WILKES-BARRE HOSPITAL COMPANY, LLC

National Labor Relations Board - Administrative Judge Opinions

Nov 17, 2014

04-CA-123748 (N.L.R.B. Nov. 17, 2014)

JD–68–14
Wilkes-Barre, PA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
WILKES-BARRE HOSPITAL COMPANY, LLC
d/b/a WILKES-BARRE GENERAL HOSPITAL
and Case 04-CA-123748
PENNSYLVANIA ASSOCIATION OF STAFF NURSES AND
ALLIED PROFESSIONALS, AFL-CIO
Henry R. Protas, Esq.,
for the General Counsel.
Carmen M. DiRienzo, Esq.,
for the Respondent.
Jonathan Walters, Esq. (Markowitz & Richman),
for the Charging Party.
DECISION
STATEMENT OF THE CASE
SUSAN A. FLYNN, Administrative Law Judge. This case was tried in Philadelphia,
Pennsylvania, on July 14–16, 2014. The Union filed the first charge (Case 04–CA–111130) on
August 13, 2013, and the General Counsel issued the complaint on November 22, 2013. The
second charge (Case 04–CA–121027) was filed on January 17, 2014, and was amended on
March 28, 2014. The third charge (Case 04–CA–123748) was filed on March 5, 2014. The
General Counsel issued a consolidated complaint on April 23, 2014. The Respondent filed
answers denying all material allegations.
On September 8, 2014, subsequent to the hearing, the Union requested that I remand
certain allegations of the consolidated complaint to the Regional Director for consideration of its
request to withdraw those allegations, which I did on September 10, 2014. On September 23,
2014, the Regional Director issued an Order Approving Full and Partial Withdrawal Request and
Dismissing Consolidated Complaint in Part. As a result, all allegations in Cases 04–CA–111130
and 04–CA–121027 were withdrawn as well as portions of Case 04–CA–123748. The portion of
Case 04–CA–123748 remaining before me alleges that the Respondent violated Section 8(a)(5)
and (1) of the National Labor Relations Act (the Act) when it failed to pay longevity-based wage
increases after the contract expired.
JD–68–14
2
After the trial, the parties filed briefs, which I have read and considered. Based on the
entire record in this case,1 including my observation of the demeanor of the witnesses, I make the
following
5
FINDINGS OF FACT
I. JURISDICTION
The Respondent, Wilkes-Barre Hospital Co., LLC, operates an acute care hospital in Wilkes-10
Barre, Pennsylvania. In 2013, the Respondent received gross revenues in excess of $250,000
and purchased and received goods in excess of $5000 directly from points outside the
Commonwealth of Pennsylvania. Accordingly, I find, and the Respondent admits, that it is an
employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and is
a health care institution within the meaning of Section 2(14) of the Act.15
The Respondent also admits, and I find, that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES20
BACKGROUND
Wilkes-Barre General Hospital is an acute care medical facility in Wilkes-Barre. Since
May 12, 2009, it has been owned by Community Health Systems. (R. Exh. 8.) The Hospital’s 25
registered nurses (RNs), both full-time and part-time graduate and registered nurses, are
unionized and are represented by the Pennsylvania Association of Staff Nurses and Allied
Professionals (PASNAP). The most recent collective-bargaining agreement was effective April
30, 2011, and expired April 30, 2013. (GC Exh. 2.) The parties began negotiations for a
successor agreement in February 2013. No agreement had been reached at the relevant time 30
period.
WAGE INCREASES
Under the terms of the collective-bargaining agreement, nurses were paid a minimum 35
base hourly rate commensurate with their years of experience. That experience was grouped as
follows: 0–2 years, 3–4 years, 5–9 years, 10–14 years, 15–19 years, 20–24 years, and 25+ years.
(GC Exh. 2.)
The collective-bargaining agreement provided for two different types of wage increases, 40
across-the-board annual raises and periodic longevity-based wage increases. There were three
annual across-the-board pay rate increases, the first upon contract ratification in May 2011,
another in January 2012, and the third in January 2013, the January raises being effective the first
full pay period following January 27, 2012, and 2013. In addition, as a nurse advanced from one

1 There are two obvious typographical errors that should be corrected. P. 14, L. 2, should read
“Protas” rather than “Gratius,” and p. 311, L.15, “step” rather than “staff.”
JD–68–14
3
experience level to the next, his/her hourly pay rate increased accordingly. Those raises were
paid January 27 of the year following the work anniversary. Article 25, sections 1, 2, and 3
pertain to the across-the-board raises, while sections 4 and 5 pertain to the longevity-based wage
increases. The specific contract provisions are set forth below.
5
Section 1—Effective upon the first full payroll period following the date of
ratification, regular full-time and regular part-time registered nurses who have
completed their probationary period shall be paid no less than the minimum base
hourly rates set forth on Appendix A, specifically May 2011. Consequently, those
who are paid less than the minimum base hourly rates set forth in Appendix A, 10
specifically May 2011 shall be raised to those rates. Those who are already receiving
higher base hourly rates than those specified in Appendix A shall retain those higher
rates, but shall receive an increase only in accordance with Section 2 below.
Section 2—Effective the first full pay period after January 27, 2012, minimum base 15
hourly rates shall be paid as set forth in Appendix A, specifically January 2012.
Those who are paid less than the minimum for their service level shall be raised to
the new minimum base hourly rate. Those whose base hourly rates already equal or
exceed the minimum rates in Appendix A; specifically January 2012 shall receive a
2.75% increase in their then-existing base hourly rate if the most recent annual 20
performance evaluation indicates the individual meets standards. Where an
employee’s increase to the wage scale is less than the percentage increase of his/her
then-existing base hourly rate specified above, he/she shall be entitled to the
percentage increase specified above if the most recent annual performance evaluation
indicates the individual meets standards.25
Section 3—Effective the first full pay period after January 27, 2013, minimum
base hourly rates shall be paid as set forth in Appendix A, specifically January 2013.
Those who are paid less than the minimum for their service level shall be raised to
the new minimum base hourly rate. Those whose base hourly rates already equal or 30
exceed the minimum rates in Appendix A; specifically January 2013 shall receive a
2.00% increase in their then-existing base hourly rate if the most recent annual
performance evaluation indicates the individual meets standards. Where an
employee’s increase to the wage scale is less than the percentage increase of his/her
then-existing base hourly rate specified above, he/she shall be entitled to the 35
percentage increase specified above if the most recent annual performance evaluation
indicates the individual meets standards.
Section 4 —Wage minimums shall be based upon the employee's length of
continuous service as a registered nurse in any registered nurse position(s)40
within Wyoming Valley Health Care System2 or its predecessors. Those who
have been granted credit for prior registered nurse experience at other
institutions shall retain such length of service for wage determination purposes
only. New hires may be given credit for prior registered nurse experience.

2 Wyoming Valley Health Care System was the predecessor owner of Wilkes-Barre General
Hospital. (Tr. 47, 48.)
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Section 5 —For the purpose of computing compensation under this Article,
the "base hourly rates" of salaried employees shall be their base bi-weekly
salary divided by (80) eighty hours. Unless the effective date of an
increase falls on the first day of the payroll period the increase shall5
actually become payable on the first day of the next payroll period. Scale
increases according to longevity shall become due only upon January 27th of
the year following the employee’s anniversary date.
(GC Exh. 2.)10
The chart at appendix A shows the hourly pay rates for the defined experience categories,
for acute care and health services nurses. The chart specifies the hourly pay rates for May 2011,
January 2012, and January 2013, for nurses at each of the seven different levels of seniority.
Reading across, the chart shows the three annual across-the-board raises; reading down, the chart 15
shows the longevity-based wage increases. Appendix A is reproduced below.
During the term of this Agreement, the initial wage scale and subsequent applicable
increases to same for bargaining unit RN’s shall be in accordance with the following:
20
Acute Care Health Services
May 2011 Jan 2012 Jan 2013 May 2011 Jan 2012 Jan 2013
0–2 $24.90 $25.58 $26.10 $19.54 $20.08 $20.48
3–4 $25.76 $26.47 $27.00 $20.10 $20.65 $21.07
5–9 $26.55 $27.28 $27.83 $21.04 $21.62 $22.05
10–14 $27.87 $28.64 $29.21 $22.14 $22.75 $23.20
15–19 $28.74 $29.53 $30.12 $22.68 $23.30 $23.77
20–24 $29.17 $29.97 $30.57 $23.20 $23.84 $24.31
25+ $30.11 $30.94 $31.56 $23.84 $24.50 $24.99
(GC Exh. 2.)
Thus, nurses who moved from one experience level to the next received an increase in
hourly pay the following January 27. All nurses received a pay increase the first full pay period 25
after January 27, 2012, and 2013. However, no one received a raise in January 2014. (Tr. 43,
140, 272.) There is no allegation regarding across-the-board raises in 2014. It is, however,
alleged that eligible nurses—those who advanced to the next higher experience level in 2013—
should have received pay raises in January 2014 as set forth in the chart at appendix A.
30
III. LEGAL STANDARDS AND ANALYSIS
A. Did the Region 4 Regional Director have the Authority to Issue the Complaint?
The Respondent moved to dismiss the complaint, contending that Regional Director 35
Walsh had no authority to issue the complaint in this matter. The Respondent asserts that,
because the January 2012 recess appointments of National Labor Relations Board Members were
determined to be invalid and the Board thus had no quorum until August 2013, any actions taken
JD–68–14
5
by the Board in the interim are invalid. See NLRB v. Noel Canning, 134 S.Ct. 2550 (2014). It
follows, according to the Respondent, that, as Walsh was appointed by the Board in January
2013, when it had no quorum, his appointment was invalid and his issuance of the complaint was
ultra vires.
5
However, the power to appoint Regional Directors during this period was delegated to the
General Counsel. The Board had issued an Order Contingently Delegating Authority to the
Chairman, the General Counsel, and the Chief Administrative Law Judge that was effective
November 22, 2011. Notice of this order was posted in the Federal Register. The order reads as
follows, in pertinent part. 10
The National Labor Relations Board anticipates that in the near future it may, for a
temporary period, have fewer than three Members of its full complement of five
Members. The Board also recognizes that it has a continuing responsibility to fulfill its
statutory obligations in the most effective and efficient manner possible. To assure that 15
the Agency will be able to meet its obligations to the public to the greatest extent
possible, the Board has decided to temporarily delegate certain authority to the Chairman,
the General Counsel, and to the Chief Administrative Law Judge as described below,
subject to the right of any sitting Board Member to request full-Board consideration of
any particular decision. These delegations shall be effective during any time at which the 20
Board has fewer than three Members and are made under the authority granted to the
Board under sections 3, 4, 6, and 10 of the National Labor Relations Act.
Accordingly, the Board delegates to the General Counsel authority over the appointment,
transfer, demotion, or discharge of any Regional Director or of any Officer-in-Charge of 25
a Subregional Office, and over the establishment, transfer or elimination of any Regional
or Subregional Office, subject to the right of any sitting Board Member to request full-
Board consideration of any particular decision. In the absence of a request by any sitting
Board Member for full-Board consideration of a particular decision(s), the decision(s) of
the General Counsel will become final 30 days after the then-sitting Board Members are 30
notified thereof.
. . . .
These delegations shall become and remain effective during any time at which the Board
has fewer than three Members, unless and until revoked by the Board. 35
(76 Fed. Reg. 73719 (November 29, 2011.)
Additionally, on July 18, 2014, the Board minutes reflect that “in an abundance of
caution, with a full complement of five Board members” the Board confirmed, adopted, and 40
ratified all administrative, personnel, and procurement matters approved by the Board or taken
by or on behalf of the Board between January 4, 2012, and August 5, 2013. “In a further
abundance of caution, and in an effort to bring an end to ongoing litigation regarding the actions
of the Board and its personnel between January 4, 2012 and August 5, 2013,” the Board
expressly authorized Walsh’s selection as Region 4 Regional Director.45
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The Respondent attached two notices to its motion, both pertaining to delegation of
authority by the Board. The first, dated October 9, 2002, granted the General Counsel “full and
final authority on behalf of the Agency over the selection, retention, transfer, promotion,
demotion, discipline, discharge, and in all other respects, of all personnel engaged in the field,
except that personnel action with respect to Regional Directors and Officers-in-Charge of 5
Subregional offices will be conducted as hereinafter provided. . . . The appointment, transfer,
demotion, or discharge of any Regional Director or of any Officer-in-Charge of a Subregional
office shall be made by the General Counsel only upon the approval of the Board.” That
memorandum was modified by an Amendment dated August 1, 2012. It reiterated that “The
appointment, transfer, demotion, or discharge of any Regional Director or of any Officer-in-10
Charge of a Subregional office shall be made by the General Counsel only upon the approval of
the Board.” Both of those notices address the routine conduct of business, not the extraordinary
situation addressed in the November 2011 notice, that was in effect when Walsh was selected.
Walsh was selected by the General Counsel and, in approving the selection without 15
dissent, no Board Member requested full-Board consideration of the decision. The General
Counsel exercised the authority delegated to him and there was no invalid action by the Board.
Therefore, the Motion to Dismiss is denied.
20
B. Did the Respondent Meet Its Obligation to Maintain the Status Quo when it Failed to Pay
Longevity-Based Wage Increases in January 2014, after the Collective-Bargaining
Agreement Expired?
I must first determine whether the Respondent had either a contractual or a statutory 25
obligation to pay longevity-based wage increases in January 2014, after the contract had expired.
Where the contractual right survives, the employer is required to honor its agreement; it
must maintain the contractual term unless and until the union consents to a change. Although a
contractual obligation may extend past the expiration of the contract, I find that is not the 30
situation here. See Litton Financial Printing Div. v. NLRB, 501 U.S. 190, 206 (1991). The
contract was effective for the period April 30, 2011, through April 30, 2013. Article 25, sections
1, 2, and 3 specifically state the dates of the across-the-board raises: May 2011, January 2012,
and January 2013. Article 25, sections 4 and 5, and appendix A pertain to longevity raises.
Appendix A begins “During the term of this Agreement, the initial wage scale and subsequent 35
applicable increases to same for bargaining unit RN’s shall be in accordance with the following.”
This addresses what should occur regarding longevity raises during the term of the contract but
does not address what should occur upon its expiration. Article 25, section 5, states “Scale
increases according to longevity shall become due only upon January 27th of the year following the
employee's anniversary date.” The provision likewise does not state that it is limited to 2012 and 40
2013. However, while these two provisions are silent as to what should occur upon expiration of the
contract, the contract contains no language that would extend the provisions of article 25 or appendix
A past the contract expiration date. Thus, I find that there was no contractual obligation to pay
longevity-based wage increases in January 2014, after the contract expired.
45
I now turn to the question whether there was a statutory obligation to pay longevity-based
wage increases in January 2014. It is well established that an employer violates Section 8(a)(5)
JD–68–14
7
and (1) of the Act if it changes the wages,3 hours, or terms and conditions of employment of
represented employees without providing the Union prior notice and an opportunity to bargain
over such changes. See NLRB v. Katz, 369 U.S. 736, 743, 747 (1962); Daily News of Los
Angeles, 315 NLRB 1236 (1994). This obligation extends to situations where a collective-
bargaining agreement has expired and negotiations on a new contract are ongoing. See, e.g., 5
Laborers Health & Welfare Trust Fund for North California v. Advanced Lightweight Concrete
Co., 484 U.S. 539, 544 fn. 6 (1988); Litton Financial Printing Div. v. NLRB, supra at 198; E. I.
DuPont & Co., 355 NLRB 1096 (2010); Register-Guard, 339 NLRB 353, 354 (2003). In such
situations, the employer is obligated to maintain the status quo as to mandatory subjects of
bargaining unless the parties have bargained to impasse. Katz, supra; Litton, supra at 198; 10
AlliedSignal Aerospace, 330 NLRB 1216, 1216–1222 (2000), review denied sub nom.
Honeywell International v. NLRB, 253 F.3d 125 (D.C. Cir. 2001); General Tire & Rubber Co.,
274 NLRB 591, 592–593 (1985), enfd. 795 F.2d 585 (6th Cir. 1986). It is undisputed that the
parties had not bargained to impasse in the negotiations over this provision in the new contract.
15
It is also undisputed that the Respondent did not give the Union prior notice of its
intention not to pay longevity-based wage increases in January 2014. The Respondent asserts
that it had no obligation to give such notice, since it was under no obligation to pay longevity-
based wage increases after the contract expired. The collective-bargaining agreement chart at
appendix A states that “During the term of this Agreement, the initial wage scale and subsequent 20
applicable increases to same for bargaining unit RN’s shall be in accordance with the following.
. . .” The Respondent contends that this language limits any raises to the term of the contract. I
disagree. The language states what was to happen during the contract term, and limits the annual
across-the-board raises to those specifically provided for in that article. It also limits the
Respondent’s contractual obligation regarding longevity-based wage increases. But the contract 25
says nothing about nurses receiving longevity-based wage increases after the contract expired.
Absent language specifically limiting the applicability of the provision for wage rate increases
based on experience level to the term of the contract, that provision continues in effect. Nor
does the contract contain language constituting a clear and unmistakable waiver of the Union’s
statutory rights.4 See General Tire & Rubber Co., 274 NLRB 591 (1985), enfd. 795 F.2d 585 (6th 30
Cir. 1986) (termination clause did not constitute clear and unmistakable waiver); Cauthorne
Trucking, 256 NLRB 721 (1981) (waiver found where pension agreement provided that, upon
expiration of a collective-bargaining agreement, the company’s obligation to make pension
payments would terminate). Therefore, while there is no continuing contractual obligation, there
is a continuing statutory obligation to maintain the status quo. 35
The Respondent does not dispute that it was required to maintain the status quo after
expiration of the contract in April 2013. The dispute in this case revolves around what status quo
means in this particular situation. The General Counsel asserts that in order to maintain the status
quo, the Respondent was obligated to continue paying longevity-based hourly wage rate 40

3 The nurses’ wages are at issue in this case. I would note that the Board has held that longevity pay is
a mandatory subject of bargaining. Pine Brook Care Center, 322 NLRB 740, 748 (1996); Southwest
Ambulance, 360 NLRB No. 109, slip op. at 8 (2014). It is unclear whether the longevity pay in Pine
Brook involved bonuses, as in Southwest Ambulance, or whether it involved increases to the employees’
hourly wage rates as in the instant case.
4 I note that the Respondent did not assert that the Union waived its statutory right to maintenance of
the status quo as to the contract provision at issue.
JD–68–14
8
increases as set forth in the contract, at the amounts set forth in the appendix A chart (those
dollar amounts being frozen). The Respondent contends that maintaining the status quo means
that each nurse’s pay would remain frozen at the level it was when the contract expired.
The Respondent asserts that the contract terms must be integrated, that appendix A 5
and sections 4 and 5 of article 25 cannot be read independently of the other sections in article
25. The Respondent further contends that the General Counsel argues for a “dynamic status
quo,” seeking to impose pay scale increases that had never been negotiated. I reject those
arguments. Sections 1, 2, and 3 of article 25 relate to annual across-the-board raises, that are
not at issue in this case. Sections 4 and 5 and the chart at appendix A set forth the nurses’ 10
rights as to longevity-based wage rate increases. There is no need to interpret the contract,
contort the contract, nor speculate as to the wage rate increase due a particular nurse, as the
Respondent claims. It is quite simple to apply the longevity-based scale at appendix A. And
if a nurse reached the maximum hourly wage rate on the chart when s/he advanced to the
next higher experience level, then s/he would receive no further raises until a new contract is 15
reached. The General Counsel does not suggest that the pay rates on the chart be changed or
increased, but only contends that some nurses should have moved up the scale and received
wage rate increases per the chart when they advanced to the next higher experience level,
that the Respondent should have applied the terms that already existed in the contract and
granted hourly wage rate increases as specified in appendix A. It is the Respondent’s position 20
that attempts to subvert the employees’ rights under contract, by insisting that across-the-
board raises go hand-in-hand with longevity-based wage rate increases, when they are
distinct rights. Bargaining unit employees had the right to wage rate increases when they
advanced to the next experience level, as set out in sections 4 and 5. Those increases based
on experience were due on January 27 of the year following the milestone work anniversary. 25
It was not impossible, nor even difficult or confusing, to apply the longevity scale increases
just because there were no concomitant across-the-board raises. The Respondent relies on
American Mirror, 269 NLRB 1091 (1984), but it has no bearing on the instant case. In
American Mirror, there had been no contract, there had been no set annual raises, and it was
found there was no contract status quo to maintain. In the instant case, the General Counsel30
does not seek to impose a requirement that the Respondent continue to pay annual across-
the-board raises. Nor is this case similar to Anaconda Ericcson Inc., 261 NLRB 831 (1982),
also cited by the Respondent. The instant case involves no discretionary increases but hourly
wage rate increases that had been negotiated and were in the contract.
I find that the collective-bargaining agreement established a practice that nurses would 35
receive hourly wage rate increases the year after they reached one of the milestone work
anniversaries, moving up the steps in the chart. The nurses thus had an expectation of receiving
a raise when they advanced in experience level. I find, therefore, that to freeze wages for all
nurses, as the Respondent did, was a change in the employees’ terms and conditions and in their
wages. To be clear, the pay rates in the chart remained stagnant, as set forth in appendix A. 40
Those dollar amounts did not increase in January 2014 via an across-the-board raise. But there is
no reason the nurses could not move up the pay scale when they reached the next higher
experience level, so they would all be at the same relative pay levels. The Respondent’s action
resulted in nurses who advanced to the next experience level in 2013 being paid less than
other nurses already at that same experience level. It would also result in those nurses being 45
paid at a lower rate than new hires with the same level of experience.
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The Respondent also argues that the parties had a past practice of the Respondent failing
to continue to pay longevity-based wage increases after expiration of a contract. I reject that
argument. The Respondent urges that I compare its conduct in January 2014 with its conduct
after the 2005–2009 collective-bargaining agreement expired when it likewise failed to pay 5
longevity wage increases, citing Courier-Journal, 342 NLRB 1093, 1094 (2004). However, that
case is inapposite. The situations are not remotely similar. In the instant case, there is no
longstanding practice of, or any history of, unilateral changes by the Respondent going
unchallenged by the Union. On the contrary, the Union did file a charge when the Respondent
failed to pay longevity-based raises following expiration of the prior contract. That charge was 10
dismissed by the Region; the Union did not acquiesce in the unilateral change. Moreover, the
provisions in the two contracts are different (R. Exh. 8; GC Exh. 2), so aside from the fact that
the Region’s administrative action in 2010 is of no precedential value, the situations are not
comparable, and the Region’s action in that case is irrelevant. Ball Corp., 322 NLRB 948, 951
(1997).15
In sum, I find that although the Respondent had no contractual obligation to pay
longevity-based wage rate increases in January 2014, it did have a statutory obligation to pay
longevity-based wage increases. The contract contained no language stating what should occur
regarding longevity-based raises when the contract expired; the Union did not waive its statutory 20
right to continue that contract provision in effect; maintaining the status quo required the
Respondent to grant longevity-based wage increases as of January 2014 for nurses who advanced
into the next higher experience level in 2013; the Respondent did not pay longevity-based wage
increases in January 2014 to nurses who had advanced to the next higher experience level in
2013; the Respondent did not give the Union notice of its decision not to give such raises in 25
January 2014 and did not give the Union the opportunity to negotiate over that decision; and the
parties had not bargained to impasse over that provision in the new contract.
My finding does not grant all nurses annual wage increases; it would indeed be purely
speculative to determine whether the parties would have agreed to further annual across-the-30
board annual pay increases or what amount they might be. While the parties were engaged in
contract negotiations at the relevant time period, and in fact had discussed proposals as to this
article, they had not reached an agreement. Rather, my finding grants an increase in base hourly
wage rates to those nurses who advanced from one defined experience level to the next since
2012, as set forth in the chart. A hypothetical acute care nurse who had four years experience in35
2012 would have been paid $27 per hour as of the first full pay period after January 27, 2013.
Although s/he subsequently moved into the 5–9 year experience level in 2013, s/he did not
receive a pay increase in January 2014. Yet, according to the chart at appendix A, in 2013 an
acute care nurse at the 5–9 year experience level was paid $27.83. I find that maintaining the
status quo in this case entails paying nurses increased hourly wage rates in the year following a40
milestone anniversary that moved them into the next higher experience level, in accordance with
appendix A.
Two examples of nurses who advanced into higher experience levels since 2012 but did
not receive wage rate increases in January 2014 were provided at the hearing. One acute care 45
nurse was in the 15–19 year category during the term of the collective-bargaining agreement. His
20th anniversary was May 1, 2013. Under the terms of the expired contract, he would then have
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moved into the 20–24 year category, and would have received an hourly wage rate increase the
first full pay period after January 27, 2014, from $30.12 to $30.57. (Tr. 144, 146–147; GC Exhs.
25, 26.) Another acute care nurse reached her 15-year anniversary on November 1, 2013. Under
the terms of the expired agreement, she would have moved to the 15–19 year experience level
and received an hourly wage rate increase the first full pay period after January 27, 2014, from 5
$29.21 to $30.12 per hour. (Tr. 145, 146; GC Exhs. 25, 27.) Neither has received those hourly
wage increases commensurate with their new experience levels.
I find that the contract provision at issue relates to the unit employees’ wages and that
those wages are based on their experience level (longevity). It is, therefore, a mandatory subject 10
of bargaining.
I find that the Respondent had established a term or condition of setting and increasing
nurses’ hourly wage rates based on their experience level.
15
I find that although there was no contractual basis to continue to apply that contract
provision, there was a statutory obligation to do so, as the Union did not waive its statutory right
to bargain regarding that provision and the parties had not bargained to impasse in negotiations
over that provision.
20
I find that the Respondent’s failure to pay hourly wage rate increases in January 2014, per
the chart in appendix A of the collective-bargaining agreement, to those nurses who had
advanced from one experience level to the next in 2013, constituted a failure to maintain the
status quo.
25
I find that the Respondent’s failure to give the Union prior notice and the opportunity to
bargain over that decision constituted a unilateral change.
Therefore, I conclude that the Respondent violated Section 8(a)(5) and (1) of the Act as
alleged.30
CONCLUSIONS OF LAW
1. Wilkes-Barre Hospital Co., LLC, d/b/a Wilkes-Barre General Hospital is an employer
engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.35
2. The Pennsylvania Association of Staff Nurses and Allied Professionals (PASNAP),
AFL–CIO is a labor organization within the meaning of Section 2(5) of the Act.
3. By ceasing to pay increases to unit employees’ base hourly wage rates based on 40
experience level, as of January 27, 2014, without providing the Union prior notice and an
opportunity to bargain, the Respondent has engaged in an unfair labor practice affecting
commerce within the meaning of Section 8(a)(5) and (1) of the Act.
4. The above unfair labor practice affects commerce within the meaning of Section 2(6) 45
and (7) of the Act.
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REMEDY
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 5
the policies of the Act.
I will order the Respondent to notify and, on request, bargain collectively and in good
faith with the Union before implementing any changes in wages, hours, or other terms or
conditions of employment. 10
I will order the Respondent to resume paying increases to unit employees’ base hourly
wage rates based on experience level as described in article 25, sections 4 and 5 and the chart at
appendix A of the April 30, 2011–April 30, 2013 collective-bargaining agreement.
15
I will further order the Respondent to make employees whole for any losses sustained as
a result of the unlawful unilateral change. Backpay shall be computed in accordance with Ogle
Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest at
the rate prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987), compounded
daily as prescribed in Kentucky River Medical Center, 356 NLRB No. 8 (2010). The Respondent 20
shall file a report with the Social Security Administration allocating backpay to the appropriate
calendar quarters. The Respondent shall also compensate the affected employees for any adverse
tax consequences of receiving lump-sum backpay awards in a calendar year other than the year
in which the income would have been earned had the Act not been violated. Don Chavas, LLC,
d/b/a Tortillas Don Chavas, 361 NLRB No. 10 (2014). 25
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended5
ORDER30
The Respondent, Wilkes-Barre Hospital Co., LLC, d/b/a Wilkes-Barre General Hospital,
Wilkes-Barre, Pennsylvania, its officers, agents, successors, and assigns, shall
1. Cease and desist from35
(a) Unilaterally discontinuing paying increases to the unit employees’ base hourly wage
rates based on experience levels as described in article 25, sections 4 and 5 and the chart at
appendix A of the April 30, 2011–April 30, 2013 collective-bargaining agreement.
40
(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.

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–68–14
12
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Before implementing any changes in wages, hours, or other terms or conditions of
employment, notify and, on request, bargain collectively and in good faith with the Pennsylvania
Association of Staff Nurses and Allied Professionals (PASNAP), AFL– CIO (the Union) as the
exclusive bargaining representative of its employees in the following unit:5
All full-time and regular part-time graduate and registered nurses employed by
Wilkes-Barre Hospital Company, LLC, 575 North River Street, Wilkes-Barre,
including certified registered nurse anesthetist, nurse epidemiologist, clinical
educator, continuing care nurse (discharge planner), tumor registry nurse, patient 10
advocate, RN tech scanner (cardiology), RN special procedures, instructor,
cardiology/ultrasound RN, lead instructor (Hospital Services division), cardiology
RN, neurophysiology RN, radiation oncology RN, respiratory RN, radiology
special procedures, cath. lab nurse, RN unit secretary, IV therapy nurse, staff RN,
coordinator QI, coordinator UM, clinical care coordinators, relief charge nurse, 15
employee health nurse, occupational health nurse/case manager, family
enhancement facilitator, family outreach facilitator, health awareness facilitator,
diabetes center nurse educator, physical therapy RN, cardiac rehabilitation nurse,
Mother-to-be program RN, pain management RN, ambulatory/outpatient
diagnostic RN, women’s health specialist, health enhancement associate, lead 20
instructor (health enhancement), coordinator clinical support (family outreach),
O.R. nurse, and service coordinator I, case managers, Wilkes-Barre Academic
Medicine, LLC registered nurses, and childbirth facilitator.
(b) Resume paying increases to the unit employees’ base hourly wage rate based on 25
experience levels as described in article 25, sections 4 and 5 and the chart at appendix A of the
April 30, 2011–April 30, 2013 collective-bargaining agreement until an agreement has been
reached with the Union or a lawful impasse in negotiations occurs.
(c) Make eligible employees whole for any losses sustained as a result of the unlawful 30
change made as of January 27, 2014, with interest, in the manner set forth in the remedy section
of this decision.
(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 35
or its agents, all payroll records, social security payment records, timecards, personnel records
and reports, and all other records, including an electronic copy of such records if stored in
electronic form, necessary to analyze the amount of back pay due under the terms of this Order.
(e) Within 14 days after service by the Region, post at its facility in Wilkes-Barre, 40
Pennsylvania, copies of the attached notice marked “Appendix.”6 Copies of the notice, on forms

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.”
JD–68–14
13
provided by the Regional Director for Region 4, 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 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 5
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 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 10
all current employees and former employees employed by the Respondent at any time since
January 27, 2014.
(f) Within 21 days after service by the Region, file with the Regional Director for Region
4 a sworn certification of a responsible official on a form provided by the Region attesting to the 15
steps that the Respondent has taken to comply.
Dated: Washington, D.C. November 17, 2014
20
____________________
Susan A. Flynn
Administrative Law Judge 25
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 discontinue to pay increases to the unit employees’ base hourly
wage rate based on experience level as described by article 25, sections 4 and 5 and the chart at
appendix A of the April 30, 2011–April 30, 2013 collective-bargaining agreement.
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, before implementing any changes in your wages, hours, or other terms or conditions
of employment, notify and, on request, bargain collectively with the Pennsylvania Association of
Staff Nurses and Allied Professionals (PASNAP), AFL– CIO (the Union) as the exclusive
bargaining representative of the employees in the following appropriate unit:
All full-time and regular part-time graduate and registered nurses employed by Wilkes-
Barre Hospital Company, LLC, 575 North River Street, Wilkes-Barre, including certified
registered nurse anesthetist, nurse epidemiologist, clinical educator, continuing care nurse
(discharge planner), tumor registry nurse, patient advocate, RN tech scanner (cardiology),
RN special procedures, instructor, cardiology/ultrasound RN, lead instructor (Hospital
Services division), cardiology RN, neurophysiology RN, radiation oncology RN,
respiratory RN, radiology special procedures, cath. lab nurse, RN unit secretary, IV
therapy nurse, staff RN, coordinator QI, coordinator UM, clinical care coordinators, relief
charge nurse, employee health nurse, occupational health nurse/case manager, family
enhancement facilitator, family outreach facilitator, health awareness facilitator, diabetes
center nurse educator, physical therapy RN, cardiac rehabilitation nurse, Mother-to-be
program RN, pain management RN, ambulatory/outpatient diagnostic RN, women’s
health specialist, health enhancement associate, lead instructor (health enhancement),
coordinator clinical support (family outreach), O.R. nurse, and service coordinator I, case
managers, Wilkes-Barre Academic Medicine, LLC registered nurses, and childbirth
facilitator.
WE WILL resume paying increases to the base hourly wage rates based on experience level to
eligible employees as described in article 25, sections 4 and 5 and the chart at appendix A of the
April 30, 2011–April 30, 2013 collective-bargaining agreement until an agreement has been
reached with the Union or a lawful impasse in negotiations occurs.
WE WILL make eligible employees whole, with interest, for any losses sustained as a result of
the unlawful cessation of giving pay raises based on experience level as of January 27, 2014.
WE WILL file a report with the Social Security Administration allocating backpay to the
appropriate calendar quarters.
WE WILL compensate employees for the adverse tax consequences, if any, of receiving one or
more lump-sum backpay awards in a calendar year other than the year in which the income
would have been earned had the Act not been violated.
WILKES-BARRE HOSPITAL CO., LLC,
d/b/a WILKES-BARRE GENERAL HOSPITAL
(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.
615 Chestnut Street, Suite 710, Philadelphia, PA 19106-4404
(215) 597-7601, Hours: 8:30 a.m. to 5 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/04-CA-123748 or
by using the QR code below. Alternatively, you can obtain a copy of the decision from the
Executive Secretary, National Labor Relations Board, 1099 14th Street, N.W., Washington, D.C.
20570, or by calling (202) 273-1940.
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, (215) 597-5354.