VHS of Michigan, Inc. d/b/a Detroit Medical Center (DMC)

National Labor Relations Board - Administrative Judge Opinions

Jul 23, 2019

07-CA-205394 (N.L.R.B. Jul. 23, 2019)

JD–59–19
Detroit, MI
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
VHS OF MICHIGAN, INC. d/b/a
DETROIT MEDICAL CENTER (DMC)
and Case No. 07-CA-205394
LOCAL 283, INTERNATIONAL
BROTHERHOOD OF TEAMSTERS (IBT)
Robert A. Drzyzga, Esq., for the General Counsel.
Shaun P. Ayer, (The Allen Law Group, PC, Detroit, Michigan)
for the Respondent.
DECISION
STATEMENT OF THE CASE
Arthur J. Amchan, Administrative Law Judge. This case was tried in Detroit, Michigan
on June 4, 2019. Teamsters Local 283 filed the charge in this matter on August 29, 2017. The
General Counsel issued a complaint on March 29, 2018.
The General Counsel alleges that Respondent violated Section 8(a)(5) and (1) in
changing the circumstances under which employees in the bargaining unit covering laboratory
assistants and customer service representatives would be paid overtime.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, Detroit Medical Center (DMC), a corporation, operates hospitals at its
facilities in Detroit, Michigan where it derived gross revenues in excess of $250,000 in 2018.
During 2018, DMC purchased and received goods and materials valued in excess of $5,000
JD–59–19
2
directly from points outside of Michigan. Respondent admits, and I find, that it is an employer
engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the
Union, Teamsters Local 283, is a labor organization within the meaning of Section 2(5) of the
Act.
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II. ALLEGED UNFAIR LABOR PRACTICES
For at least 16 years, members of the DMC bargaining unit covering senior laboratory
assistants, laboratory assistants and customer service representatives have been paid overtime
(time and a half) for any shift that exceeded 8 hours, regardless of the number of hours worked in 10
a week. These employees are members of 1 of 3 bargaining units represented by Teamsters
Local 283.
At a meeting with union stewards on June 23, 2017, Jonita Edwards, the human resources
director for DMC, announced that effective July 9, 2017 Respondent would be making a change 15
in its pay practices. After July 9, employees would only be paid overtime if they worked more
than 40 hours a week. These changes are set forth in detail in G.C. Exh. 10. Respondent made it
clear that it believed it did not have to give the Union advance notice of this change or give the
Union an opportunity to bargain over it. Melissa Berger, one of the union stewards, asked
Edwards how DMC could make such change without the presence union business representative 20
Steve Hicks, the union’s lead negotiator in collective bargaining.1 Edwards replied that the
DMC could make such a change unilaterally to conform to the policies of Tenet Healthcare, its
parent company.2
At the time of the change DMC and the Union were in negotiations for a successor 25
agreement to their January 1, 2012-December 31, 2014 collective bargaining agreement. This
agreement has been extended every 45 days since its expiration and is currently still in force.
While the parties disagree as to whether the extension has been continuous, they agree that the
contract was in force at the time the overtime calculation changed in June-July 2017.
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Respondent contends that it was entitled to unilaterally make this change pursuant to
Article 7, Section 1(A) of the collective bargaining agreement. That provision states:
Recognizing that the provisions of health care services may require regular work on seven
days per week, the regular work schedule for a full -time employee shall consist of eighty 35
(80) hours per 2 -week period and eight (8) hours per workday. The Employer reserves the
right to change the regular work schedule to forty (40) hours, per week. This schedule may
be Monday through Friday or various alternate seven-day operations schedules with four (4)
days off, within the two-week period, for full time employees.3

1 Hicks testified that he did not find out about the change until July 13, 2017, at a bargaining session.
2 Tenet purchased DMC from Vanguard Health sometime prior to 2014.
3 This provision is consistent with Section 7(j) of the Fair Labor Standards Act, which has special
provisions for the health care industry.
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3
This language has been in each of the collective bargaining agreements between the parties
since January 1, 2006, G.C. Exhs. 2, 3 and 4. Article 7, Section 4 of the collective bargaining
agreement covers overtime, but does not and has not since January 1, 2006, specifically
addressed the conditions upon which overtime will be paid. Nothing in the contract states how 5
many hours in a day, week or pay period an employee must work to be entitled to overtime pay.
As stated previously, since 2006 until July 9, 2017, unit employees were paid overtime if they
worked more than 8 hours in any shift, regardless of the number of hours worked in a week or bi-
weekly period. Nevertheless, Respondent contends that Section 1(A) allows it to cease paying
overtime to unit employees who work over 8 hours in a single shift despite the fact that it had 10
been consistently doing so for 11 years.
ANALYSIS
An employer violates Section 8(a)(5) and (1) of the Act if it makes a material unilateral 15
change in the terms and conditions of employment during the course of a collective-bargaining
relationship on matters that are mandatory subjects of bargaining, NLRB v. Katz, 369 U.S. 736,
743 (1962). A change in a long-standing method of calculation of when employees are eligible
for overtime pay is a mandatory subject of bargaining, Chef’s Pantry, 274 NLRB 775 fn. 6
(1985). An employer that makes a change in this method unilaterally, violates Section 8(a)(5) 20
and (1) of the Act, Intermountain Rural Electric Association, 305 NLRB 783, 787-88 (1991).
I conclude that the Board’s decision in Intermountain Rural Electric Association is
dispositive of this case. Intermountain had an established practice of computing eligibility for
overtime pay for all hours for which an employee was compensated, including vacation and sick 25
leave. In 1980, Intermountain succeeded in changing the contract language to require employees
to make up paid time off before being paid at the premium overtime rate. According to the
contract, employees became eligible for overtime pay only if they worked more than 8 hours a
day or 40 hours per week. Despite this change in the contract, Intermountain continued to pay
the overtime rate for all hours for which employees were compensated. In 1989 Intermountain 30
unilaterally ceased this practice and refused to pay overtime rates unless an employee actually
worked 40 hours a week or a full 8-hour day. The Board found this to be an illegal unilateral
change.4
An employer’s practices, even if not required by a collective bargaining agreement, 35
which are regular and long-standing, rather than a random or intermittent, become terms and
conditions of unit employees’ employment, which cannot be altered without offering their
collective bargaining representative notice and an opportunity to bargain over the proposed
change, Sunoco, Inc., 349 NLRB 240, 244 (2007); Granite City Steel Co.,167 NLRB 310, 315
(1967); Queen Mary Restaurants Corp. v. NLRB, 560 NLRB 403, 408 (9th Cir. 1977); Exxon 40
Shipping Co., 291 NLRB 489, 493 (1988); B & D Plastics, 302 NLRB 245n. 2 (1991); DMI
Distribution of Delaware, 334 NLRB 409, 411 (2001); The Sacramento Union, 258 NLRB 1074,

4 The Board reversed the judge’s conclusion in Intermountain that the Union had waived its
bargaining rights over this change. In the instant case, Respondent argues that the language of the
collective bargaining agreement (or its interpretation of the contract language) constitutes a waiver of the
Union’s bargaining rights. This argument is foreclosed by the Intermountain decision. An established
past practice supersedes contract language that is inconsistent with it.
JD–59–19
4
1075-1076 (1981). During negotiations, an employer’s obligation to refrain from unilateral
changes extends beyond the mere duty to give notice and an opportunity to bargain, it
encompasses a duty to refrain from implementation at all, unless and until an overall impasse has
been reached on bargaining for an agreement as a whole, Bottom Line Enterprises, 302 NLRB
373, 374 (1991) enfd. 15 F. 3d 1087 (9th Cir. 1991). Respondent does not contend that an overall 5
impasse was reached on or prior to July 9, 2017. Respondent’s long-standing and consistent
practice of paying unit employees the overtime rate when they worked more than 8 hours in a
shift is such a term and condition of employment that cannot be changed unilaterally.
CONCLUSION OF LAW10
Respondent, VHS of Michigan violated Section 8(a)(5) and (1) of the Act by unilaterally
changing its policies as to when unit employees were eligible for overtime pay.
REMEDY15
Having found that the Respondent has engaged in certain unfair labor practices, I shall
order it to cease and desist therefrom and to take certain affirmative action designed to effectuate
the policies of the Act.
20
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended5
ORDER
25
The Respondent, VHS of Michigan, Inc., d/b/a Detroit Medical Center, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Unilaterally changing its policies as to the eligibility of employees for overtime 30
pay.
(b) In any like or related manner interfering with, restraining, or coercing employees
in the exercise of the rights guaranteed them by Section 7 of the Act.
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2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Upon request of the Union, restore its established past practice with regard to
eligibility for overtime pay, e.g., paying time and a half for any hours worked in
excess of 8 in one shift.

5 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be deemed waived for all purposes.
JD–59–19
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(b) Before implementing any changes in the wages, hours and other terms and
conditions of employment of unit employees, notify and upon request, bargain
collectively and in good faith with the Union, Teamsters Local 283 as the
exclusive bargaining representative of its senior laboratory assistants, laboratory 5
assistants and customer service representatives. During collective bargaining
negotiations refrain from making implementation of any unilateral changes unless
and until an overall impasse has been reached on bargaining for an agreement as a
whole.
10
(c) Make whole unit employees for any loss of pay or other benefits they may have
suffered as a result of the unlawful conduct in the manner set forth in Ogle
Protection Services, 183 NLRB 662, 683 (1970) enfd. 444 F. 2d 502 (6th Cir.
1971) with interest as prescribed in New Horizons, 283 NLRB 1173 (1987),
compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 15
No. 8 (2010).
(d) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place
designated by the Board or its agents, all payroll records, social security payment 20
records, timecards, personnel records and reports, and all other records, including
an electronic copy of such records if stored in electronic form, necessary to
analyze the amount of backpay due under the terms of this Order.
(e) Within 14 days after service by the Region, post at its Detroit, Michigan facilities 25
copies of the attached notice marked “Appendix.”6 Copies of the notice, on forms
provided by the Regional Director for Region 7 after being signed by the
Respondent’s authorized representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous places including all places
where notices to employees are customarily posted. In addition to physical 30
posting of paper notices, the notices shall be distributed electronically, such as by
email, posting on an intranet or an internet site, and/or other electronic means, if
the Respondent customarily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to ensure that the notices are
not altered, defaced, or covered by any other material. In the event that, during the 35
pendency of these proceedings, 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 July 9, 2017.

6 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 National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
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(f) 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.
5
Dated, Washington, D.C. July 23, 2019
_
Arthur J. Amchan10
Administrative Law Judge
a,/,/,0 at.d.A,_
JD–59–19
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT unilaterally changing our policies as to the eligibility of employees for
overtime pay.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL upon request from the Union, restore our established past practice with regard to
eligibility for overtime pay, e.g., paying time and a half for any hours worked in excess of 8 in
one shift.
WE WILL make unit employees whole for any loss of pay or other benefits they may have
suffered as a result of our illegal unilateral change as to the eligibility of unit employees for
overtime pay, with interest compounded daily.
JD–59–19
WE WILL bargain in good faith with Local 283 of the International Brotherhood of Teamsters
as the exclusive collective bargaining representative of our senior laboratory assistants,
laboratory assistants and customer service representatives.
VHS OF MICHIGAN, INC. d/b/a
DETROIT MEDICAL CENTER (DMC)
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
477 Michigan Avenue, Room 300, Detroit, MI 48226-2569
(313) 226-3200, Hours: 8:15 a.m. to 4:45 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/07-CA-205394 or by using the QR code
below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations
Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (313) 226-3244.