes or reports to higher management on reaching a
consensus. [Electromation, Inc., supra at 994.]
Whether the Safety and all TQM Committees “dealt
with” the Respondent concerning work conditions is
where the difficulty of analysis begins.

In the instant case, I find the same undisputed facts of domi-
nation, assistance, and support. The apparent representational
nature of the process enhancement teams was cultivated by the
Respondent when it set forth the criteria for membership and
established an electoral nomination process. Employee mem-
bers formed a consensus as to recommendation, which they
took back to their constituency, i.e., coworkers from whom they
solicited support. Conditions of employment that the teams
discussed and negotiated proposed changes were more directly
impactive on working conditions than much of what the Sim-
mons case safety teams dealt with.
In the Simmons case, the employer argued that its commit-
tees were informational in nature. It argued that employee
participation merely provided a valuable source of information
necessary for it to make decisions as to operational restructur-
ing changes for efficiency and cost-cutting purposes. However,
the facts disclose that despite Childs’ oblique instructions of
unspecified form to unidentified persons not to deal with man-
datory bargaining subjects in sub-PET meetings, they did in
fact do so. Nothing could be more impactive on the bargaining
unit employees’ conditions of employment than that which the
sub-PET members proposed, discussed, and adopted by osten-
sible team consensus either freely or by managerial constraint,
e.g., consolidation of bargaining unit classifications, the trans-
fer of unit work out of the unit, and the reduction of bargaining
unit employees.
The Respondent does not in detail address the issue of
whether the sub-PETs constituted a dealing with those condi-
tions of employment between the Respondent and their sub-
PET employee representatives other than to assert in its brief
that they did not replace the collective-bargaining agreement
process.
In Simmons Industries, supra, at 254, I concluded that the
distinction is often unclear between permissible employer-
employee committee informational brainstorming about em-
ployment conditions under E. I. Du Pont, supra, and the im-
permissible “dealing with” which involves a “bilateral mecha-
nism” entailing a “pattern or practice in which a group of em-
ployees over time makes proposals to management, manage-
ment responds to these proposals by acceptance or rejection by
word or deed, and compromise is not required.” As stated in
Simmons Industries, supra at 253–254:

In the E. I. Du Pont case, the Board found a pattern of
dealing concerning safety in working conditions whereby
the employee committee members made proposals to
management in different ways. Sometimes proposals were
made to management representatives outside of the com-
mittee, which were responded to and corrected. At other
times, the committee discussed proposals with manage-
ment representatives within the committee proceedings.
The Board found that the employee and employer repre-
sentatives “interacted” under the rules of consensus deci-
sion-making whereby under management’s procedural
definition, all members of the group “were willing to ac-
cept a decision.” There, the management representatives
discussed proposals with employee representatives and
had the power to reject any proposal, which the Board
found constituted “dealing” just as if it had occurred be-
tween the committee as a whole and outside the committee
management.

This is precisely the factual situation herein. Although there
was no negotiation directly between the employee PET mem-
bers and the managerial Steering Committee to which the con-
sensus proposals were submitted for acceptance and implemen-
tation, there did take place an interactional exchange of propos-
als, a discussion, and a reaching of a consensus between mana-
gerial team participants. Compare EFCO Corp., 327 NLRB
372 (1998) (safety committee).
I conclude in this case, as in the Simmons case, that the em-
ployee participatory team process herein satisfied the E. I. Du
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1386
Pont definition of “dealing with” between representational
employees and the Respondent, whereby the maintenance sub-
PET and the Patient Management Pilot sub-PET constituted de
facto labor organizations with which the Respondent bargained
concerning mandatory subjects of bargaining, about which it
was obliged to bargain with the employees’ exclusive bargain-
ing agent.
The Respondent further defends that it is exculpated by vir-
tue of advance notice of the reingineering and PET process to
the Union and the subsequent invitation extended to it to be-
come an outvoted, single member of the multimanagerial popu-
lated Steering Committee. This defense is of no merit. A un-
ion’s waiver of its statutory rights must be clear and unmistak-
able and is not to be inferred from acquiescence in past unilat-
eral changes. See Wayne Memorial Hospital Assn., 322 NLRB
100, 104 (1996), and precedent cited and discussed therein.
The Union at no time waived its right to renegotiate mandatory
bargaining subjects. An invitation to the Union to surrender
that right by virtue of a debilitated role in the PET process and
the Union’s rejection of such offer cannot be construed as a
constructive waiver or a license for the Respondent to deal with
the de facto sham labor organizations created by that process.
The Respondent further contends in its brief that it was enti-
tled “to make changes in job descriptions unilaterally” by virtue
of articles XXIII and XXIV of the collective-bargaining agree-
ment. It thus concludes:

There can be no dispute regarding the fact that the
Process Enhancement Teams sometimes redrafted job de-
scriptions as part of the overall restructuring of Akron City
Hospital. In this respect, they may have encroached on is-
sues which would normally be the subject of collective
bargaining. However, given that the Union was provided
an opportunity to become involved in the process, and the
fact that the hospital retained the sole discretion to change
job descriptions under Article XXIV of the collective-
bargaining agreement, there has been no violation of the
Act.

Assuming that the Respondent was given contractual author-
ity to make unilateral decisions about matters dealt with by the
sub-PETS, nowhere in the contract does the Union waive its
right to act as the exclusive representative of the bargaining
unit employees nor did it agree that if the Respondent wanted to
deal with employees, it could do so directly or through other
representatives, which it may or may not dominate. It is mani-
fest that if an employer has been contractually ceded authority
to take certain unilateral actions concerning otherwise manda-
tory bargaining subjects, it may do so unilaterally, but that if it
desires interaction with the employees; i.e., desires bilateral
negotiation, it must deal with the exclusive bargaining agent
and not with de facto sham unions that it creates. If it is correct
in its contractual interpretation, the Respondent had only two
lawful choices: to act unilaterally as spelled out in the collec-
tive-bargaining agreement or to negotiate with the bargaining
unit’s exclusive representative, i.e., the Union.
Moreover, articles XXIII and XXIV of the collective-
bargaining agreement clearly give the Respondent the unilateral
right to change or to consolidate bargaining unit classification
but do not specify that the Respondent can unilaterally transfer
unit work to newly created nonunit classifications. Childs ad-
mitted this in cross-examination. Indeed, it is admitted that
Article II, Section 9 specifically protects listed specified bar-
gaining unit “departments and/or classifications” from a limited
right to transfer out bargaining unit work for reasons of medi-
cal, operational, or economic necessity.
Exhibit D of the collective-bargaining agent sets forth de-
partments and numerous classifications thereunder. Listed are
the following departments: Dietary, Laundry, Housekeeping,
Maintenance, Central Service, Operating Room, Rehabilitation
Services, Transportation, Pharmacy, Receiving, X-Ray, Distri-
bution, Ambulatory Care Clinic, Special Diagnostic, and Treat-
ment Center South.4
The sub-PETs dealt with and made proposals, some of which
were implemented beyond consolidation of unit classification
but rather extended to the transfer of bargaining unit work from
those departments and classifications to nonunit classifications
for reasons of desirability, not demonstrated necessity. Thus,
the collective-bargaining agreement cannot be cited by the
Respondent as a license to negotiate directly with employees
the transferring-out of bargaining unit work. No reasonable
interpretation of the collective-bargaining agreement gives the
Respondent that right. Hospital Episcopal San Lucas, 319
NLRB 54, 56 (1995). Compare Trojan Yacht, 319 NLRB 741,
743 (1995), and NCR Corp., 271 NLRB 1212 (1984), discussed
therein. See also Conoco Inc., 318 NLRB 60, 63 (1995).
Accordingly, I find that the Respondent violated Section
8(a)(1) and (2) as alleged in the complaint by dominating, inter-
fering with the administration of, assisting and supporting the
maintenance sub-PET team and the Patient Management Pilot
Unit sub-PET teamlabor organizations within the meaning of
the Actbetween about January 21, 1994, to about June 1995.
I further find that the Respondent violated Section 8(a)(1)
and (5) of the Act in bypassing the employees’ exclusive bar-
gaining representative and dealing directly with employees in
the PET process concerning mandatory subjects of bargaining.
E. I. Du Pont & Co., supra, Hospital Episcopal San Lucas,
supra.
C. Transfer of Bargaining Unit Work to Nonbargaining
Unit Employees
1. Facts
After the PET teams recommended and the Steering Com-
mittee approved the job descriptions created by the Patient
Management Pilot Unit sub-PET teams for RN-Care Coordina-
tor, Technical Associate, Support Associate, and Administra-
tive Associate containing universal duties, and after the Main-
tenance sub-PET team recommended and the Steering Commit-
tee approved the transfer of certain maintenance work to non-
bargaining unit employees, the Respondent commenced train-
ing employees in these job functions. Specifically, in late 1995
and early 1996, the Respondent conducted “cultural classes,”
wherein employees were taught new job skills. RNs, LPNs.
Respiratory and Physical Therapists, X-Ray Technicians, and
Support Associates were trained how to clean beds and bath-
rooms, mop floors, pass trays, and transport patients. They

4 In his testimony, Childs characterized Exh. D as a “classification
list, not a department list.” The plain unambiguous language of art. 9
states in relevant part:
This work customarily performed by the bargaining unit employees
shall be transferred to hospital nonbargaining unit employees when it
is determined by the hospital to be medically operationally, or eco-
nomically necessary to do so. This language shall not affect or be
used in the attached departments and/or classification listed by Exh. D
of the agreement. [Emphasis added.]
SUMMA HEALTH SYSTEM 1387
were educated as to cleaning solutions and the contents of
housekeeping carts. Maintenance dutieshow to use a plunger
to clear stopped-up toilets/sinks, how to change a light bulb,
how to change thermostatswere demonstrated. LPNs and
RNs were also trained how to draw blood for twice-daily blood
rounds. Some were supplied with small maintenance kits con-
taining basic mechanic tools.
Prior to these training classes, different hospital departments
performed all of these functions:

Dietary Aides (Dietary Department): Generated
menus, passed out and collected meal trays.
Transportation Aide (Transportation Department):
Transported patients from floors to other locations
throughout the hospital.
Phlebotomists: Performed twice-daily blood draws on
all patients.
Maintenance Department: Performed maintenance re-
pair, unclogged stopped-up sinks/toilets, changed light
bulbs, changed thermostats in patients’ rooms.
Housekeeping: Cleaned patients’ rooms, beds, and
bathrooms.
Nurse Aides: Performed rounds of vital checks for
each patient.

Bargaining unit employees had performed all of these duties.
On consequence of the PET process, the Respondent created a
Patient Care Support Associate classification as a new bargain-
ing unit classification by combining the jobs of nurse aides,
housekeeping, transportation, and dietary aides. Despite the
creation of this classification, however, RNs, LPNs, respiratory
and physical therapists and unit secretaries were trained to per-
form all of the job functions of the new support associate, pur-
suant to their “universal duties.”
After cross-training, RNs, LPNs, respiratory therapists,
physical therapists, and unit secretaries began performing bar-
gaining unit work on a routine and regular basis. These non-
bargaining unit classifications began performing all the job
duties for which they had received training, including patients
beds, rooms, transporting patients, generating menus, passing
trays, changing thermostats, drawing blood, changing light
bulbs, unstopping clogged sink/toilets, and doing light mainte-
nance.
Prior to cross-training, nurses and LPNs, except for a rare
emergency, never cleaned patients’ rooms, beds, or bathrooms;
never performed light maintenance; never performed daily
blood drawing previously performed by Phlebotomists; and
rarely generated menus, passed trays, or transported patients.
In the summer of 1994, Local 684 received a copy of a PET
document containing draft job descriptions for new posi-
tionsPatient Care Support Associate, Administrative Associ-
ate, Technical Associate Physical Therapist, Technical Associ-
ate LPN, and RN Care Coordinator. Each job description con-
tained language under description of work, which indicated
each position was responsible for carrying out “multi-functional
activities” (i.e., universal duties) such as environmental, die-
tary, transporting, supplies, and light maintenance activities.
Powell, Local 684 president, became concerned because their
duties were bargaining unit duties and yet they were now con-
tained in job descriptions for nonbargaining unit employees.
Powell immediately asked to meet with ACH Director of Re-
sources Paul Jackson. Powell and Damron met with Jackson
sometime in July 1994 when Powell confronted Jackson with
copies of the draft job descriptions. He explained that he had
received copies of the descriptions from a PET team member and
after reviewing them, he had become concerned about the trans-
fer of bargaining unit work to nonbargaining unit employees.
Jackson admitted that the descriptions were a product of the
PET process. Powell asked Jackson to bargain over the transfer
of bargaining unit work to nonbargaining unit classifica-
tionsspecifically, Powell requested to bargain over the de-
scription of universal duties. Jackson refused and indicated that
the hospital had the unilateral right to change job descriptions.
A subsequent meeting was held on August 5, 1994. Present
for the Respondent were Paul Jackson and Karen Casteel. The
Respondent’s representatives told Powell that the Patient Care
Support Associate was going to be a bargaining unit job. Pow-
ell asked Jackson if the Respondent was willing to negotiate the
Patient Care Support Associate job description. Jackson re-
fused to negotiate over the combination of bargaining unit jobs
into the Patient Care Support Associate position5 as well as the
bargaining unit work transferred to nonunit classification.
The record is clear that as a result of the reengineering and
PET process, through which the Respondent sought to reduce
staff by expanding the job duties normally performed by existing
hospital classifications, the hospital created new classifica-
tions/job descriptions for the positions of RN care coordinator;
technical associate (for LPN, respiratory therapy and physical
therapy); support associate and administrative associate. There is
no dispute that these job descriptions contain “universal du-
ties”the effect of which is to make it an assigned function of
the job of a RN, LPN, administrative associate, physical thera-
pist, and/or respiratory therapist to include patient support duties
such as: transportation, dietary, supplies, and light maintenance.
It is also undisputed that historically this work had been bar-
gaining unit workperformed by transportation aides, nurse’s
aides, orderlies, dietary aides, housekeepers, phlebotomists, and
maintenance personnel. At the start of the reengineering proc-
ess to the date of the trial, the bargaining unit employment de-
clined from 510 members to 380.
2. Analysis
The Respondent’s argument that it was justified in moving
unit work to nonunit persons and positions is premised upon an
assertion of fact not supported by record evidence and upon a
claim of contractual right unsupportable by any reasonable
contractual interpretation. The Respondent argues that nurses
have “traditionally changed light bulbs and have occasionally
transported patients to labs or other areas.” As found above,
such functions had never been performed as a routine nursing
duty but were isolated in nature and occurred to accommodate a
rare instance of emergency caused by the absence of the bar-
gaining unit employee and the need for immediate action.
As cited above, the Union’s toleration of such isolated epi-
sodes, even if known to it, cannot support an inference of
waiver of its duty to conserve bargaining unit work, nor much
less an agreement by it to establish the routine performance of
bargaining unit work in consequence of a diminution of bar-
gaining unit employees.
Respondent next argues that article XXIII and article XXIV
of the collective-bargaining agreement accord to it “the right of
the Hospital to unilaterally create and change job classifica-

5 The Acting General Counsel does not allege that the Respondent
failed to negotiate with the Union over the combination of bargaining
unit classifications into the patient care support associate position.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1388
tions.” It argues that it therefore had the right “to transfer bar-
gaining unit work to nonbargaining unit employees, provided
that the number of bargaining unit employees within the classi-
fication aides or orderlies did not fall below a pre-set level,”
citing the testimony of Childs and the union president. How-
ever, as found in the foregoing section of this decision, articles
XXIII and XXIV clearly, as conceded by Childs in cross-
examination, are restricted to the creation of new bargaining
unit positions and intraunit transfers, and not to out unit per-
sons. In his cross-examination, the union president protested
that by the new practice, “that the hospital was going in went
well beyond” the rights given to it in the contract. Childs’ tes-
timony cited article II, section 9 of the collective-bargaining
agreement, also discussed in the foregoing section of this deci-
sion. No reasonable interpretation of that collective-bargaining
agreement section supports the Respondent’s position.
Article II, section 9 of the collective-bargaining agreement
specifically prohibits the transfer of bargaining unit work per-
formed by classifications listed in Exhibit D of the collective-
bargaining agreement to nonunit employees, including the work
performed by: “Housekeeping, Maintenance, Transportation
Aide, Distribution Aides (supplies), Dietary Aides and IV
Technician (phlebotomist).” Similarly, article II, section 8
provides that work customarily performed by employees in the
bargaining unit shall not be performed by supervisors or other
personnel. I therefore find that the Respondent refused to bar-
gain over a unilateral change in the terms of the parties’ collec-
tive-bargaining agreement by refusing to bargain in good faith
with the Union over the transfer of maintenance, dietary,
housekeeping, transportation, distributions (supplies), and
phlebotomy duties to nonbargaining personnel in violation of
Section 8(a)(1) and (5) of the Act as alleged in the complaint.
Pine Brook Care Center, 322 NLRB 740 (1996). E. I. Du Pont
Co., supra.
D. October 1995–April 1997 Bargaining
1. Facts
(A) At various times during October 1995 to April 1997, Re-
spondent Summa Health Systems, Inc., AFSCME Local 684,
and Ohio Council 8 met for the purposes of collective bargain-
ing with respect to wages, hours, and other terms and condi-
tions of employment of the unit.
(B) During the time period described above, Respondent
Summa Health Systems, Inc. advanced and adhered to the fol-
lowing proposals: article I, section 2—Respondent Summa
Health Systems, Inc. would have the sole, exclusive and non-
reviewable right to transfer to another job classification, within
or outside the bargaining unit, any and all work at any time;
article II, section 2—Respondent Summa Health Systems
would be able to work nonunit part-time employees over 40
hours per week with no limitations; article II, section 9—would
permit Respondent Summa Health Systems, Inc. to transfer
bargaining unit work to nonbargaining unit employees when-
ever it deemed necessary; article XXV—would give Respon-
dent Summa Health Systems, Inc. the ability to unilaterally
determine wage increases in the second and third year of the
contract.
(C) By its overall conduct, including the conduct described
above in paragraph 28(B), Respondent Summa Health Systems,
Inc. has failed and refused to bargain in good faith with
AFSCME Local 684 and Ohio Council 8 as the exclusive col-
lective-bargaining representative of the unit.
The Respondent’s answer categorically denied the entire
paragraph, but the facts are essentially undisputed that during
numerous collective-bargaining negotiation meetings over the
entire period, the Respondent did in fact make and insist upon
the alleged demands.
The Acting General Counsel’s theory of violation, as argued
in his brief, is not as Respondent argues in his brief, that such
proposals are per se bad faith. Rather, he and the Union argue
that in the context of bargaining that occurred, adherence to
these proposals evidenced an intent to avoid reaching agree-
ment.
With respect to any conflict in testimony regarding these ne-
gotiations that exist, and they are by and large very limited, I
credit the union negotiators who evidenced greater independ-
ent, detailed, less generalized recollective ability and less reli-
ance upon documentation than did the Respondent’s negotia-
tors, particularly litigator/witness Attorney Kurek who relied
upon after-the fact pretrial summarizations to prompt his recol-
lection. Childs’ testimony as to negotiations was too brief and
conclusionary to be of much probative value.
Negotiations for a successor contract to the 1992–1995
collective-bargaining agreement began on October 23, 1995.
Ron Janetzke, Special Counsel to the president of AFSCME
Ohio Council 8, served as the Union’s chief negotiator from the
start of negotiations until he retired in 1996. He was succeeded
by Larry Stump. There were approximately 26 negotiating
meetings held between October 23, 1995, and July 30, 1996.
The last bargaining session Janetzke attended was July 30,
1996. Larry Powell, Eugene Damron, and Larry Stump, staff
representative for Ohio Council 8, were also members of the
Union’s negotiating committee. Several bargaining unit
employees acted as obs

ervers.
Attorney James Kurek served as the Respondent’s lead nego-
tiator throughout negotiations. Paul Jackson, director of labor
relations, and Natalie Stemple, a manager in the nursing area,
were also members of the Respondent’s negotiating team.
Subsequently in negotiations from May 1966 through July
1996, the parties’ chief negotiators met without their respective
committees. John Childs also attended the May through July
1996 negotiating meetings.
By letter prior to the start of negotiations, Kurek proposed
negotiation ground rules, which had been utilized in prior nego-
tiations, and Janetzke verbally acquiesced. The ground rules
provided that tentative agreements were to be initialed by rep-
resentatives of parties at the meeting wherein the agreement is
reached or the next scheduled meeting.
At the first meeting held on October 25, 1995, the parties ex-
changed complete contract proposals except wage proposals.
The Respondent’s initial proposal contained new language in
the management-rights’ clause at article I, section 2, which read
as follows:

Section 2. As part of the foregoing management
rights, the Hospital shall have the sole, exclusive and un-
reviewable right to subcontract to an outside vendor or to
transfer to another job classification either within or out-
side the bargaining unit any and all work at any time when
the Hospital, in its sole and exclusive discretion, deter-
mines that such subcontracting and/or transfer is in the
best interest of the Hospital, notwithstanding any other
provisions set forth in this agreement.

SUMMA HEALTH SYSTEM 1389
Janetzke feared that by this proposed addition to Article I, the
Respondent would have the sole and unreviewable right to
transfer bargaining unit work out of the unit and thus would
have the ability to dissipate the bargaining unit. At the bargain-
ing table, Janetzke expressed the Union’s concern many times
during the course of negotiations. Article I, section 2, with
respect to the transfer of work out of the unit, never changed
through the course of negotiations up to the strike.6
Prior to the start of formal negotiations, the parties had met
and discussed various issues. In these meetings, Kurek in-
formed the Union that the Respondent wanted the right to trans-
fer and assign work out of the bargaining unit to wherever
management felt it was necessary. At the first negotiating ses-
sion, the Respondent failed to explain why such a proposal was
necessary and the Respondent’s negotiators gave no detailed
justifications for the proposal except to make generalized refer-
ences to “flexibility” and consistency with nonunit employees,
and “competition.” However, there was no discussion of the
relationship of competition to the Respondent’s specific pro-
posals.
The Respondent’s initial proposal struck existing language
from article II, section 2, which had constituted a restriction on
the Respondent’s ability to utilize nonbargaining unit part-time
employees in bargaining unit work. Pursuant to this contract
language, the hours worked by part-time employees could not,
without economic penalty, exceed a ratio of 25 percent part-
time paid hours to 75 percent full-time paid hours. The Union
considered this ratio to be a job security measure for bargaining
unit members. Janetzke was concerned that by striking the
ratio, the Respondent’s proposal would enable the hospital to
work part-time employees without limitation. Later in contract
negotiations, during the time when Kurek, Childs, and Janetzke
met alone, Kurek and Childs informed Janetzke that the Re-
spondent wished to be able to work part-time employees in
excess of 40 hours. The only justification the Respondent ne-
gotiators gave for deleting the protective language in article II,
section 2 was the Respondent’s desire for flexibility to use part-
time employees whenever and wherever the Respondent felt
they were needed.
The Respondent’s initial proposal also struck language in ar-
ticle II, section 9 of the collective-bargaining agreement which
qualified or restricted the Respondent’s ability to transfer bar-
gaining unit work to nonbargaining unit employees. As dis-
cussed in the foregoing section of this decision, Exhibit D at-
tached thereto protected a vast array of departments and job
classifications from unit work dissipation. Janetzke feared the
loss of such protection and ultimate dissipation of the bargain-
ing unit entirely. In defending their proposal, the Respondent’s
negotiators reiterated their generalized need for “flexibility”
and unfettered discretion to transfer work out of the unit.
At the October 31 meeting, the Union indicated that its major
issues were layoff recall, job duty changes, use of part-timers,
use of enhancement teams, and transfer of unit work. Janetzke
reiterated the Union’s concerns with their proposal’s impact on
job security. The Union was willing to consider split shifts to
keep full-time employees employed rather than have the hospi-
tal hire or use part-time employees. The Union was also will-
ing to modify the existing layoff procedure so the hospital
could retain part-time employees even when full-time employ-

6 Art. I, sec. 2, as originally proposed, also referred to subcontract-
ing. Later in negotiations, subcontracting was contained in art. I, sec. 3.
ees were to be laid off. At the close of the session, the Union
reiterated willingness to make changes but emphasized its “2
big issuesfear of unilateral changes by the Employer and job
security for members.”
The parties’ next negotiation session was November 2, 1995.
During this session, the parties reached tentative agreement on
two housekeeping matters. The tentative agreements were
initialed and dated by Kurek and Janetzke pursuant to ground
rules.
At the next meeting on November 3, 1995, the Union pre-
sented its first wage proposal for a 4-percent wage increase in
the first year of the contract and a 3-percent wage increase in
the second and third year of the contract.
The parties met again on November 13, 1995. The Respon-
dent gave the Union its first written counterproposal since bar-
gaining began. The counterproposal dealt with subcontracting.
The Respondent offered no wage proposal.
The parties met again on November 14, 1995. The Union’s
counterproposal on subcontracting was given to the Respon-
dent. However, no wage proposal was given to the Union.
On November 17, 1995, the parties discussed drug testing,
layoff and recall, and the bargaining unit recognition clause.
No wage proposal was given to the Union by the hospital.
On November 21, 1995, the Respondent presented its wage
proposal, which offered a wage increase of 3 percent in the first
year if agreement was reached by November 22, 1995. The
Respondent proposed that in the second and third year, bargain-
ing unit employees would receive a wage increase in a percent
equal to the base increase given to all other nonmanagement
employees that year. At the meeting, Janetzke informed Kurek
that the Union could not permit the Respondent to set bargain-
ing unit employees’ wages and that no self-respecting union
would do so. Kurek told Janetzke that the Respondent wanted
uniformity. He explained that the Respondent wanted to treat
nonbargaining unit employees and unit employees in the same
manner when deciding the level of wages and benefits.
Church’s explanation was no more explicit than that the hospi-
tal industry was going through unspecified changes and the
Respondent wanted the right to set wages unilaterally. Janetzke
asked if equity adjustment given to management employees
would be given to bargaining unit employees. Janetzke asked
for history of wage increases to non-management level em-
ployees, which Kurek did not have but indicated he would pro-
vide.
At this session, the Respondent also made an initial proposal
to maintain the enhancement teams (PET teams) with the uni-
lateral right to appoint members of the teams.
The parties met again on November 22, 1995. The Respon-
dent gave the Union a history of nonbargaining unit wage in-
creases compared to unit increases. The history indicated that
in 2 years from 1989 to 1995, the Union negotiated higher in-
creases than was given to other nonmanagement level employ-
ees. When Janetzke asked why Summa was asking the Union
to give up its right to bargain over wage increases, Kurek re-
plied only that the hospital would give unit employees the same
increase it gave “throughout [the] Hospital.” Janetzke pointed
out the hospital could give a 0-percent increase. Janetzke then
countered with a proposal for a wage reopener. Kurek rejected
this proposal because of the cost.
In the meeting, the Union also countered the hospital pro-
posal on design and work teams. The Union agreed to their
existence, asked for union participation and communication,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1390
and asked for assurances that the team would not discuss man-
datory subjects of bargaining or change the labor agreement.
With the expiration of the collective-bargaining agreement,
the Respondent gave the Union notice that it was terminating
the dues check-off and union security provisions of the bargain-
ing agreement.
The parties met again on December 4, 6, and 14, 1995, with
no movement on articles I, section 2; article II, sections 2 and
9; or wages.
At the December 15, 1995 meeting, the Union offered a
counterproposal to the Respondent on article I, section 2, Man-
agement Rights. Under this proposal, the Union ceded to the
Respondent sole, exclusive, and unreviewable right to transfer
bargaining unit work within bargaining unit classifications.
The Respondent rejected the Union’s proposals.
In addition to deleting protective language from article II,
section 9, with respect to classifications listed in Exhibit D of
the contract, the Respondent proposed new language in article
II, section 9. The Respondent proposed in the first paragraph of
that Article that it would have the ability to temporarily assign
bargaining unit employees to nonbargaining classifications at
any Summa location but nonbargaining employees could be
temporarily assigned to bargaining classifications without be-
coming a part of the bargaining unit. Janetzke concluded that
this new language would enable the Respondent to temporarily
assign nonbargaining unit employees to bargaining unit posi-
tions without including them in the unit.
At the December 18, 1995 meeting, the Union offered the
Respondent a counterproposal on article II, section 9 which
would given the Respondent some flexibility in the temporary
assignment of employees. Janetzke explained that this proposal
would enable the Respondent in emergency situations to tem-
porarily assign full-time bargaining unit employees’ duties to
nonbargaining unit duties. The Union’s proposal also stated
that the temporary assignments would be limited to 30 days,
whereas the Respondent’s initial proposal had no time limit for
the length of the temporary assignment. There was no agree-
ment reached at this meeting with respect to article II, section9.
Throughout negotiations, the Respondent consistently took the
position that they wanted to hire as many part-time employees
as needed in bargaining unit classifications and to work them in
excess of 40 hours.
The parties met again on December 19 and 21, 1995; January
22, 26, and February 8, and 15, 1996, without reaching agree-
ment on any issues. On January 26, 1996, the Union proposed
a meeting between Summa’s legal counsel, John Childs;
Janetzke; Kurek; and William Endsley, Ohio Council 8’s presi-
dent, to discuss the status of negotiations and the Respondent’s
intentions.
On February 16, 1996, the parties met again for negotiations.
The sides discussed use of part-time employees by the hospital.
The Respondent’s spokesperson stated that the Respondent
wanted the right to hire as many part-time employees as it
wanted and work them as many hours as it wanted.
In the 7 months from the start of contract negotiations up to
May 1996, when Janetzke, Childs, and Kurek began to meet
without the bargaining committees, the Respondent made no
forward movement on any of the four contract proposals at
issue in this matter. The last meeting with full committees
occurred on March 28, 1996. Janetzke complained that union
officials discussed the fact that negotiations were not progress-
ing and that something had to be done to move the process
along. The Union proposed the idea of Janetzke meeting alone
with Childs. Eventually, the parties came to agreement and
Childs, Kurek, and Janetzke began to meeting without the full
committees on May 21.
At a meeting held on June 14, 1996, Janetzke gave Kurek
and Childs a proposal covering various sections of article II,
including section 9. Janetzke testified that his proposal in-
tended to give the Respondent the right to make temporary
assignments. Janetzke’s proposal on article II, section 9 added
language to protect bargaining unit employees assigned to non-
bargaining unit positions, such as continuation of contract cov-
erage for those employee. There was no agreement between
the parties on Janetzke’s June 14 proposal.
In this June 14 proposal, Janetzke attempted to address the
Respondent’s concerns with the use of part-time versus full-
time employees in bargaining unit jobs. At article II, section 5
of the June 14 proposal, Janetzke proposed that the ratio of
part-time employees to full-time employees in bargaining unit
jobs remain the same as it was at that time for the duration of
the contract. Janetzke’s proposal contained some exceptions.
At the July 16, 1996 meeting, the Respondent gave the Un-
ion its first written proposal since November 22, 1995. The
proposal reflected no change from the hospital’s original pro-
posed language in article I, management rights with regard to
transfer of bargaining unit work. In this regard, the hospital
maintained the sole, exclusive, and nonreviewable right to
transfer bargaining unit work to nonunit classifications at its
sole and exclusive discretion, notwithstanding any provision of
the agreement. The Respondent had proposed more discretion
in the employment of part-time employees. In an apparent
concession, the Respondent accepted the Union’s suggested
change regarding the ratio of part-time to full-time employees
and to the creation of split shift for full-time employees, but
only at its sole discretion. However, other Respondent propos-
als ceding to it wide discretion nullified these apparent conces-
sions. The Respondent adhered to its initial wage proposal.
Janetzke responded by accusing the Respondent of engaging in
sham bargaining inasmuch as its proposal would permit it to
classify employees as part-time but yet work them on a full-
time basis, which would ultimately dissipate the bargaining
unit. The Respondent’s negotiators reiterated a need for ge-
neric “flexibility.”
At the July 23, 1996 meeting, Janetzke tendered to Kurek
and Childs a proposal which somewhat ameliorated the abso-
lute discretion sought by the Respondent regarding the transfer
of unit work but yet did grant to the Respondent some
accommodation. The qualification sought by the Union was
that the transfer decision not be “non-reviewable,” that the
Union be given prior notice, and that the decision to transfer
out unit work be grievable as to the issue of placement of the
recipient employees in or out of the unit. Alternatively, the
Union sought acknowledgment of its right to file a timely unit
clarification petition with the Board. The Respondent’s
negotiators had several times rejected the grievablity aspect on
the grounds of a feared proliferation of a grievance and
litigation. Janetzke pointed out that his proposal would permit
the Respondent to implement its decision and that reviewability
was after the fact of implementation. The proposal was again
rejected out of hand. The Respondent insisted on the right to
act without litigation or review.
At the meeting, Janetze announced what he characterized to
the Respondent’s negotiators as a major concession by the Un-
SUMMA HEALTH SYSTEM 1391
ion on the wage issue. He proposed an up-front first year wage
increase of 6 percent in return for acquiescence to the Respon-
dent’s demand for discretionary wage raises in the second and
third years. Janetzke testified that he made this concession to
“test” the Respondent. He told the Respondent’s negotiators
that if the Respondent wanted the right to unilaterally determine
wages, they would have to pay a price for it. They responded
that the Respondent would not pay that price. A union offer of
the same deal but a 5-percent increase was later offered and
also rejected in a subsequent meeting.
Janetze protested that the Respondent was unlawfully nego-
tiating to impasse an adamant insistence upon the unilateral
right to set wages, hours, and terms and conditions of employ-
ment, and that the Union waive its statutory rights to Board
redress.7
On July 30, 1996, Kurek, Childs,, and Janetze met for the
last time. Initially, the Respondent answered the Union’s coun-
terproposals presented on July 23, 1996. The Respondent
maintained its position with respect to article I, section 2; arti-
cle II, sections 2, 5, and 8; layoffs under article XVII; article II,
section 9; and wages. Janetzke presented yet another
counterproposal on article I, section 2, management-
rights/transfer of unit work, limiting the Union’s right to grieve
or petition the Board to include in the unit part-time employees
performing work on an average of 40 hours per week “over an
extended period of time.” This proposal was also rejected on
the grounds of feared grievance proliferation.

At the close of negotiations on July 30, 1996, Janetzke made
the Respondent one final oral proposal. The Union proposed:

1. Its new language in article, section 2;
2. Agreement on article II, sections 8 and 9, provided
the Union was given its language in article I, section 2;
3. Agreement to the hospital’s hospitalization pro-
posal, provided a 5-percent wage increase;
4. Agreement to the hospital’s unilaterally setting
wage increase in years 2 and 3 of the collective-bargaining
agreement, provided the hospital guarantee a 5-percent
wage increase in year 1.

Kurek responded to this offer by saying that the hospital
“will consider and respond with a comprehensive final offer.”
No tentative agreements were reached, signed, or initialed be-
tween the parties.
On August 11, 1996, Janetzke received the Respondent’s fi-
nal proposal. Janetzke compared the final proposal with the
Respondent’s July 30 proposal. On the subject of the unre-
stricted right to transfer bargaining unit work out of the bar-
gaining unit as proposed by the Respondent in article I, section
2, the Respondent’s final proposal did not change. The Re-
spondent did not move or change its position on the various
articles proposed to give it the ability to utilize part-time em-
ployees more than 40 hours per week as nonbargaining unit
employees, as well as unilateral discretion regarding light duty
assignments, determination of work shifts, reassignment of
7 The Acting General Counsel did not argue that the Respondent’s
refusal to explicate the Union’s right to the Board's unit clarification
process in the collective-bargaining agreement amounts to a demand
for a union waiver of such rights. Kurek testified without contradiction
that he explained to Janetzke that he sought no such explicit waiver.
Janetzke admitted that Childs explicitly disclaimed that the Respondent
was seeking such a waiver.
employees whose jobs had been abolished to avoid bumping,
and changes in reassignment policy.
As agreed between the parties, Janetzke presented the Re-
spondent’s final offer to the membership for a vote conducted
at special membership meeting on August 22, 1996, at 10 a.m.
and 7 p.m. The membership discussed the offer and vote to
ratify or reject. Janetzke, Powell, Stump, Damron, and other
Local 684 officers were present at both meetings.
Janetzke presented the hospital’s final offer to the member-
ship. Janetzke discussed each of the hospital’s proposal and
talked about problems that the Union had with the proposals
and whether or not the Union could recommend them. Janetze
discussed, inter alia, the Respondent’s article I, section 2 pro-
posal, the wage proposal, and the proposed use of part-time
employees at the hospital. Janetzke and Stump described the
nature of an unfair labor practice strike. The membership at
both meetings was informed about the issues of unfair labor
practice charges that the Union had already filed with the Na-
tional Labor Relations Board and told that the Union would be
filing additional charges over the Employers failure to bargain
in good faith. Janetzke told them “we have an unfair labor
practice strike.”
Members at both sessions were read a series of three resolu-
tions that had been prepared by Janetzke. The resolutions
called for the rejection of the final offer. The membership
voted on three resolutionsthe Employer’s final proposal,
whether the Union should seek further negotiations, and
whether to authorize an unfair labor practice strike. The mem-
bership voted overwhelmingly to reject the Employer’s final
proposal. The combined tally of the two meetings resulted in a
215 to 1 vote to reject the contract. By an equally large margin,
the membership at both meetings voted to seek further negotia-
tions with the Respondent and authorized the Union to strike if
necessary. Resolution 3 sets forth the reasons for the strike
authorization. Those reasons included the pending unfair labor
practices against the Respondent and possible unfair labor prac-
tices to be filed with the Board, including an alleged refusal-to-
bargain in good faith.
Stump informed Paul Jackson the day after the vote, in writ-
ing, that the membership had rejected the Respondent’s final
proposal. Stump suggested dates on which the parties could
resume contract negotiations. When negotiations resumed in
late August or early September 1996, Stump served as the Un-
ion’s chief negotiator, succeeding the retired Janetzke. At this
first meeting, Stump made clear the concerns the membership
had about the Respondent’s last proposal. The discussion in-
cluded the Respondent’s proposals allowing it to transfer bar-
gaining unit work to nonbargaining unit employees and use of
part-time employees in excess of 40 hours per week.
At the September 3, 1996 meeting, Stump presented the Re-
spondent with a comprehensive outline of the membership’s
concerns expressed at the membership meetings that preceded
the vote, which resulted in the overwhelming rejection of the
Respondent’s final offer. The outline discussed the member-
ship’s concerns with each article in the Respondent’s final pro-
posal.
At the parties next session on September 12, 1996, the Union
presented the Respondent with a written proposal on all out-
standing Articles. Much of the proposal seeks to return to cur-
rent contract language. With the exceptions of wages, the Un-
ion’s proposal did not seek any gains, but only sought to coun-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1392
counter the Employer’s proposed concessions contained in its
final offer.
During these sessions, Kurek complained that the Respon-
dent and the Union had reached tentative agreement on all is-
sues but three as of the July 30, 1996 meeting between
Janetzke, Childs, and Church, and now Stump was returning to
“square one.” The Union maintained that no tentative agree-
ments were reached and any agreements were part of a package
deal.8 Stump pointed out to Kurek that no tentative agreements
had been reached unless they had been initialed and submitted
jointly to each other.
The parties met on September 26 or 29, 1996, with Federal
Mediator David Thorley. The Union proposed through the
mediator that all open issues be submitted to interest arbitration
which, according to the Union, exceeded what the Respondent
had been contending had been tentatively agreed; i.e., there had
been no tentative agreements but for two or three. The Re-
spondent maintained its position that as of July 30, 1996, tenta-
tive oral agreement had been reached on all but the “big three”
issues of article I, section 2–Work Transfer; article II, section
4–Creation of New Positions; and article XXV–Wages. Fur-
ther, its contention was that the Union reopened all the other 40
agreed-upon issues on September 12, 1996. It then concluded
that it was unreasonable for an arbitrator to resolve “more than
forty open issues” but agreed to submit the afore-described “big
three” issues to interest arbitration. That position was stated in
its counterproposal dated October 28, 1996, and presented at
the meeting of that date. At the same meeting, Stump presented
a letter to the Respondent, which announced the termination of
the collective-bargaining agreement and notification of a strike
to commence midnight on November 7, 1996, characterized
therein as a result of the Respondent’s unfair labor practices.
The strike commenced as announced and continued until Feb-
ruary 3, 1997.
While some meetings were held between the parties during
the strike, discussions focused primarily on the possibility of
binding arbitration of contractual issues and the settlement of
the strike. During the time period of the strike, there was no
agreement on any contract proposals.
Stump received a letter from Kurek dated November 21,
1996. The second page of the letter indicated that the Respon-
dent was modifying its wage proposal. The proposal was modi-
fied to account for the fact that a year had passed in contract
negotiations. Thus, the Respondent’s wage proposal in the
November 21 letter referenced a 2-year instead of a 3-year
contract. The Respondent sought the ability to set the wage
rates in the second year of the contract. This was the first writ-
ten proposal the Union had received from the Respondent on
the subject of wages since contract negotiations resumed after
rejection of the final offer.
The parties met again to negotiate on January 17, 1997. At
this meeting, the Union offered through the mediator a written
counteroffer to its own offer dated September 12, 1996. The
proposal modified the Union’s position on the calculation of the
existing part-time to full-time ratio, temporary transfers, hours
of work, wages, subcontracting, and duration. Kurek testified
that the Respondent did not consider it to be sufficient move-

8 Kurek’s testimony as to what had been tentatively agreed to orally
and when was extremely nonspecific. Childs’ much briefer testimony
was even more conclusionary. Janetzke’s more detailed, convincing
testimony establishes that no such oral agreements were made.
ment. The parties then discussed the Respondent’s announce-
ment of the reduction of 60 bargaining unit positions due to
declining staffing requirements, 56 of which had been occupied
prior to the strike.
On January 29, 1997, the parties entered into a written strike
settlement agreement. The strike settlement agreement pro-
vided, in part, that the parties would enter into a period of nego-
tiations for 60 days, ending on March 31, 1997. If the parties
were not able to reach agreement during that time on five issues
selected by the Union and set forth in the strike settlement
agreement, these unresolved issues would be submitted for
interest arbitration to the Federal Mediation and Conciliation
Service. Two of the five issues are proposals that are the sub-
ject matter of the complaint. The parties agreed to submit
transfer of work out of the bargaining unit and the use of part-
time employees under the contract. Other issues to be submit-
ted to the arbitrator were: subcontracting bargaining unit work,
layoff and recall, the attendance/tardiness policy, and certain
pending grievances.
At the February 11, 1997 negotiation meeting, the Respon-
dent presented its first comprehensive written counterproposal
since its final proposal in August 1996. The Respondent did
not change in any respect its proposed article I, section 1—
management-rights unilateral transfer of unit work; article II,
section 2—use of part-time employees over 40 hours a week;
article II, section 5–part-time ratio to full-time except in the
event of a layoff, in conjunction with article XXV—use of
unlimited part-time employees during layoff; article II, section
9. The hospital did modify its wage proposal to reflect a 3-
percent wage increase in year 1 and year 2, but with the unilat-
eral right to determine a wage increase, if any, in year 3 equal
to the base general increase of nonunit employees. The parties
did agree to current contract language on 55 other issues.
These tentative agreements were initialed and dated in accor-
dance with the agreed-upon ground rules and the practice in the
early phase of these negotiations. Most of the tentative agree-
ments reached were to retain current contract language. None
of the proposals, as contained in the complaint, were tentatively
agreed upon at the February 11, 1997 meeting.
At a meeting held on February 28, 1997, the Union presented
yet another counterproposal to the Respondent. The Union’s
proposed article II, section 2 incorporated the hospital’s inter-
pretation of the ratio language on the ability to use part-time to
full-time employees. In the past, the hospital interpretation of
that ratio had been that they would be able to work part-time
employees 25 percent to 100 percent of the full-time hours.
The Local’s position in the past was that part-time employees
could be worked only 25 percent of 75 percent of full-time
hours. The Respondent’s latest proposal tendered to the Union
on February 11, 1997, contained no protective ratios at all,
consistent with its previous contract proposals.
There were some negotiating meetings held in March 1997.
On April 30, 1997, the Board’s Region 8 issued its third or-
der consolidating cases and third amended complaint in the
instant case. On May 1, 1997, the Union and the Respondent
submitted their final position statements to the federal mediator
on the five issues to be arbitrated. It was with the issuance of
the hospital’s position statement to the federal mediator that the
hospital agreed to drop its proposal on article I, section 2-
transfer of unit work.
The parties’ strike settlement agreement provided that Me-
diator Thorley was to choose between the final proposals of the
SUMMA HEALTH SYSTEM 1393
Union and hospital in fashioning his award. On August 20,
1997, Stump’s involvement with negotiations with the Respon-
dent ended in July 1997 when he left employment temporarily
on sick leave. The five issues, as outlined in the strike settle-
ment agreement, were submitted to Federal Mediator Thorley
who issued his unsigned decision on or about August 20, 1997.
The mediator accepted the Union’s proposal on article II, sec-
tion2. The mediator adopted the Respondent’s proposal for
article II, section 9.
With respect to article XVII, layoff, and recall, he proposed a
compromise position between the parties. At article 1, man-
agement rights, the mediator adopted part of the hospital’s
submission eliminating language, which provides “contractual
coverage shall continue for temporally assigned unit employees
during the term of assignment to a non-unit position.”
Negotiations continued between the parties to the date of the
trial without alternate agreement. Stump’s successor as lead
union negotiator, upon his hospitalization, was himself suc-
ceeded by yet another replacement.
2. Analysis
In Atlanta Hilton & Tower, 271 NLRB 1600, 1603 (1984),
the Board stated:

Under Section 8(d) of the Act, an employer and its
employees’ representative are mutually required to “meet
at reasonable times and confer in good faith with respect
to wages, hours, and other terms and conditions of em-
ployment . . . but such obligation does not compel either
party to agree to a proposal or require the making of a
concession.” Both the employer and the union have a duty
to negotiate with a “sincere purpose to find a basis of
agreement,” but “the Board cannot force an employer to
make a ‘concession’ on any specific issue or to adopt any
particular position.” The employer is, nonetheless,
“obliged to make some reasonable effort in some direction
to compose his differences with the union, if Section
8(a)(5) is to be read as imposing any substantial obligation
at all.”
It is necessary to scrutinize an employer’s overall con-
duct to determine whether it has bargained in good faith.
“From the context of an employer’s total conduct, it must
be decided whether the employer is lawfully engaging in
hard bargaining to achieve a contract that it considers de-
sirable or is unlawfully endeavoring to frustrate the possi-
bility of arriving at any agreement.” A party is entitled to
stand firm on a position if he reasonably believes that it is
fair and proper or that he has sufficient bargaining strength
to force the other party to agree. NLRB v. Advanced Busi-
ness Forms Corp., 474 F.2d 457, 467 (2d Cir. 1973).
Although an adamant insistence on a bargaining posi-
tion is not of itself a refusal to bargaining in good faith,
Neon Sign Corp. v. NLRB, 602 F.2d 1203 (5th Cir. 1979),
other conduct has been held to be indicative of a lack of
good faith. Such conduct includes delaying tactics, unrea-
sonable bargaining demands, unilateral changes in manda-
tory subjects of bargaining, efforts to bypass the union,
failure to designate an agent with sufficient bargaining au-
thority, withdrawal of already agreed-upon provisions, and
arbitrary scheduling of meetings. None of these indicia is
present here. There was, on the other hand, evidence of
the Company’s good faith, such as its appearance at 13
negotiating sessions, its offer of a 20-cent-per-hour wage
increase effective 29 May 1984, the prior successful bar-
gaining relationship between the parties, and the agree-
ment in principle to the Union’s sick leave proposal.
The Company’s firmness in insisting in insisting on a
1-year extension of the current contract does not of itself
constitute bad faith. We find that the totality of the Com-
pany’s conduct throughout the course of bargaining estab-
lishes that the Company engaged in hard bargaining, rather
than surface bargaining. [Citations omitted.]

Thus, although adamancy is not itself a determining factor, it
may be a factor in consideration of a bargaining party’s total
behavior at and away from the table.
Furthermore, the Board will not sit in judgment of, but yet
will still examine the bargaining proposals themselves to help
resolve the issue of good faith. In Reichhold Chemicals, Inc.,
288 NLRB 69 (1988), the Board took care to note that although
it would not judge the “acceptability” of a proposal to a party, it
would apply its “cumulative institutional experience” and ex-
amine bargaining proposals when appropriate as “evidence of
an intent to frustrate the collective-bargaining process.” The
Board stated, id. at 70:

Each party to collective bargaining “has an enforceable
right to good-faith bargaining on the part of the other.”
Enforcement of that right is one of the Board’s most im-
portant responsibilities. Indeed, the fundamental rights
guaranteed employees by the Actto act in concert, to or-
ganize, and to freely choose a bargaining agent are
meaningless if their employer can make a mockery of the
duty to bargain by adhering to proposals which clearly
demonstrate an intent not to reach an agreement with the
employees’ selected collective-bargaining representative.
The Board will not have fulfilled its obligation to look at
the whole picture of a party’s conduct in negotiations if we
have ignored what is often the central aspect of bargain-
ing, i.e., the proposals advanced by the parties. [Footnotes
omitted.]

See also Association of D. C. Liquor Wholesalers, 292
NLRB 1234 fn. 5 (1989), enfd. 924 F.2d 1078 (D.C. Cir. 1991).
McClatchy Newspapers, Inc., 321 NLRB 1386, 1390 (1996),
enfd. 131 F.3d 1026 (D.C. Cir. 1997), cert. denied 524 U.S. 937
(1998) (McClatchy II on remand of McClatchy I, 964 F.2d
1153 (D.C. Cir. 1992)).9
The proposals so adamantly insisted on by the Respondent
during many months of negotiations related to the very essence
and viability of the Union’s representational status. Unilateral
discretion to determine wages and unrestrained license to dissi-
pate the very work of the unit itself by out-of-unit work transfer
and use of nonunit employees would seriously denude the Un-
ion of its significance as employee representative. Indeed,
although the Board has found that parties may negotiate to
good-faith impasse over the issue of a unilateral merit pay pro-
posal, the Board found that such proposal would cede to an
employer such broad powers that it could not lawfully be uni-
laterally implemented even upon such good-faith impasse. The
Board stated in McClatchy II, supra at 1390–1391:

Specifically, were we to allow the Respondent to implement
without agreement these proposals, such that the employer

9 See McClatchy Newspapers (McClatchy III), 322 NLRB 812
(1996), in accord with McClatchy II.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1394
could thereafter unilaterally exert unlimited managerial dis-
cretion over future pay increases, i.e., without explicit stan-
dards or criteria, the fundamental concern is whether such ap-
plication of economic force could reasonably be viewed “as a
device to [destroy], rather than [further], the bargaining proc-
ess.” . . . [W]e find that if the Respondent was granted carte
blanche authority over wage increases (without limitation as
to time, standards, criteria, or the Guild’s agreement), it would
be so inherently destructive of the fundamental principles of
collective bargaining that it could not be sanctioned as part of
a doctrine created to break impasse and restore active collec-
tive bargaining.

With respect to transferring out of unit work, such a proposal
is not per se unlawful but is rather a mandatory subject of bar-
gaining. As long as an employer does not insist on changing
the unit description, it may lawfully bargain to good-faith im-
passe on the issue providing it does not attempt to deprive the
Union of the right to contend that the persons performing the
work after the transfer are to be included in the unit. Antelope
Valley Press, 311 NLRB 459, 461–462 (1993); Batavia News-
paper Corp., 311 NLRB 477 (1993).
The Respondent argues that its adherence to the proposals at
issue therefore were lawful. That adherence, however, must be
evaluated by the totality of its conduct. The demand for the
ceding of this discretionary authority must be viewed against
the Respondent’s recent pre-bargaining divisive intrusion into
the relationship of the Union and its constituency by virtue of
the Respondent’s direct bargaining with employees, unilateral
changes in employment conditions, and creation of sham inter-
nal bargaining entities. Indeed, its unlawful unilateral action
was in fact a preemptory strike that tainted the legitimacy of its
profession of open-minded bargaining for union acquiescence.
The disputed issues emerged from a background of complaints
and grievances over alleged Respondent erosion of bargaining
unit work protection which, according to its negotiators, the
Respondent admittedly sought to avoid by the arrogation of
complete discretion to the Respondent.
The discretion sought in the three complaint-cited proposals
moreover were made within the context of other discretionary
authority which had been ceded to it in the expired contract or
sought in the new contract regarding job abolishments, part-
time/full-time employee ratios, shift determination, hospitaliza-
tion/insurance coverage, absenteeism policies, jury duty leave,
reassignment of employees without need of bumping rights,
and reclassification of employees without posting or bidding
for the new position. Additionally, the Respondent sought
diminution of employee benefits and union perquisites such as
modest office space previously enjoyed.
The Union made periodic efforts to soften the blow of the
Respondent’s proposals by offering some accommodation to
the hospital’s need to obtain some flexibility to compete in the
open market, which need Janetzke conceded at the bargain
table, but the Union sought without success to dilute the com-
plete absolutism inherent in the Respondent’s proposals.
The Union’s December counterproposal on article I, section
2 attempted to inject some element of reviewability by condi-
tioning the Respondent’s discretion on nonarbitrary or capri-
cious reasons. Similarly, he sought to accommodate the article
II, section 9 proposal in emergency situations and the qualifica-
tion that temporary assignments to nonunit jobs would not
automatically be absorbed into the unit, and nonunit employees
could be temporarily transferred to unit positions.
In June 1996, the Union moderated its opposition as to the
definition of a temporary employee. With the June 14, 1996
counterproposal, the Union softened its position regarding a
hand and fist protective ratio of part-time/full-time unit hours.
On July 23, 1996, Janetzke accepted the Respondent’s pro-
posed article II, section 2, with the deletion of the word “non-
reviewable” and provision for some form of after-the-fact re-
viewability. Thus, the Respondent could immediately imple-
ment its desired change subject to later review. Janetzke made
similar overtures at the July 23, 1996 meeting when he futilely
attempted to inject some accountability to or input by the em-
ployees’ bargaining representative regarding job transfers out
of the unit.
With respect to wages, after 9 months of the Respondent’s
adamancy, Janetzke was prepared to surrender the Union’s
bargaining right in return for at least a price. Even that was
rejected. The Respondent’s argument that such a bargaining
collapse somehow vests retroactive validity for its adamancy is
unwarranted. Chester County Hospital, 320 NLRB 604 (1995),
citing General Electric Co. v. NLRB, 400 F.2d 713, 727 (5th
Cir. 1968), cert. denied 394 U.S. 904 (1969). Similarly, I reject
the argument that the Union’s resort to interest arbitration after
months of the Respondent’s immobility also validates its take-it
or leave-it bargaining stance.10
Throughout bargaining, the Respondent had made no mean-
ingful concessions. When it did, the purported concession
proved to be a mere sham as it was nullified by another coexis-
tent proposal. In the face of proffered union accommodation, it
remained unmoved and insistent that some vague concept of
“flexibility” justified precise, absolute discretionary powers, so
destructive of the Union’s representational status mandated
upon it by the Act. The Respondent did not explicitly contend
that the Union would not have the right to seek representation
of employees to whom unit work had been assigned and did
assure Janetzke that it was not seeking a waiver of its right to
claim such representation via a unit clarification petition.
However, the Respondent’s refusal to insert a simple recogni-
tion of such in the collective-bargaining agreement in light of
the Union’s fears suggests that it did not really want to assuage
those fears. The Respondent’s conduct came perilously close
to taking the position that the Union could not contend that
employees assigned unit work were in the unit, as the Union
feared.
The Respondent never offered, at any time, any specific eco-
nomic justification for these demanded powers or explanation
why the proffered accommodations that it peremptorily rejected
would not assuage its need without total union representational
capitulation. Only minor movement by the Respondent oc-
curred but only after the complaint issuance and the onset of
interest arbitration.11

10 Interest arbitration constitutes a waiver of the Union’s right to en-
gage in good-faith, give-and-take bargaining. As such, it is a permis-
sive bargaining subject and cannot be compelled. Columbus Printing
Pressmen Union 252, 219 NLRB 268 (1975), enfd. 543 F.2d 1161 (5th
Cir. 1976); Sheet Metal Workers Local 20, 306 NLRB 834, 839 (1992).
11 Childs testified, without contradiction, that on the eve of the strike,
November 6, he, Kurek, and Sombati, union council representative, met
at a dinner and agreed to language proposed by Sombati regarding the
topic of subcontracting of work to outside contractors as a quid pro quo
for acceptance of the Respondent’s work proposal. He testified that the
language, however, was put in the form of a respondent proposal to the
mediator who accepted it in his proposed solution on the issue.
SUMMA HEALTH SYSTEM 1395
I conclude that such movement was too little and came to
late to ameliorate the bargaining atmosphere which had become
tainted by the Respondent’s overall conduct which I find mani-
fested a bad-faith intent to avoid a negotiated agreement.
In support of its contention that it was privileged to adhere to
the disputed proposals, it relies on Cincinnati Enquirer, Inc.,
298 NLRB 275 (1990). In that case, the Board found lack of
evidence of absolute adamancy on the issue of wage control
and that the control was not as extensive as alleged. Further-
more, there was no allegation of bad-faith bargaining in any
other respect. In the McClatchy cases discussed above, there
had been the premise of overall “in depth” good-faith bargain-
ing which I find is absent here. McClatchy I, 299 NLRB 1045,
1046 (1990).
In Antelope Valley Press, supra, and Batavia Newspapers
Corp., supra, the employer’s insistence upon the right to trans-
fer unit work was explained in depth and was premised upon a
demonstrable economic need of an industry to adapt with some
flexibility to new technologies. It was not sought merely that
the employer might have flexibility; i.e., the freedom of not
having to deal with the employees’ bargaining representative
over issues vital to the survival of the unit itself for no demon-
strable justification. There, the employer never insisted by
contract proposal or orally in bargaining that the Union would
be precluded from claiming that the nonunit employees who
were to be assigned unit work should not be included in the
unit. See also Detroit Newspaper Agency, 326 NLRB 700,
701–702 (1998). Here, despite its disclaimer of waiver intent,
the Respondent’s refusal to acknowledge reviewabililty and the
Union’s right to seek Board redress on the grounds that such
provision would result in a proliferation of grievances and “liti-
gation” seemed calculated to suggest to the union negotiators
that the Respondent’s proposals as unmodified by the Union’s
counterproposal would by implication, necessarily preclude
such litigation, inclusive of a unit clarification petition.
The Respondent’s disputed proposals were merely part of a
vast array of proposals calculated to arrogate to the Respondent
unreviewable control over bargaining unit wages and bargain-
ing work. Coupled with its recent prenegotiation bypassing of
the Union and direct dealing with employees, its unlawful uni-
lateral actions, and its conduct at the bargaining table where it
gave no serious consideration of the Union’s ameliorating
counterproposals and no cogent explanations for the demands,
they are convincing evidence that the Respondent had no inten-
tion of reaching contractual agreement but rather sought the
diminishment of the Union as the meaningful exclusive em-
ployee bargaining agent. I therefore find that by such conduct,
the Respondent violated Section 8(a)(1) and (5) of the Act as
alleged in the complaint.12
E. Complaint Paragraph 29the Alleged Unfair Labor
Practice Strike
Paragraph 29 of the complaint alleges that the November 7,
1996 to February 3, 1997 strike against the Respondent was an
unfair labor practice strike. There is no allegation that the Re-
spondent unlawfully refused reinstatement to any strike.

12 The Respondent’s unlawful failure to comply with the Union’s re-
quest for information necessary for it to perform its duties as bargaining
agent, made prior to and into the period of contract negotiation as found
unlawful in the sec. E of this decision further supports this conclusion.
1. Facts
The facts underlying this issue relied upon by the General
Counsel are set forth above. The Respondent argues that other
facts demonstrate the true motivation for the strike. Union
President Powell admitted in cross-examination that within a
few weeks of the strike, ACH had received adverse media pub-
licity regarding its emergency room patient care and that an
imminent inspection visit by a regulatory agency was pending,
and he may have told the mediator that such events would pro-
vide the Union with leverage if they did call a strike. Kurek
testified that he received this “perception” of union motivation
in his discussion with the mediator. Childs testified without
contradiction that Union Representatives Endsley and Sombati
“indicated they understood that that was why the strike oc-
curred when it did.” He failed to testify as to what either agent
said that constituted this indication, what they based the con-
clusion, or whether they stated that this was the only reason for
the strike.
2. Analysis
Certain unfair labor practices have been found by the Board,
with Court approval, to have an inherent causal effect without
other evidence of explicit motivation of strikers or strike deci-
sion-makers. F. L. Thorpe & Co., 315 NLRB 147, 149 (1994),
enfd. in part 71 F.3d 282 (8th Cir. 1995); C-Line Express, 292
NLRB 638 (1989); SKS Die Casting & Machinery, Inc. v.
NLRB, 941 F.2d 984, 991 (9th Cir. 1991); Vulcan Hart Corp.
(St. Louis Div.) v. NLRB, 718 F.2d 269, 276 (8th Cir. 1983).
Furthermore, the Board and reviewing Court may consider
objective criteria and evaluate “the probable impact of the type
of unfair labor practice in question on reasonable strikers in the
relevant context.” Soule Glass Co. v. NLRB, F.2d 1055, 1080
(1st Cir. 1980). See also Gibson Greetings, 310 NLRB 1286,
1288 (1993), where the Board relied upon objective evidence
and concluded that a strike had been prolonged by the em-
ployer’s conduct “which tainted the bargaining climate and
impeded opportunities for settlement of the strike.”
In C-Line Express, supra, 638, the Board stated, with respect
to the causal relationship of a subsequent unfair labor practice
to the prolongation of a strike:
The Board has long held that an employer’s unfair labor
practices during an economic strike do not ipso facto convert it
into an unfair labor practice strike. Rather, the General Coun-
sel must establish that the unlawful conduct was a factor (not
necessarily the sole or predominant one) that caused a prolon-
gation of the work stoppage.
Elsewhere, the Board has held causation or prolongation
where the unfair labor practice was a contributing cause, a
cause in part, or played a part in a contributing factor or where
it had anything to do with causing a strike. See, respectively:
Walnut Creek Honda, 316 NLRB 139, 142 (1995); Capitol
Steel & Iron Co., 317 NLRB 809, 813 (1995), enfd. 89 F.3d
692 (10th Cir. 1996); Fairhaven Properties, Inc., 314 NLRB
763, 768 (1994); Domsey Trading Corp., 310 NLRB 777, 791
(1993); Decker Coal Co., 301 NLRB 729, 746 (1991); and
NLRB v. Moore Business Forms, Inc., 574 F.2d 835, 840 (5th
Cir. 1978). Thus the criteria is not whether a strike would have
occurred anyway in the absence of unfair labor practices nor
even the extent of their prominence in the causal motivation.
I conclude that the General Counsel has adduced bargaining
conduct sufficient objective and subjective evidence on which
to conclude the Respondent’s unlawful bargaining conduct
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1396
would have had the impact of tainting the bargaining climate
and would had the impact of motivating the employees to
strike, or at least partially motivated the employees to strike.
The Respondent’s evidence runs to the tactical, precise tim-
ing of the strike and not for the basic motivation for the strike,
but in any event, at best sets forth an additional reason for the
strike. It does not negate evidence that the Respondent’s un-
lawful bargaining conduct at least in part motivated the strike.
Accordingly, I find that as alleged in the complaint, the strike
was from its inception and to its end an unfair labor practices
strike.
F. Information Requests
1. Facts
The complaint in paragraphs 15–18, 20, 22–24, and 27 al-
leges nine different formal union information requests that the
Respondent either failed to comply or complied within an un-
timely manner.13
The Respondent’s answer entered a blanket denial to the al-
legations, but there is no factual dispute that those requests
were made on the date alleged and for the information alleged.
Furthermore, the Respondent admits to tardy compliance with
many requests for relevant information.
Four requestsparagraphs 15, 17, 23, and 27related di-
rectly to bargaining unit employees.
By letter directed to Paul Jackson dated September 7, 1994,
Powell requested copies of job postings for three bargaining
unit positions which reiterated earlier, identical, unsatisfied
requests (par. 15). It is Jackson’s responsibility to respond to
union information requests. Powell’s objective was to ascertain
whether the Respondent had filled bargaining unit positions
with nonbargaining unit employees inasmuch as the postings
were for bargaining unit jobs but were seen by him posted on a
nonbargaining unit bulletin board. Powell’s testimony that the
Respondent failed to comply with his request is uncontradicted.
On September 1, 1994, in writing, Powell renewed a request
for information that had been made on three previous occasions
by the Union and sought information about the status of em-
ployees working at a facility known as “Bath Radiology”
(complaint par. 16). He asked whether they were ACH em-
ployees and for the wage rate, hours of employment, and job
descriptions and classifications for those employees. He made
the request based on reports he received from bargaining unit
employees that bargaining unit employees were being trans-
ferred to Bath Radiology and employees from the Bath Radiol-
ogy facility were performing bargaining unit work at ACH.
Powell requested this information in order to be able to investi-
gate these reports. On an unspecified date several months later,
Powell received from the Respondent a copy of his letter re-
quest with the notation added at the bottom, “no one on ACH
payroll at Bath.” Powell continued to make oral requests for
the same information for several months thereafter, inasmuch
as he continued to receive similar reports from bargaining unit
employees. Powell received no further information, which he
felt was necessary to determine whether the reports were accu-
rate. Without any further information, Powell filed a grievance.
There is no other evidence to substantiate the reports from unit
employees testified to by Powell.

.
13 At trial, the Acting General Counsel withdrew pars. 19, 21, 25,
and 26.
On September 6, by letter, Powell renewed a prior unsatis-
fied request for job description, pay rates, and job postings for
the emergency room ortho tech position (complaint par. 17).
emergency room orderlies are unit employees. Two of them
reported to Powell that work they had previously performed
had been transferred to the new ortho tech position, a posting
that was seen by Powell on a nonunit ACH bulletin board.
On an unspecified date, Powell received back a copy of his
letter request from the Respondent with the notation, “There are
no Ortho Tech positions in the Emergency Department,” signed
and dated “1-14-94.” He raised the matter personally with
Jackson who assured him verbally that there was no such posi-
tion despite Powell’s own observation of the posting. Jackson
did not contradict Powell nor did he testify to the nonexistence
of such posting. There is no other evidence that such position
actually was implemented in the emergency room. Without
any further information, Powell felt constrained to file a griev-
ance over the issue.
By letter to Jackson dated September 6, 1994, Powell re-
newed an outstanding request for the identify and hours worked
by electricians and painters for two separate time periods in
September and October 1992 at the O’Neil Building, a down-
town commercial building (complaint par. 17). Powell sought
the information because he had received reports from mainte-
nance employees to the effect that other unit maintenance em-
ployees had been sent to the O’Neil Building to build a hospital
display in the front window of the building and had incurred
overtime. The Union sought the information because the main-
tenance employees who had reported this to Powell were lower
rated hourly employees. Powell believe that pursuant to the
contract, they should have been offered the overtime. Powell
was informed by a Respondent supervisor that the bargaining
unit employees were actually working for management of the
O’Neil Building at the time. Powell testified that he required
those records in order to be able to investigate the situation
inasmuch as he knew the employees who worked at the O'Neil
building had worked their regular shift and were paid by ACH
on the days in question. Powell never received the requested
information.
Powell submitted another written request for information to
Jackson on September 7, 1994, for the date of hire and rate of
pay for three employees who worked in different ACH areas in
the position of unit care coordinator, a bargaining unit classifi-
cation (complaint paragraph 18). The Respondent originally
created the unit service coordinator classification as a nonbar-
gaining unit position. The Union had grieved the matter and
prevailed in arbitration, and the classification was placed in the
bargaining unit as a result. Powell sought the information be-
cause the Union took the position that those three individuals
were unit service coordinators and should be placed in the bar-
gaining unit pursuant to the prior arbitration award. The
Respondent contended that they were nonunit employees
The hospital and the Union proceeded to a second arbitration
on the issue of those three employees. Powell received the
information just prior to that subsequent arbitration, about 2
years after the Union initially requested the information in June
1993.
The Respondent’s defense to the information requests by
Powell rests upon the testimony of Jackson. He described the
grievance procedure as consisting of four steps as follows: The
first step involves the employee and supervisor. The second
involves a written grievance from employee to union steward
SUMMA HEALTH SYSTEM 1397
and a meeting with the Respondent’s department director. The
Respondent’s director responds in writing in the third step, the
written appeal of which, if any, proceeds to Jackson. The
fourth step involves a formal grievance meeting and presenta-
tion of witnesses. Thereafter, the next step is arbitration. Jack-
son testified that meetings in step three and four are initiated by
the Union. He testified that over the years he has had many
information requests, which were complied with by the deposit-
ing of a response in a receptacle box maintained by his secre-
tary in her office. He testified that if a grievance is involved, he
determines relevancy and has waited to respond until step three
to do so. If he immediately concedes relevance, the informa-
tion is deposited in the secretary’s office box; if not, he will
discuss it with the Union.
Jackson testified that from the 1980’s to 1992, there had
been about 15 to 40 grievances filed per year but in the 1993
through 1994 period, they had accumulated to about 600.
Janetzke claimed that they were about half that much, or less,
but Powell conceded they may have reached 500. However,
many of them apparently involved common “policy issues” or
other common factors involving several employee grievants. In
any event, clearly the increase was substantial. Jackson testi-
fied that in 1994, he followed a strict first-in, first-out order of
response as well as grievance consideration despite a union
request for prioritization of issues. Jackson did not contradict
Powell’s testimony that the past practice of the parties had been
to prioritize grievance processing according to issues involved
and not to follow a strict chronological order. Jackson testified
that at one point, the Union ceased scheduling step three griev-
ances and both parties thereafter proceeded to arbitration, by-
passing step three. When that occurred, it became Jackson’s
practice to provide information request responses at some point
prior to the arbitration hearing after the selection of an arbitra-
tor. He conceded that such response was not timely at times
but was submitted at least at the arbitration hearing itself.
Clearly, by such admission, the Respondent’s unilaterally
adopted information-request compliance policy and practice
afforded the Union little or no time to investigate and evaluate
the merit of a grievance whereby arbitration might have been
avoided by the Union’s conclusion of lack of merit on its own
initiative.14 With respect to the supply coordinator request, he
testified that there had been no step three procedure. He con-
ceded that the Respondent's unilaterally adopted policy of not
responding to information requests until step 3 is not one
founded in the collective-bargaining agreement. Powell testi-
fied that although there came a time when the Union did not
proceed through step three, at no time did the Union refuse to
proceed through step three. He testified that the Respondent’s
refusal to prioritize grievances pursuant to past practice resulted
in an accumulation of grievances particularly related to the
reengineering policy and to 14 employee layoffs in 1994 which
had become “stockpiled” at step two. It is Powell’s uncontra-
dicted testimony that the bilateral agreement to proceed to arbi-
tration without the contractually mandated step three was
reached when Janetzke became involved in the late 1994 onset

ere filled.
14 In its brief, the Respondent claims that Jackson’s newly adopted
information request response practice was the result of an agreement
with the Union. Jackson’s testimony does not support this contention.
On the contrary, it indicates that it was Jackson who unilaterally insti-
tuted the practice. At best, the Union tolerated it but did not abandon
making timely information requests well in advance of step three and
arbitration.
of contract negotiations. He also testified without contradiction
that the Union never reached any agreement for the withholding
of information until step three. Jackson did not testify that
there had been any such bilateral agreement.
Powell testified that without sufficient information, he was
compelled to move the grievance forward to step three and
four. He testified that information request compliance at a
department head and supervisor level ceased in 1994 when
department heads informed him that Jackson ordered such ces-
sation. Powell testified that he confronted Jackson on the issue
but Jackson denied giving those orders. Jackson did not con-
tradict him. In July 1995, a bilateral agreement was reached
upon a method to prioritize grievances and thus ended the Re-
spondent’s refusal to process grievances on anything but a
chronological order.
Janetzke or staff representative Stump made the remainder of
the disputed information requests. By letter to Kurek on Au-
gust 12, 1996, Janetzke reiterated prior unsatisfied requests of
October 1995 and January and March 1996 for the identity and
wage rates of employees in the classification of the patient
registration interviewer/receptionist in the radiology department
and the postings for that classification (complaint par. 20). A
union grievance was pending over its claim that the position
should be a unit position. The postings described it as a non-
unit position and the Respondent filled the positions as such.
Responding by letter to Kurek’s written questioning of the
information’s relevancy, by Stump's letter of March 29, 1996,
the Union set forth the basis for the request. There it stated its
objective to establish what work the employees at issue per-
formed, the history of the position, and its community of inter-
est with unit employees’ job duties, classifications, and wage
rates.
An arbitration hearing was held concerning the grievance
over the unit placement issue of the receptionist in September
1996. The Union received much of the information from Kurek
just prior to the arbitration hearing. Excluded from the submis-
sion were the job postings, bids, or position awards for the re-
ceptionist position. The Union further requested that if there
were no job postings, bids, or awards, the Union wanted
information as to how positions were filled. The Respondent
did not produce any job postings, bids or awards, nor did it
inform the Union how positions w
By letter of September 6, 1996, Stump renewed a written re-
quest to Jackson for certain information initially requested on
October 13, 1995. The Union requested contracts and subcon-
tracts the Respondent had entered into with a courier delivery
service known as “ASAP.” The Union also sought any billings
and invoices from ASAP from the time period July 1, 1994,
onward. Janetzke testified without contradiction that the Union
had lost certain jobs, which it believed the Respondent subcon-
tracted to the ASAP. He expected that the information pro-
vided by the Respondent would enable the Union to learn ex-
actly what type of work ASAP was doing and enable the Union
to compare it with union jobs that had been lost. The Union
filed a grievance over the loss of work to ASAP. The Union
never received the requested information. According to Jack-
son’s uncontradicted testimony, the matter did not proceed to
arbitration or to step three.
The implication in Jackson’s testimony is that because there
was no step three proceeding or an arbitration hearing, the Re-
spondent was relieved of the obligation of complying with the
information request.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1398
On September 6, 1996, Stump renewed a request for infor-
mation initially made on September 22, 1995 (complaint par.
23). The Union sought records to determine whether one bar-
gaining unit employee was entitled to overtime instead of an-
other bargaining unit employee. It therefore requested the time
records for a certain bargaining unit employee in the catering
kitchen. The Union never received the information. Again,
Jackson did not deny noncompliance but merely testified
obliquely that the Respondent maintains timecards for employ-
ees in its office which in part would have answered the Union’s
questions and that he had satisfied timecard requests for two
other catering employees. His explanation is incomprehensi-
ble.15
Article 3, section 2 of the contract states that the Respondent
is to provide information on a weekly basis regarding new em-
ployees hired into full-time bargaining unit positions. This
information includes the name of the employees, their address,
rate of pay, and job classification. As far back as the pre-
negotiating meetings held in September 1995, Janetzke told
Kurek that the Union had not been receiving this information,
and Kurek assured Janetzke that he would check on the matter
with Jackson.
Jackson testified that with respect to newly hired employees,
the Respondent provides information to the Union regarding
date of hire, classification, and full-time status. He testified
that the information is provided to the Union on employee hir-
ing by placing it in the secretary’s receptacle box with other
information provided to the Union. The totality of the Respon-
dent’s evidence on the consistency of the practice is Jackson’s
hearsay testimony that on an unspecified date the director of
employment informed him that it is being done on a regular
basis. I therefore must credit the more specific, competent, and
probative testimony of the Acting General Counsel’s witnesses
and their supporting documentary evidence.
Janetzke testified without contradiction that a later meeting
when the Union renewed the request, Kurek admitted that the
Union had not been receiving the information. Janetzke testi-
fied without contradiction that Childs told him at one point that
the Respondent did not have enough clerical help and the hos-
pital would check on getting additional help in order to get the
Union the information. Janetzke testified that as time went on,
the Union kept pressing the Respondent for the information and
began to memorialize their requests in writing. Union
representatives wrote letters requesting this information in
February, August, and September 1996 (complaint par. 27).
During the time period that Janetzke made these requests, the
Union never received the information. Approximately 1 year
passed between the time the Union initially brought the request
on the prenegotiating meetings in September 1995 to the date
of the Union’s third letter on September 13, 1996.
Powell testified that it was not until April 1997 that the Un-
ion began to receive information on new hires pursuant to arti-

15 Janetzke testified that by letter to Respondent on September 6,
1996, he requested certain information relating to alleged subcontract-
ing of delivery and pickup of X-ray film, jackets, patient charts, etc.
He made this request in conjunction with a renewed request to proceed
to arbitration over the issue. Janetzke testified that at some unknown
date, he turned the matter over to a union attorney and was unable to
testify to actual noncompliance of that request. He testified that there
was no compliance during the time of his involvement with the griev-
ance, but the record does not establish what length of time that was.
Thus, the facts are insufficient to support complaint par. 24.
cle 3, section 2. Prior to April 1997, the Union had not re-
ceived information on new hires for a number of years. Pursu-
ant to counsel for the Acting General Counsel’s subpoena, the
Respondent produced a document at trial identifying all em-
ployees hired into full-time bargaining unit positions since
January 1, 1996, which identifies 17 employees hired from
March 1996 through October 1997. Powell testified that of the
17 employees listed on the exhibit, the Union did not receive
any information for 10 of the new hires.
The Union receives new hire information from the Respon-
dent on a card that states the employee’s date of hire, job classi-
fication, and department and starting rate, among other infor-
mation. Documentary evidence establishes the total number of
new information cards that the Union has received from the
Respondent since April 1997. Included therein are some cards
for employees who were not actually hired but who were re-
called employees. The evidence confirms that the names of 10
of 17 newly hired unit employees were not reported to the Un-
ion.
2. Analysis
A failure to furnish the employee’s designated bargaining
agent with requested information which is relevant to the nego-
tiation or administration of a collective-bargaining agreement
or use in carrying out its statutory duties and responsibilities
may constitute a breach of an employer’s good-faith bargaining
obligations under the Act. Detroit Edison Co. v. NLRB, 440
U.S. 301, 303 (1979); NLRB v. Acme Industrial Co., 385 U.S.
432, 435-436 (1967); NLRB v. Truitt Mfg. Co., 351 U.S. 149,
152 (1956). Information concerning terms and conditions of
employment with the bargaining unit is presumptively relevant
and no specific showing of relevance is required, but as to areas
outside the unit a more restrictive standard of relevance is ap-
plied. Ohio Power Co., 216 NLRB 987, 991 (1975).
In AGC of California, 242 NLRB 891 (1979), enfd. 633 F.2d
766 (9th Cir. 1980), cert. denied 452 U.S. 915 (1981), the
Board considered the issue of whether a union was entitled to
receive from a multiemployer bargaining association a list of
“open shop” members. The Board concluded that the union’s
principal purpose in seeking the data was to “facilitate inquiry”
into whether or not some of the employer association’s open-
shop members were bound by the collective-bargaining agree-
ments and included in the represented units. The Board stated
at 894:

[The Unions] are entitled to the requested information under
the “discovery-type” standard enumerated in NLRB v. Acme
Industrial Co., 385 U.S. at 437, to judge for themselves
whether to press their claims in the contractual grievance pro-
cedures, or before the Board or courts, or through remedial
provisions in the contracts under negotiation. The Torrington
Company v. NLRB, 545 F.2d 840 (2nd Cir. 1976). It is cer-
tainly well within the statutory responsibilities of the Unions
to scrutinize closely all facets relating to the diversion or pres-
ervation of bargaining unit work and, therefore, they are fully
warranted in any reasonable probing of data concerning the
exclusion of the employees of certain AGCG members from
the bargaining units. [Citation omitted.]

See also Doubarn Sheet Metal, 243 NLRB 821 (1979); and
Leonard B. Hebert, 259 NLRB 881 (1981), enfd. 696 F.2d
1120 (5th Cir. 1983), cert. denied 464 U.S. 817 (1983) (regard-
ing “double-breasted” operation); Leland Stanford Jr. Univer-
SUMMA HEALTH SYSTEM 1399
sity, 262 NLRB 136 (1962), enfd. 715 F.2d 473 (9th Cir. 1983)
(concerning nonunit employee information necessary for con-
tract negotiation); Consolidated Coal Co., 307 NLRB 69
(1992) (regarding requested information concerning single,
joint employer, or alter ego relationship and its relevance to
contract violation); Congreso de Uniones Industriales v. NLRB,
966 F.2d 36 (1st Cir. 1992), vacating and remanding Rice
Growers Assn., 303 NLRB 980 (1991) (regarding requested
information in the possession of the parent corporation con-
cerning transfer of work to a third party in a severance pay
dispute).
The Board has continued to apply broad discovery principles
to requests for information that are either potentially relevant or
useful to a union in its performance of its representation duties.
Pfizer, Inc., 268 NLRB 916 (1984). The Board has done so
where grievances are filed during the life of the contract with
respect to contractual language restricting subcontracting and
where the information related to work covered by the contract.
Eazor Express, 271 NLRB 495 (1984).
In W-L Molding Co., 272 NLRB 1239 (1984), with respect to
the application of a broad “discovery type standard,” the Board
quoted with approval the following precedent: “It is not the
Board’s function in this type case to pass on the merits of the
Union’s claim that Respondent breached the collective bargain-
ing agreement . . . or committed an unfair labor practice.”
NLRB v. Rockwell-Standard Corp., 410 F.2d at 957. “Thus, the
union need not demonstrate actual instances of contractual
violations before the employer must supply information.” Boy-
ers Construction Co., 267 NLRB 227, 229 (1983). “Nor must
the bargaining agent show that the information which triggered
its request is accurate, nonhearsay, or even ultimately reliable.”
Ibid. “The Board’s only function in such situation is in ‘acting
upon the probability that the desired information was relevant,
and that it would be of use to the union in carrying out its statu-
tory duties and responsibilities.’” NLRB v. Rockwell-Standard
Corp., 410 F.2d at 957, quoting NLRB v. Acme Industrial Co.,
385 U.S. at 437. Accord: General Motors v. NLRB, 700 F.2d
at 1088.
On a showing of relevance to negotiations or other represen-
tational need, the employer must make a reasonable effort to
produce the requested information or to secure if it is not avail-
able or to explain the reasons for its unavailability. Rochester
Acoustical Corp., 298 NLRB 558, 563 (1990); Congreso de
Uniones Industriales, supra, and cases discussed there. Fur-
thermore, the employer must comply with such requests in a
timely fashion. Consolidated Coal Co., supra, citing EPE, Inc.,
284 NLRB 191 (1987); Assn. of D.C. Liquor Wholesalers, 300
NLRB 224 (1990).
The information requested as alleged in complaint para-
graphs 15, 17, 23, and 27 concerned bargaining unit employees
and is presumptively relevant; i.e., the request for the job post-
ing for full-time positions of stock handler, driver, cook 3, and
pharmacy tech (complaint par. 15); the names and hours
worked by electrician and painters at the O’Neil Building
(complaint par. 17); the work equalization overtime records and
the offering sheet for the catering kitchen (complaint par. 23);
and the weekly list of new hires as required in article 3, section
2 (complaint par. 27).
The Respondent produced no comprehensible explanation
for not complying fully with those requests, as was its obliga-
tion to do so under the Act.
With respect to Powell’s September 6 request for postings
and information regarding the Emergency Department Ortho
Tech position, the evidence indicates that the first written reply
he received to the effect that there was no such position did not
come until 2 months later (complaint par. 17). The delay was
never explained. There is no evidence that such position was
implemented but Powell’s testimony as to having observed
actual postings for the job is uncontradicted. The information
was relevant to Powell’s investigation as to whether bargaining
unit work was being performed by nonunit employees in viola-
tion of the contract and, thus, whether any grievance might
have merit. The Respondent’s tardy and cryptic response
breached its duty to timely comply. The Respondent’s further
breached its obligation to produce the requested postings,
which were relevant to the Union’s investigation. Regarding
Powell’s September 1, 1994 request for information relating to
suspected work performed by bargaining unit employees at the
Bath Radiology facility, there is no evidence that the Respon-
dent had any documentation that it failed to produce (complaint
par. 16). However, its tardy, cryptic communication to the
Union that no ACH employees were engaged in work at the
Bath facility breached its obligation to comply promptly with a
request for information necessary and relevant to the policing
of the collective-bargaining agreement. The Respondent la-
mented the proliferation of grievances in testimony and during
negotiations, but its own cavalier attitude toward information-
request compliance tended to exacerbate that proliferation be-
cause it prevented the Union from ascertaining the possible lack
of merit of employee reports.
Another incident of egregiously tardy response to a request
for information was the Respondent’s 2-year delay in providing
necessary and relevant information regarding the alleged bar-
gaining unit placement of service coordinators requested by
Powell on September 7, 1994 (complaint par. 18). I find this
also to constitute a breach of its statutory obligations. The
Respondent had no basis in the collective-bargaining agree-
ment, past practice, or agreement with the Union to warrant its
unilaterally instituted policy of deferring relevant information
requests to the step three procedure or, in its absence, to the eve
of the arbitration proceeding, and sometimes later or not at all.
Its arbitrariness in this conduct was matched by its unilateral
decision in 1994 to deviate from the past agreed-upon practice
of prioritizing grievance processing. For the same reason, I
find the Respondent breached its statutory obligation by its
incomplete arbitration eve compliance with Janetzke’s August
12, 1996 reiteration of multiple earlier requests for information
necessary for the grievance processing of the radiology recep-
tionist unit placement issue (complaint par. 20), and by its total
noncompliance of Stump’s written request for information rele-
vant to a possible loss of unit work to subcontracting to ASAP
issue, necessary to the investigation of and processing of a
grievance (complaint par. 22.)
Accordingly, based upon the foregoing findings, I find that
the Respondent breached its bargaining obligations under the
Act at the times and in the manner set forth above in this sec-
tion of the decision and thereby violated Section 8(a)(1) and (5)
of the Act.
G. Solicitation/Distribution
1. Facts
Paragraph 30(A) of the complaint alleges that the Respon-
dent has at all times material maintained the following rule:

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1400
SOLICITATION/DISTRIBUTION OF LITERATURE
Solicitations by non-employees are prohibited any-
where on Summa Health System property unless Summa
has granted prior approval. Except for programs spon-
sored and approved by Summa Health System, no em-
ployee may solicit any other employees on Summa prem-
ises for any purpose whatsoever while the employee solic-
ited is working or the employee soliciting is work or in a
work area. In addition, no employee may solicit any other
employee in patient care areas (such as, but not limited to,
patient rooms, emergency room, operating rooms, radiol-
ogy rooms, and therapy rooms).
No employee may solicit or distribute to any patient or
visitor at any time.

Paragraph 30(B) alleges that on or about October 3, the Re-
spondent’s agents, Larry Braewell, Mary Hunt, and Thomas
Grubbs, enforced that rule, “selectively and disparately by re-
fusing to allow employees to distribute union literature in non-
working areas, the cafeteria and the 511 hallway, while on non-
working time.” The complaint alleges, and the Acting General
Counsel argues, that by the alleged conduct in paragraph 30(B),
the Respondent violated Section 8(a)(1) of the Act. It alleges
no violation as to the mere maintenance of the rule itself.
The answer denied both allegations. However, it was stipu-
lated at trial that the quoted rule was contained in the employee
handbook and was in fact in force during all material times.
Furthermore, although the agency of the alleged rule enforcers
was denied in the answer, undisputed record evidence and ad-
missions by Childs establish that they in fact were acting as
security officers employed by the Respondent, and specifically
acted upon Childs’ instructions on the occasions alleged with
respect to the rules enforcement against employees on non-
working time and Eugene Damron, union vice president, who
attempted to distribute union literature in the cafeteria with an
employee on the date, allegedly as part of the Union’s then-
organizing campaign for the RNs, LPNs, and other professional
and technical employees.
It is undisputed that the Union had in the past been permitted
to use space for its office purposes in the 511 Hallway until the
summer of 1996, when the Respondent withdrew the privilege.
At that time, negotiator Kurek informed negotiator Janetzke
that the Union could use the cafeteria for its unit servicing pur-
poses as it had done in the distant past. In consequence after
July 1996, the Union used cafeteria space for the preparation of
arbitration cases and other purposes whereby Damron and em-
ployees convened at the south-end vending area of the dining
room in full view of various Respondent agents. Furthermore,
numerous solicitations have regularly taken place by employees
for various purposes, including Mary Kay Products, Girl Scout
Cookies, Tupperware, Avon, and church-sponsored fundraising
candy sales, in full view of the Respondent’s agents without
any interference
Childs testified that he had instructed security personnel to
enforce the rule in the cafeteria on the date in issue inasmuch as
he had received no prior notice and that it was a “patient care
area; because outpatients go there on a regular basis.” He ad-
mitted that these outpatients receive no care in the cafeteria.
He had no recollection of the building 511 hallway incident and
did not contradict testimony, which I credit, that the Respon-
dent’s security personnel also prohibited similar distribution
there by an employee. Building 511’s upper floors are not in
use. It is an older part of the hospital complex and adjacent to
the main hospital building. The lower level is used for storage
near which the Union had previously located its office. Em-
ployee paychecks are distributed to the nursing staff in the
nearby hallway. No patients appear there.
The expired collective-bargaining agreement in article XII
states:

Section 1—The Union may distribute literature throughout
the Hospital in non-patient care areas during non-working
time of the employee to which the literature is being distrib-
uted. It is understood that distribution of literature under this
Section will not interfere with operations of the Hospital.
Prior to distribution, the Union shall provide a copy of the lit-
erature to the Vice-President/Human Resources or his desig-
nee. With the exception of Union organizing material, the lit-
erature shall not contain anything critical of the Hospital or
employees of the Hospital. This provision shall not extend to
conferences called and conducted by the Hospital administra-
tion, or meetings of Union stewards and other Union repre-
sentatives held during non-working time for the purpose of
processing grievances as defined in Article XXV of this
Agreement or other Union activity as approved by the Hospi-
tal, it being understood and agreed that such a meeting shall
not in any way interfere with the operations of the Hospital or
the performance of their duties by any employees.

Damron testified that he was aware of that provision and
admitted that he had not obtained prior permission from the
Hospital administration to distribute campaign literature in the
cafeteria with an employee. It is undisputed that in prior years,
Powell, union president, had distributed union cards and cam-
paign leaflets on adjacent public sidewalks and parking lots, in
non-patient care areas, and in the cafeteria in full view of the
Respondent’s agents without interference despite lack of prior
notice and approval.
2. Analysis
The complaint is limited to allegations of the Respondent’s
interference with employee’s right to distribute union literature
in nonwork areas on nonworking time. There is no allegation
relating to an unlawful interference with the Union’s access to
employees.
By its citation in its brief of Beth Israel Hospital v. NLRB,
437 U.S. 483 (1978), the Respondent recognizes the right of the
hospital employees to engage in nonworking time union solici-
tation and nonworking time union literature distribution in
nonwork areas of the hospital absent a showing of interference
with patient care. Further held therein is that it is the em-
ployer’s obligation to show that disruption to patient care is a
necessary or likely result of such activity. In that case, the
activity occurred in the hospital cafeteria. The Respondent
argues that the testimony of Childs satisfied its burden, and thus
he acted properly in ordering the cessation of union literature
distribution in the hospital cafeteria. The brief did not refer to
the absence of any patient care in the building 511 hallway. In
Beth Israel, the Court found that the employer demonstrated at
best that the use of the cafeteria by patients was voluntary,
random, and infrequent. Childs testified cryptically that outpa-
tients use the cafeteria “with regularity.” Thus, apparently no
resident ambulatory patients use the cafeteria. Furthermore,
since these are outpatients, their use of it is presumably volun-
tary. There is no definition in the record as to the degree of
SUMMA HEALTH SYSTEM 1401
delicacy of condition, if any, suffered by these outpatients,
which presumably is less than that of resident ambulatory pa-
tients. Childs failed to testify as to the number of outpatients
who use the cafeteria and whether any were present on the day
in issue. Finally, Childs’ testimony gives no idea as to the de-
gree and frequency of such usage encompassed in the term
“regularity,” i.e., 1 or 100 outpatients every year, month, week,
or day? The reasonableness of Childs’ conclusion is under-
mined by the undisputed fact that the hospital had no qualms of
permitting cafeteria space to be utilized for union business and
solicitation/distribution on prior occasions. Accordingly, I find
that the Respondent has failed to demonstrate that the October
1996 cafeteria distribution of union literature did, in fact, or
even reasonably tended to disrupt or interfere with patient care.
Certainly, no patient care was involved in the building 511
hallway employee distribution which was halted by the hospi-
tal’s security personnel whom Childs’ admittedly had given
similar broad orders regarding the cafeteria and who were act-
ing within then scope of their authority.
The only other defense that the Respondent raises in its brief
is that the October distribution was a violation of the expiring
collective-bargaining agreement inasmuch as no review by the
Respondent had been obtained prior to the distribution. Childs,
however, testified that his “problem” with the distribution was
not lack of review by the hospital administrator but rather lack
of “notice.” It is undisputed that on numerous prior occasions
during the lifetime of the collective-bargaining agreement, the
Respondent waived such compliance and even encouraged
regular ongoing union business in the cafeteria, not limited to
grievance processing. The proviso does not state that distribu-
tion is conditioned upon prior presentation of a copy of the
material to hospital administration, nor is there any reference to
the need for explicit clearance of such activity, nor does it pro-
vide a penalty for noncompliance. However, the contract
plainly refers to distribution by “The Union.”
The prohibition of distribution enforced against Damron is
not the issue but it is rather the interference with individual
employees’ right to distribute union literature; i.e., literature
which supported their incumbent union and proffered it to non-
bargaining unit employees as a bargaining agent. Even if the
collective-bargaining agreement clause could reasonably be
interpreted as a waiver of employee rights to engage in distribu-
tion of campaign material in support of their bargaining agent,
it would be an invalid suppression of individual employee
rights under the Act to the same extent had it prohibited anti-
incumbent distributions, as the Union argues in its brief, citing
NLRB v. Magnavox Co. of Tennessee, 415 U.S. 322 (1974).
See also Universal Fuels, Inc., 298 NLRB 254 (1990).
Finally, where an employer extends to its employees certain
privileges beyond the statutory rights, such as bulletin board
usage, it may not selectively and disparately censor union post-
ings even though contractual provisions provide for managerial
prior approval. Monongahela Power Co., 314 NLRB 65, 68
(1994); Roll & Hold Warehouse & Distribution Corp., 325
NLRB 41, 51 (1997), enfd. 162 F.3d 513 (7th Cir. 1998).
Therefore, a fortiori, contractual provisions setting fourth prior
managerial approval of statutorily grounded distribution rights,
assuming that such are not per se inherently destructive of those
rights, may not lawfully be selectively and disparately enforced
as was done by the Respondent here.
Accordingly, I find that by prohibiting the October distribu-
tion of union organizing literature by its employees in the cafe-
teria and in the hallway of building 511, the Respondent vio-
lated Section 8(a)(1) of the Act.
H. The Disciplinary Warning to Linda Norman
Case 8–CA–29143
1. Facts
a. Union activities and the Respondent’s knowledge
and animus
After attending nursing school at ACH, Linda Norman was
hired by it as a RN on graduation in 1974. Norman worked at
ACH from 1974 to 1979, was rehired in 1986, and has worked
continuously for ACH from 1986 to the present.
During her entire tenure at ACH, Norman has never received
any disciplinary action with regard to the performance of her
duties with the exception of two written warnings for absentee-
ism/tardiness received in 1988 and 1989. She has received
numerous letters of commendation from ACH and patients
under her care while at ACH and has consistently received
favorable performance evaluations.
As a RN, Norman was responsible for coordinating direct
patient care, administering medications, and effectuating doc-
tors’ orders. These duties called upon Norman to exercise pro-
fessional judgment and to prioritize her work. In 1996 and
1997, she worked on the 4 North nursing unit on the 7 a.m. to 7
p.m. shift. Since July 1991, her supervisor has been Marge
Sovacool, RN unit manager.
In the fall of 1996, Norman became actively involving in at-
tempting to organize professional employees at ACH, including
RNs, LPNs, lab, pharmacy, and respiratory therapy employees.
She spoke about organizing employees to Larry Stump and
Bobbie Powell—wife of Larry Powell, Local 684 president.
From November 1996 through January 1997, Norman urged
coworkers to organize and distributed about 50 union represen-
tation authorization cards and union literature in the nurses
lounge on 4 North and in designated “smokers’ shacks” on
hospital property located outside the hospital. Norman fre-
quently discussed the benefits of union organization with her
coworkers and carried an AFSCME-labeled tote bag to the
workplace. She also wore labeled hats to the ACH employee
parking lot which she removed after walking to her workstation
from the parking lot.
Norman was also deeply involved in supporting the strike
that began on November 7, 1996, which she characterized as
her “mission.” She visited the strike hall almost daily and
cooked for the strikers on her days off. The strike hall was
located directly across form ACH on Market Street.
Over the duration of the strike, ACH employed outside secu-
rity guards to patrol the campus. Powell testified that he ob-
served them carry hand-held video cameras trained upon the
coming and going of employees to and from strike headquar-
ters. Cameras were also observed on rooftops and in windows
of ACH buildings, which faced strike headquarters. Norman
testified that unidentified men, wearing dark clothing and ski
masks and holding shoulder-supported video cameras trained
upon her, followed her as the walked down the nearby side-
walk.
After the strike began in November, Norman, with Bobbie
Powell, formed a group to support striking employees and their
families. The group was known as “Nurses for a Brighter To-
morrow.” Norman and Powell enlisted help to gather gifts and
donations for the strikers. They placed fliers promoting
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1402
“Nurses for a Brighter Tomorrow” in ACH lounges. Norman
identified a particular flier that was posted in the lounge of 4
North that identified Powell and her as “Bobbie” and “Linda”
and listed their home telephones. They were named in newspa-
per articles, including the nursing publication “Nurses Weekly”
and the local newspaper, mentioning their efforts in support of
the strikers. Copies of the nursing publication were prevalent
in the hospital building.
Norman attended a union rally on December 14, 1996, that
took place on Arch Street in front of the hospital between 12
and 2 p.m. She wore a black coat and large floppy hat. A pe-
destrian bridge connecting the hospital and another building,
Professional Center North, spans Arch Street. Norman saw her
supervisor, Marge Sovacool, during the rally standing in the
walkway looking down at the rally. She also observed LPN
Donna Perdew standing with Sovacool for a period of time and
saw Sovacool pointing in her direction. Norman stood with
Powell during the rally. Powell also testified about the walk-
way incident and said that she observed Sovacool and Perdew
standing next to each other in the walkway. Powell observed
the two women talking to each other and then noticed that
Sovacool pointed towards Norman and her.
Sovacool testified as an adverse 611(c) witness called by
Counsel for the General Counsel. Her demeanor was not forth-
coming, but rather she was wary, guarded, hesitant, calculating,
and most unconvincing. She initially testified that she had “no
idea at all” that Norman was involved in organizing efforts by
the Union for the nursing staff. But then she admitted that she
was aware of the November 1996 organizing strike and had
heard hearsay that Norman was involved in the strike “some-
how.” Sovacool testified that she was “indifferent” to the
strike. She denied knowledge that Norman was involved with
“Nurses for a Brighter Tomorrow.” She admitted having seen
the posted fliers but denied having noticed the names at the
bottom and had no recollection of having personally removed
one from the bulletin board. Sovacool admitted that she had
observed copies of “Nurses Weekly” in the hospital and, more-
over, subscribed to delivery of the publication at her home.
Although she did not testify so, presumably she reads publica-
tions to which she subscribes. She admitted having observed,
at least briefly, the December 14, 1996 union rally across from
the hospital but did not recall having any discussion with Per-
dew about it.
Donna Perdew, employed at ACH for 18 years, testified for
the Acting General Counsel. She was spontaneous, sincere,
and convincing in demeanor and exhibited far more certainty
than Sovacool. I credit her testimony, especially since it was
not contradicted by Sovacool, who at best testified to a lack of
recollection. According to Perdew, she had observed Sovacool
read the posted flier, “Nurses for a Brighter tomorrow,” then
reach up and remove it, stating that it was not appropriate to be
posted there.16 Perdew further testified that she and Sovacool
stood together and observed the December 14, 1996 union rally
and read the picket signs which Sovacool characterized as
“inappropriate.” While they stood together and talked,
Sovacool pointed to the group of union supporters and asked if
it were not Bobbie Powell and Linda Norman with a big floppy

16 There is no complaint allegation relating to Sovacool’s removal of
the union leaflet from a bulletin board that was provided for employees
to put a variety of personal items.
hat among the supporters. Perdew claimed nearsightedness to
Sovacool and inability to discern identities without eyeglasses.
Sometime after the rally, Norman was approached by fellow
employee Cornue who asked to speak to her. Cornue ushered
Norman into a private conference room and told her that nurses
on the floor were upset and frightened about Norman’s discus-
sions about organizing. Cornue told her that she had discussed
the matter with Sovacool who told her to speak to Norman.
After this discussion, Norman stopped talking about organizing
on 4 North as frequently as she had in the past.
Sovacool’s testimony regarding the Cornue incident is mark-
edly disingenuous and ultimately contradicts her earlier cate-
gorical denial of knowledge about Norman’s union organizing
activities. At first Sovacool testified that Cornue, a LPN under
her supervision, had approached her with a complaint that Nor-
man had stirred up nurses in the lounge but that she, Sovacool,
did not ask what it was about. She then testified that without
knowing what the controversial subject matter was, she
instructed Cornue to go to Norman and tell her that when she
talks to her about “this,” it upsets Cornue and that Cornue does
not want to talk about it. Apparently realizing the absurdity of
such instructions without knowing the subject of the emotional
disruption, Sovacool, when prodded further, admitted that the
subject matter in fact related to union activities, the specific
nature of which she still insisted on having ignorance. I con-
clude that her credibility was totally undermined not only by
her demeanor and failures of recollection but also by her disin-
genuous evasiveness and self-contradiction; i.e., she clearly had
much more than some idea that Norman was engaged in union
organization activities. I find that she was well aware of it.17
On February 1, 1997, 1 day after the strike by members of
Local 684 settled and members were to be returned to work,
Sovacool issued a memo to all “med/surg staff” regarding “ex-
pectations.” In the memo, Sovacool stated that “there has been
a more positive working environment in this institution since
the beginning of November, 1996.” (This corresponds with the
time frame Local 684 members went out on strike.) Sovacool
went on to say:

This positive environment is what we must all strive to main-
tain. Remember the old saying: “If you’re not part of the so-
lution then you are part of the problem.”
b. The discipline
On February 6, 1997, Norman received a 2-day suspension
from Sovacool for refusing to take an emergency room report
on February 1, 1997, which allegedly delayed patient care.
Through the Respondent’s grievance procedure for nonunion
employees, the 2-day suspension was later reduced to a written
warning. Norman testified to the events leading to the disci-
pline in detail, without contradiction. Sovacool merely denied
that the discipline was motivated by Norman’s union activities.
Neither she nor any other Respondent witnesses contradicted
Norman. In fact, the Respondent called no witnesses on the
issue. Sovacool’s two memoranda of those events drafted on
February 3 were entered into evidence, but she herself did not
17 A February 3, 1997 memorandum from Sovacool to the RN Ad-
ministrator Director related in general terms unspecified complaints
from unidentified coworkers of Norman regarding her alleged unspeci-
fied abusiveness toward them. One complaint referred to such abu-
siveness by Norman upon her learning that the complaining coworker
had referred to a union organizing meeting in a conversation with
Sovacool.
SUMMA HEALTH SYSTEM 1403
testify as to those events. She was not even examined by the
Respondent. Accordingly, the following sequence of events is
based upon Norman’s uncontradicted testimony.18
Norman testified that 4 North was understaffed on February
1, 1997. The staffing pattern is normally four to five RNs, four
LPNs, and four support associates. On the date in question,
four RNs, three LPNs, and one support associate were respon-
sible for 36 patients. Norman was responsible for eight pa-
tients. During lunch breaks, this responsibility increased to 18
patients. At that time she was presented with conflicting priori-
ties that needed her attention.
While Norman was at the nurses station, one physician asked
for assistance in correcting a medication error that had been
made with respect to a patient the day before, another physician
asked her to sterilize a subclavean I.V.; at the same time, the
telephone rang. Norman picked up the telephone and an indi-
vidual from the emergency room (ER) was calling to give a
report on a patient that was due to come up to Room 461.
Norman testified that when a patient is brought up to the floor
from ER, a RN takes the patient report. At the time Norman
was not responsible for that room and told the caller that she
would attempt to find the nurse responsible room to take the
report. Norman learned that the regularly assigned nurse,
Karen Hegidus, was on her lunch break and later learned that
RN Janis Dozier was in charge of covering the room while
Hegidus was at lunch.
After Norman paged Hegidus and found that she was at
lunch, Norman returned to the desk and at that point Margaret
Bush, the secretary, returned from her lunchbreak. Norman
told Bush that someone in ER was on the telephone and needed
to give a report on the patient for Room 461. She indicated that
she could not find Hegidus and that Norman was not able to
take the call at that time. She instructed Bush to attempt to find
someone else to take the call or inform ER that they would be
called back.
Norman testified that faced with the conflicting demands for
her attention, she prioritized her work and determined that the
patient in need of the sterile dressing for the IV needed her
immediate attention. She explained that the IV is a sterile pro-
cedure and involves a catheter being inserted through the IV
into the main artery of the heart. If the dressing were left for
any length of time there would be a chance of infection. Her
second priority was to deal with the medication issue presented
by the other physician. Lastly, Norman’s third priority was to
take the report from ER or find someone else to take the report.
After Norman addressed the first two priorities, she testified
that she delegated the responsibility to find the nurse responsi-
ble for Room 461 to Bush.
When Norman used her professional judgment and priori-
tized the need to perform the IV dressing rather than take the
ER report, she knew that Dozier, the nurse in charge of the
room, should be returning from lunch. She also knew the room
had not been cleaned and, therefore, was not ready to receive a
new patient.
After completing the sterile dressing, Norman finished her
search for the medication error that she was asked to locate.
She assumed that Bush had found Dozier and the ER report had

18 Norman’s arguably inconsistent testimony as to whether or not she
actually ate or “took” lunch on that date is no basis to discredit her
testimony as to the other events in absence of contradicting sworn
testimonial evidence.
been taken. After the search for medication error, Norman
reported off (i.e., updated fellow RNs about patients) to Dozier
who had returned to the station and attempted to take lunch.
With her lunch in her hand in the break room, she heard a
commotion at the nurses station. She went to see what was
happening and observed Sovacool, Dozier, Bush, and Byack at
the station. Sovacool was visibly angry and upset over the
failure of anyone to take the ER report and loudly admonished
everyone in sight, including Dozier and Bush.
Norman interjected and told Sovacool that she was the nurse
who initially did not take the call. Sovacool told Norman that it
was not ever permissible to refuse to take a call from ER.
Norman attempted to tell Sovacool that she did not refuse the
call but that she said she was unable to take the call. Norman
tried to tell Sovacool about the other problems with Dr. Hol-
comb and Dr. Sanders. Norman characterized Sovacool’s de-
meanor as “wild.” Norman tried to tell her that she had priori-
tized the problems and responded accordingly. Sovacool told
her she did not want to hear it and that someone had to take that
call.
Norman set her hot lunch down and took the report from ER.
She explained that she did so only because of Sovacool’s “rant-
ing and raving”. After taking the report, she was upset about
how Sovacool had spoken to her in front of the other staff. The
ACH North Code of Conduct called for all staff to work as a
team and that each staff member would be treated as an equal
and given mutual respect. She felt Sovacool had not followed
these precepts.
Norman walked back to the break room where Sovacool was
and, apparently in a loud voice, asked her why she had been so
“mean.” Sovacool denied that she had been mean and asked
Norman to lower her voice. Norman, noting that both she and
Sovacool were speaking at the same level, said Sovacool
should also lower her voice. She tried again to explain to
Sovacool the problems and staffing levels that were present on
the floor when the ER call came to the unit. Sovacool told
Norman that she was not permitted to discuss staffing levels
and that she was going to write up Norman.
On February 2, Sovacool ordered Bush to write a statement
about the incident. Her statement confirmed that Norman took
the ER call, failed to take the report, and instead told ER she
could not take the call at that time and thereafter tried to find a
nurse. The statement goes on to state that Sovacool “told me to
write up the incident or be writing up myself.” She also con-
firmed that the room was not ready at the time of the call.
Subsequently, Norman received a notice of disciplinary ac-
tion. 19 Sovacool then asked Norman to come to her office, and
Norman asked to have a fellow employee as a witness.
Sovacool denied the request even though she arranged to have a
management witness present. Eventually, she let Dozier ac-
company Norman as her witness. At the beginning of the meet-
ing, Sovacool told Norman that she wanted to talk to her about
concerns that people were having about Norman on the floor
19 The disciplinary notice prepared by Sovacool in effect rejected her
priority argument and concluded that it was a breach of her duty to
have left the station before assuring actual patient coverage for a room
for which she had no responsibility. The document further accused
Norman of having confronted Sovacool thereafter at the station in an
aggressive, accusatory manner while “slamming” papers and charts
about, thus violating ACH behavior policy. However, there was no
testimonial evidence to support this memorandum. I therefore must
credit Norman’s testimonial account.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1404
and Norman’s conversation with Cornue. Norman responded,
“You mean about my talk of organizing or Union activities and
talk of the strike.” Sovacool said “yes, that and other con-
cerns.”20 Sovacool then discussed the events of February 1,
1997, and stated that Norman had displayed unacceptable work
performance and had engaged in inappropriate behavior by
being loud and aggressive. Norman retorted to Sovacool that
she was upset but no louder than Sovacool. Sovacool also
charged that Norman had gone to lunch without reporting off
work. Norman told Sovacool she had reported off for lunch on
February 1 and later obtained a statement from Byack to con-
firm this fact. Norman reiterated to Sovacool the problems that
had occurred and the priorities she had determined. She also
alluded to the fact that Sovacool had asked for statements from
Bush and others but had never asked for Norman’s version of
events. Sovacool said that it did not matter and that Norman’s
performance was unacceptable. Sovacool issued Norman a 2-
day suspension. According to Sovacool’s February 3 memo-
randa, the thrust of the alleged breach of duty is that there is no
excuse for refusing to take an immediate ER report, for which
patient care was delayed. Secondarily, Norman was too ag-
gressive in the nurse station confrontation.
Norman filed a grievance and the suspension was reduced to
a written reprimand. She subsequently grieved the written
reprimand, which resulted in the reduced discipline.
ACH maintains a policy entitled “Disciplinary Process and
Rules of Conduct.” The policy sets out a progressive discipli-
nary procedure consisting of formal counseling, written warn-
ing, written reprimand, suspension, and discharge. According
to the policy, these progressive disciplinary steps can only be
bypassed if an employee commits a serious group 2 offense.
Failure to perform work at minimum standards is a group 1
offense, and Norman had never been disciplined for misconduct
or work performance.
A review of the disciplinary records of other ACH employ-
ees who have been charged with unacceptable work perform-
ance and/or inappropriate behavior evidences that incidents
involving much more patient impactive conduct than that en-
gaged in by Norman resulted in the same initial discipline ad-
ministered to Norman. These incidents included nurse’s having
wrong IV, which could have caused physical injury to the pa-
tient—2-day suspension; nurse’s administering medications to
patients without a doctor’s order—2-day suspension; grossly
inappropriate comments to patients—written warning.
2. Analysis
The General Counsel has the burden of proving that pro-
tected activity was at least a partial motivating factor in the
Employer’s adverse employment decision. Having done so, the
burden then shifts to the Respondent to show that lawful rea-
sons necessarily would have caused that decision. Wright Line,
251 NLRB 1083 (1980); NLRB v. Transportation Management
Corp., 462 U.S. 393, 394 fn. 7 (1983).
The Wright Line burden of proof imposed upon the General
Counsel may be sustained with evidence short of direct evi-
dence of motivation, i.e., inferential evidence arising from a
variety of circumstances, i.e., union animus, timing, pretext,
etc. Furthermore, it may be found that where the Respondent’s
proffered nondiscriminatory motivational explanation is false,
even in the absence of direct evidence of motivation, the trier of

20 Along with Norman’s personnel file, Sovacool had spread before
her a compilation of unidentified newspaper clippings.
fact may infer unlawful motivation. Shattuck Denn Mining
Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966); Abbey’s
Transportation Services v. NLRB, 837 F.2d 575, 579 (2d Cir.
1988); Rain Ware, Inc., 735 F.2d 1349, 1354 (7th Cir. 1984);
Williams Contracting, Inc., 309 NLRB 433 (1992); and Fluor
Daniel, Inc., 304 NLRB 970 (1991).
Motivation of union animus may also be inferred from the
record as a whole, where an employer’s proffered explanation
is implausible or a combination of factors circumstantially sup-
port such inference. Union Tribune Co. v. NLRB, 1 F.3d 486,
490–491 (7th Cir. 1993). Data Systems Corp., 305 NLRB 219
(1991); Fluor Daniel, Inc., supra. Direct evidence of union
animus is not required to support such inference. NLRB v. 50-
White Freight Lines, Inc., 969 F.2d 401 (7th Cir. 1992).
An inference of animus has been found to have been appro-
priately raised by timing, knowledge, and the manner of dis-
charge implementation. Sawyer of Napa, 300 NLRB 131, 150
(1990), citing NLRB v. Rain Ware, 732 F.2d 1349, 1354 (7th
Cir. 1984). However, mere coincidence alone, without other
circumstantial evidence, may not always support an inference
of animus. Chicago Tribune Co. v. NLRB, 962 F.2d 712 (7th
Cir. 1992).
The Acting General Counsel had adduced evidence that the
Respondent’s discipline deciding agent had knowledge of
Norman’s union organizing efforts. Further, there is sufficient
evidence upon which to infer that Sovacool was aware of Nor-
man’s leadership role in those activities. The Acting General
Counsel had adduced evidence of Sovacool’s disapproval of
union representation efforts for nursing personnel. That disap-
proval was strong enough to have motivated her to remove an
organizational flier from a bulletin board allotted for free use
by employees. Sovacool was clearly adverse to Norman’s so-
licitation of union support in the nurses’ lounge.21 In one of her
memoranda, it was described by an alleged complainant as
causing “trouble” in the unit. Sovacool grudgingly admitted
that these troublesome conversations were union related and
that she was aware of Norman’s union activities. When the
disciplinary confrontation commenced, Sovacool immediately
related it to those conversations as at least one of the causes for
the confrontation.
Additionally, the Acting General Counsel has established
that Norman was initially disproportionately punished for non-
patient impactive alleged behavior. Contrary to the disciplinary
notice given to Norman, there is no evidence of any delay in
patient care. On the contrary, the room was not even prepared
for the patient when the first ER call was deferred. The Acting
General Counsel has shown that although Sovacool was ini-
tially genuinely upset on February 1 over the failure of those
present at the nurses’ station by berating all of them, she
quickly directed the focus of her attention solely upon Norman.
Sovacool refused to consider Norman’s explanation, sought
statements from others but not Norman, disregarded the excul-
patory statement of Bush, disregarded the potential culpability
of those nurses who had responsibility for room 461 and the
secretary charged by Norman to locate one of them, and issued
the initially disproportionate discipline.
In the absence of credible, contradicting, sworn testimonial
evidence, I must infer that Sovacool’s issuance of discipline to
21 The record in whole establishes the Respondent’s general animos-
ity evidenced by other unfair labor practices
SUMMA HEALTH SYSTEM 1405
Norman was at least partially motivated by her union activities
and was not merely coincidental to it.
The Respondent failed to adduce testimonial evidence in
support of facts alleged in Sovacool’s February 3 memoranda
which might have supported a showing that Norman would
have been justifiably disciplined with a written warning regard-
less of her union activities. Further, the Respondent offered no
evidence that Norman’s explanation to Sovacool would not
have exculpated her under ACH’s ongoing policy or practice,
and it adduced no evidence of patient impact. It proffered no
evidence to show why Norman should have been the sole focus
of discipline as she apparently had been. According, I find that
the Acting General Counsel satisfied his burden of proof under
Wright Line, whereas the Respondent did not. Therefore, I find
that the Respondent violated Section 8(a)(1) and (3) of the Act
by the discriminatory issuance of a disciplinary warning to
Linda Norman on February 6, 1997, as alleged in the com-
plaint.
CONCLUSIONS OF LAW
1. As found above, the Respondent is an employer engaged
in commerce within the meaning of Section 2(6) and (7) of the
Act, and Local 684 and Council 8 are labor organizations
within the meaning of Section 2(5) of the Act and the exclusive
bargaining representatives of an appropriate bargaining unit of
the Respondent’s employees as set forth in article II, section 2
of the collective-bargaining agreement effective from Novem-
ber 23, 1992, to November 22, 1995.
2. From about January 21, 1994, until 1995, the Respondent
rendered unlawful assistance and support to and dominated and
interfered with the administration of the Maintenance sub-PET
team and the Patient Management Pilot Unit sub-PET team,
found above to be labor organizations within the meaning of
the Act, and violated Section 8(a)(1) and (2) of the Act. Fur-
ther, by such conduct and by dealing with them thereafter, it
thereby in effect dealt directly with the bargaining unit employ-
ees concerning mandatory subjects of bargaining while bypass-
ing the duly authorized exclusive bargaining unit representative
and breached its bargaining obligations under the Act, thus
violating Section 8(a)(1) and (5) of the Act.
3. Commencing in February 1994 and thereafter in its deal-
ings with the above-named sub-PET teams, the Respondent
unilaterally transferred bargaining unit work inclusive of main-
tenance, dietary, housekeeping, transportation, distribution
(supplies), and phlebotomy duties to nonbargaining unit em-
ployees—a mandatory subject of bargaining—without provid-
ing notice or bargaining opportunity to the exclusive bargaining
unit representative in violation of Section 8(a)(1) and (5) of the
Act.
4. During the period October 1995 to April 1997, by its
overall conduct calculated to avoid reaching agreement upon a
succeeding collective-bargaining contract, inclusive of its ad-
vancement of and adherence to collective-bargaining proposals
arrogating to it sole, exclusive, and nonreviewable rights re-
garding the transfer and assignment of bargaining unit work to
nonunit full-time and nonunit part-time employees and the right
to unilaterally determine wages after the first year of the con-
tract, the Respondent bargained in bad faith with the exclusive
bargaining representative during negotiations for a succeeding
contract and thus violated Section 8(a)(1) and (5) of the Act.
5. The strike conducted by Local 684 and Council 8 against
the Respondent from November 7, 1996, to February 3, 1997,
was caused by the Respondent’s unfair labor practices as found
above in this Decision.
6. The Respondent breached its bargaining obligations under
the Act and thereby Section 8(a)(1) and (5) of the Act by failing
or refusing to fully comply or tardily complying with the exclu-
sive bargaining representative’s requests for information rele-
vant to and necessary for negotiations or administration of a
collective-bargaining agreement, including the investigation
and processing of grievances, necessary for the performance of
its representational duties as set forth by the following requests:

DATE COMMUNICA-
TION

SUBJECT MATTER

March 9, 1994 Local 684 Letter Failure to provide February 7,
1993 job postings for full-time
Stock Handler, Driver, Cook 3,
and Pharmacy Tech positions.
Sept. 1, 1994 Local 684 Letter Tardy, cryptic re-sponse to
information relating to sus-
pected work performed by unit
employees at the Bath Radiol-
ogy facility.
Sept. 6, 1994 Local 684 Letter Failure to provide names of
and hours worked by electri-
cians and painters at the O’Neil
Building.
Sept. 6, 1994 Local 684 Letter Failure to provide job postings
of Emergency Room Ortho
Tech Positions. (Other infor-
mation request-ed was tardily
pro duced.)
Sept. 7, 1994 Local 684 Letter 2-year delay in providing
information regarding the
alleged bargaining unit place-
ment of Service Coordinators.
Aug. 2, 1996 Council 8 Local

Failure to provide information
relevant and necessary for the
processing of a grievance
relating to the unit placement
of the Radiology Receptionist
position; i.e., job postings, job
descriptions, wage rates, iden-
tity of employees in such
position.
Sept. 6, 1996 Council 8 Letter Failure to provide work unit
equalization overtime re cords
and offering sheet for the
Catering Kitchen.
Sept. 13, 1996 Council 8 Letter Failure to provide weekly list
of new hires.

7. By prohibiting the October 3, 1996 distribution of union
organizing literature by its employees on their nonworking time
in the hospital cafeteria and in the hallway of building 511, the
Respondent violated Section 8(a)(1) of the Act.
8. On February 6, 1997, the Respondent violated Section
8(a)(1) and (3) of the Act by discriminatorily issuing a written
disciplinary warning to employee Linda Norman because of her
union activities.
THE REMEDY
Having found that the Respondent engaged in unfair labor
practices in violation of Section 8(a)(1), (2), and (3) of the Act,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1406
I recommend that it be ordered to cease and desist therefrom
and take certain affirmative action designed to effectuate the
purposes of the Act.
Having found that the Respondent unlawfully dominated,
supported, assisted, and interfered with the administration of
the Maintenance sub-PET team at its Akron City Hospital facil-
ity, I recommend that it be ordered to disestablish and cease all
assistance and support to them to the extent that it has not al-
ready done so. Having found that the Respondent unlawfully
bargained with the forenamed PET teams about mandatory
bargaining subjects and unilaterally transferred bargaining unit
work to nonbargaining unit employees by means of the PET
team bargaining process, I recommend that the Respondent be
ordered to rescind those unilateral changes effectuated by such
transfer, restore that work to unit employees, and make whole
all unit employees who at the compliance stage of this proceed-
ing are determined to have lost earnings and other benefits as a
result of the Respondent’s unlawful February 1994 transfer of
bargaining unit work. Backpay shall be computed in accor-
dance with Ogle Protection Service, 183 NLRB 682 (1970),
enfd. 444 F.2d 502 (6th Cir. 1971), with interest as prescribed
in New Horizons for the Retarded, 283 NLRB 1173 (1987).
Having found that the Respondent unlawfully failed and re-
fused to comply or tardily complied with the requests of the
bargaining unit’s representative for information relevant and
necessary for the negotiation or administration of a collective-
bargaining agreement, including grievance investigation and
processing, I recommend that the Respondent be ordered to
comply with those requests identified and described above in
the Conclusion of Law section of this decision to the extent that
it has not already done so.
Having found that the Respondent unlawfully issued a disci-
plinary warning to Linda Norman on or about February 6,
1997, for certain conduct alleged to have occurred on February
1, 1997, I recommend that the Respondent rescind such warn-
ing and expunge all records of that personnel action and the
rescinded order related to that alleged conduct, wherever such
records are located in any of its files, and inform Linda Norman
in writing that it has been done so.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended22
ORDER
The Respondent, Summa Health System, Inc., Akron, Ohio,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Dominating, assisting, supporting, and interfering with
the administration of the Maintenance sub-PET team and Pa-
tient Management Pilot Unit sub-PET team or their successors
at its Akron City Hospital, or bargaining with them or their
successors concerning mandatory subjects of bargaining.
(b) Refusing to bargain in good faith with American Federa-
tion of State, County and Municipal Employees, Local No. 784,
AFL–CIO, and American Federation of State, County and Mu-
nicipal Employees, Ohio Council 8, AFL–CIO, as exclusive
bargaining representative for the appropriate unit of employees

22 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.
as set forth in the November 23, 1992, to November 22, 1995
collective-bargaining agreement by:
(1) Dealing directly with employees concerning mandatory
bargaining subjects by means of its PET team bargaining proc-
ess, bypassing their exclusive bargaining representative, and
unilaterally and without notice or bargaining opportunity pro-
vided to it, transferring bargaining unit work to nonbargaining
unit employees.
(2) Engaging in a course of bad-faith bargaining calculated
to avoid the agreement upon a collective-bargaining agreement.
(3) Failing and refusing to fully comply or tardily complying
with the exclusive bargaining representative’s request for in-
formation relevant to and necessary for the negotiation or ad-
ministration of a collective-bargaining agreement, including the
investigation and processing of grievances, and necessary for
the performance of its representational duties.
(c) Disparately and discriminatorily enforcing its solicita-
tion/distribution rules against employees who attempt to dis-
tribute union organizing literature on their nonworking time in
nonwork, nonpatient care areas of its Akron City Hospital
building complex, including the cafeteria and building 511
hallway.
(d) Unlawfully and discriminatorily issuing pretextual disci-
plinary warnings or other discipline against its employees be-
cause of their sympathies, membership, support, or activities on
behalf of American Federation of State, County and Municipal
Employees, Local No. 684, AFL–CIO, and American Federa-
tion of State, County and Municipal Employees, Ohio Council
8, AFL–CIO, or any other labor organization.
(e) In any other manner interfering with, restraining, or co-
ercing employees in the exercise of the rights guaranteed them
by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) To the extent it has not already done so, immediately dis-
establish and cease giving assistance or any other support to the
Maintenance sub-PET team and the Patient Management Pilot
Unit sub-PET team or their successors at its Akron City Hospi-
tal facility or bargaining with them or their successors concern-
ing mandatory subjects of bargaining.
(b) On request, bargain in good faith with American Federa-
tion of State, County and Municipal Employees, Local No. 684,
AFL–CIO, and American Federation of State, County and Mu-
nicipal Employees, Ohio Council 8, AFL–CIO, as the exclusive
representative of employees in the appropriate unit concerning
all lawful mandatory subjects of bargaining, including the
assignment or transfer of bargaining unit work to full-time or
part-time, nonbargaining unit employees and wage increases
and, if an understanding is reached, execute a signed written
agreement.
(c) Rescind the unilateral changes effected by the unlawful
February 1994 transfer of bargaining unit work to non-
bargaining unit employees and restore that work to bargaining
unit employees, and make them whole for any loss of earnings
or benefits they may have suffered in the manner set forth in
the remedy section of this decision.
(d) To the extent it has not already done so, immediately
comply with the requests of the bargaining unit’s representative
for information relevant and necessary for the negotiation or
administration of a collective bargaining agreement, including
grievance investigation and processing, or necessary for the
performance of its representation duties set forth in the requests
SUMMA HEALTH SYSTEM 1407
made by letters of March 9, September 1, 6, and 7, 1994; Au-
gust 12, September 6 and 13, 1996, as identified and described
in the Conclusions of Law in this decision.
(e) Within 14 days from the date of this Order, rescind the
unlawful disciplinary warning issued to employee Linda Nor-
man on or about February 6, 1997, for certain conduct alleged
to have occurred on February 1, 1997, and expunge all records
of that personnel action and the rescinded suspension order
related to that alleged conduct, wherever such records are lo-
cated in any of its files, and inform Linda Norman in writing
that this has been done so.
(f) Allow employees on their nonworking time to distribute
union organizing literature in nonwork, nonpatient care areas of
its Akron City Hospital complex, including the cafeteria and
the building 511 hallway, to the same extent and manner per-
mitted other employee distributions.
(g) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all payroll
records, social security payment records, timecards, personnel
records and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(h) Within 14 days after service by the Region, post at its
Akron City Hospital in Akron, Ohio, copies of the attached
notice marked “Appendix.”23 Copies of the notice, on forms
provided by the Regional Director for Region 8, after being
signed by the Respondent's authorized representative, shall be
posted by the Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these pro-
ceedings, the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the
Respondent at any time since January 21, 1994.
(i) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated the
National Labor Relations Act and has ordered us to post and abide
by this notice.

WE WILL NOT dominate, assist, support, or interfere with the
administration of the Maintenance sub-PET team and Patient
Management Pilot Unit sub-PET team or their successors at our
Akron City Hospital, or bargain with them or their successors
concerning mandatory subjects of bargaining.

23 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
WE WILL NOT refuse to bargain in good faith with American
Federation of State, County and Municipal Employees, Local
No. 684, AFL–CIO, and American Federation of State, County
and Municipal Employees, Ohio Council 8, AFL–CIO, as ex-
clusive bargaining representative for the appropriate unit of
employees as set forth in the November 23, 1992, to November
22, 1995 collective-bargaining agreement by:

(1) Dealing directly with employees concerning man-
datory bargaining subjects by means of our PET team bar-
gaining process, bypassing their exclusive bargaining rep-
resentative, and unilaterally and without notice or bargain-
ing opportunity provided to it, transferring bargaining unit
work to nonbargaining unit employees.
(2) Engaging in a course of bad-faith bargaining calcu-
lated to avoid the agreement upon a collective-bargaining
agreement.
(3) Failing and refusing to fully comply or tardily com-
plying with the exclusive bargaining representative’s
request for information relevant to and necessary for the
negotiation or administration of a collective-bargaining
agreement, including the investigation and processing of
grievances, and necessary for the performance of its repre-
sentational duties.

WE WILL NOT disparately and discriminatorily enforce our so-
licitation/distribution rules against employees who attempt to
distribute union organizing literature on their nonworking time
in nonwork, non-patient care areas of our Akron City Hospital
building complex, including the cafeteria and building 511
hallway.
WE WILL NOT unlawfully and discriminatorily issue pretextual
disciplinary warnings or other discipline against our employees
because of their sympathies, membership, support, or activities
on behalf of American Federation of State, County and Mu-
nicipal Employees, Local No. 684, AFL–CIO, and American
Federation of State, County and Municipal Employees, Ohio
Council 8, AFL–CIO, or any other labor organization.
WE WILL NOT in any other manner interfere with, restrain, or
coerce employees in the exercise of the rights guaranteed them
by Section 7 of the Act.
WE WILL to the extent we have not already done so, immedi-
ately disestablish and cease giving assistance or any other sup-
port to the Maintenance sub-PET team and the Patient Man-
agement Pilot Unit sub-PET team or their successors at our
Akron City Hospital facility, or bargaining with them or their
successors concerning mandatory subjects of bargaining.
WE WILL, on request, bargain in good faith with American
Federation of State, County and Municipal Employees, Local
No. 684, AFL–CIO, and American Federation of State, County
and Municipal Employees, Ohio Council 8, AFL–CIO, as the
exclusive representative of employees in the appropriate unit
concerning all lawful mandatory subjects of bargaining, includ-
ing the assignment or transfer of bargaining unit work to full-
time or part-time, nonbargaining unit employees and wage
increases and, if an understanding is reached, execute a signed
written agreement.
WE WILL rescind the unilateral changes effected by the un-
lawful February 1994 transfer of bargaining unit work to non-
bargaining unit employees and restore that work to bargaining
unit employees, and make them whole for any loss of earnings
or benefits they may have suffered.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1408
WE WILL, to the extent we have not already done so, immedi-
ately comply with the requests of the bargaining unit’s repre-
sentative for information relevant and necessary for the nego-
tiation or administration of a collective-bargaining agreement,
including grievance investigation and processing, or necessary
for the performance of its representation duties set forth in the
requests made by letters of March 9, September 1, 6, and 7,
1994; August 12, September 6 and 13, 1996.
WE WILL, within 14 days from the date of this Order, rescind
the unlawful disciplinary warning issued to employee Linda
Norman on or about February 6, 1997, for certain conduct al-
leged to have occurred on February 1, 1997, and expunge all
records of that personnel action and the rescinded suspension
order related to that alleged conduct, wherever such records are
located in any of our files, and inform Linda Norman in writing
that this has been done so.
WE WILL allow employees on their nonworking time to dis-
tribute union organizing literature in nonwork, non-patient care
areas of our Akron City Hospital complex, including the cafete-
ria and the building 511 hallway, to the same extent and man-
ner permitted other employee distributions.

SUMMA HEALTH SYSTEM, INC.