NOTICE: This opinion is subject to formal revision
before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive
Secretary, National Labor Relations Board,
Provena Hospitals, d/b/a
August 16, 2007
DECISION AND ORDER
By Chairman Battista
and Members Liebman
and Walsh
On December 21, 2001, Administrative Law Judge Bruce D. Rosenstein issued the attached decision. The Respondent filed exceptions and a supporting brief, counsel for the General Counsel filed an answering brief, and the Respondent filed a brief in reply.
The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.
The National Labor Relations 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 conclusions only to the extent consistent with this Decision and Order.
The judge found that the Respondent violated Section
8(a)(5) and (1) of the Act by unilaterally and without notice to the
For the reasons set forth more fully below, we agree with the judge’s application of the clear and unmistakable waiver standard as well as his determination that the Respondent violated its bargaining obligations before implementing the staff incentive policy. We disagree, however, with his determination that the Respondent’s implementation of changes in its attendance and tardiness policy violated the Act. In reaching these conclusions, we will explain why we adhere to the Board’s traditional waiver standard.
i. background
The
The following management-rights language has been included in every collective-bargaining agreement since the parties’ first contract in 1993:
Except as specifically limited by the express provisions of this Agreement, the Medical Center retains exclusively to itself the traditional rights (as historically existed prior to union organization) to operate and manage its business and to direct its employees, including, but not limited to the following: to direct, plan and control facility operations; to exercise control and discretion over the organization and efficiency of operations; to change or eliminate existing methods, materials, equipment, facilities and reporting practices and procedures and/or to introduce new or improved ones; to utilize suppliers, subcontractors and independent contractors as it determines appropriate; to determine what products shall be used; to establish and change the hours of work (including overtime work) and work schedules; to select, hire, direct and supervise employees and assign them work; to classify, train, promote, demote and transfer employees; to suspend, discipline and discharge employees; to increase, reduce, change, modify, or alter the composition and size of the workforce; to establish, modify, combine or abolish job classifications; to make and enforce rules of conduct, standards and regulations governing conduct of employees; to lay off and to relieve employees from duty because of lack of work or other reasons; to determine the number of departments and units and the work to be performed therein; to determine standards of patient care; to determine the schedules and nature of work to be performed by employees and the methods procedures and equipment to be utilized by employees in the performance of such work; to utilize employees wherever necessary in cases of emergency or in the interest of patient care, to introduce new or improved methods or facilities regardless of whether or not such introduction may cause a reduction in the working force; to establish and administer policies and procedures related to research, education, training, operations, services and maintenance of the Medical Center’s operations; to determine staffing patterns including but not limited to the assignment of employees, numbers employed, duties to be performed, qualifications and areas worked; to change or abolish any job title, department or unit; to select and determine the type and extent of activities in which it will engage and with whom it will do business; to determine and change starting times, quitting times, shifts, and the number of hours to be worked by employees; to determine policies and procedures with respect to patient care; to determine or change the methods and means by which its operations are to be carried on; to take any and all actions it determines appropriate, including the subcontracting of work, to maintain efficiency and appropriate patient care.
On December 8, 2000, because of short-term staffing concerns over the holidays resulting from job vacancies, the Respondent implemented a staff incentive policy applicable to bargaining unit employees. The policy provided that nurses who signed up for and worked extra shifts between December 8, 2000, and January 1, 2001,[2] would qualify for premium payments of up to an additional $500 beyond applicable overtime pay.[3] This was the third staff incentive policy adopted by the Respondent in a little over a year.[4]
The contract permitted what it termed “extraordinary pay” for extra hours worked when the Respondent determined that additional work hours or nurses were needed.[5] The collective-bargaining agreement did not, however, contain any provisions relating to incentive pay.
The
Admitting that it did not afford the
Thereafter, in a telephone conversation on January 18, the
Respondent’s vice president of human resources, Diane Samuels, told union
spokesperson Kay Jones that on February 1, the Respondent would be implementing
a revised attendance and tardiness policy,[10] replacing
one that had been in substantial effect since January 1997.[11] These policy documents addressed disciplinary
processes related to attendance and tardiness.
The collective-bargaining agreement contained no express provisions
outside the management-rights clause regarding disciplinary processes, although
it did set forth substantive obligations of employees regarding such matters as
the requirements for call-in time and excused time. By letter of January 31, Jones told the
Respondent that the
The Respondent admits in its answer to the complaint that
the attendance and tardiness policy covered a mandatory subject of bargaining
under the Act and was implemented unilaterally, but argues that the Union’s failure
to request bargaining promptly upon receiving 2 weeks’ advance notice of the
Respondent’s plan constituted a waiver and privileged its action. But both Respondent’s vice presidents Solem
and Samuels testified that they would not have bargained with the
ii. judge’s decision
Applying the Board’s long-established standard, the judge concluded
that the
The judge cited the Supreme Court’s decision in Metropolitan Edison Co. v. NLRB,[12] for
the proposition that a waiver of a statutory right will not be inferred from
general contractual provisions, but rather must be clear and unmistakable. He then relied on subsequent Board decisions
that have consistently held, in accordance with Metropolitan Edison, that a waiver of the right to bargain must be
clear and unmistakable. The judge found
that the broad terms of the contract’s management-rights clause did not provide
sufficient specificity to authorize the Respondent’s unilateral action with
regard to the staff incentive policy.
Further, he found no evidence that the issue of staff incentives had
been mentioned at all during contract negotiations, much less “fully discussed
and consciously explored.”[13] Accordingly, he concluded that the
The judge reached the same conclusion with respect to the
attendance and tardiness policy changes.
He implicitly rejected the Respondent’s contention that particular management-rights
language established that the
iii. analysis
This case presents us with the opportunity to explain and
reaffirm our adherence to one of the oldest and most familiar of Board
doctrines, the clear-and-unmistakable waiver standard, in determining whether
an employer has the right to make unilateral changes in unit employees’ terms
and conditions of employment during the life of a collective-bargaining
agreement. The clear-and-unmistakable waiver standard is firmly grounded in the
policy of the National Labor Relations Act promoting collective bargaining. It has been applied consistently by the Board
for more than 50 years, and it has been approved by the Supreme Court. NLRB v.
C & C Plywood, 385
Applying the clear-and-unmistakable waiver standard in
this case, we find that the Respondent violated Section 8(a)(5) by unilaterally
implementing its incentive policy. With
respect to the Respondent’s newly implemented disciplinary policy on attendance
and tardiness, however, we disagree with the judge and find instead that the evidence
establishes that the
A.
The waiver
standard is based on the long-established proposition that the duty to bargain
created by Section 8(a)(5) of the Act continues during the term of a collective-bargaining
agreement. See Jacobs Mfg. Co., 94 NLRB 1214, 1217–1218 (1951), enfd. 196 F.2d 680
(2d Cir. 1952). See also Proctor Mfg. Corp., 131 NLRB 1166, 1170
(1961) (reading management-rights clause broadly would “disregard ‘the familiar
concept of collective bargaining as a continuing and developing process’”)
(internal citation omitted).
Accordingly, a
union has the statutory right to require an employer to bargain before making a
unilateral change with respect to a term or condition of employment.[16] Conversely, the employer’s authority to act
unilaterally is predicated on the union’s waiver
of its right to insist on bargaining.[17] A leading treatise summarizes the Board’s
well-established principles this way:
[U]nless discharged or waived, the duty to bargain continues during the term of the collective bargaining agreement.
*
* *
A party may contractually waive its right to bargain about a subject. Where such a waiver is claimed, the test is whether the putative waiver is in “clear and unmistakable” language.
* * *
When a “management-rights” clause is the source of an asserted waiver, it is normally scrutinized by the Board to ascertain whether it affords specific justification for unilateral action.
1 American Bar Association, Section of Labor & Employment Law, The Developing Labor Law 1006–1007, 1014 (5th ed. 2006 John E. Higgins, Jr. ed.) (fns. collecting cases omitted).[18]
The clear-and-unmistakable waiver standard, then, requires bargaining partners to unequivocally and specifically express their mutual intention to permit unilateral employer action with respect to a particular employment term, notwithstanding the statutory duty to bargain that would otherwise apply. The standard reflects the Board’s policy choice, grounded in the Act, in favor of collective bargaining concerning changes in working conditions that might precipitate labor disputes.
The earliest published application of the clear-and- unmistakable
waiver standard dates back more than 50 years, to Tide Water Associated Oil Co., 85 NLRB 1096 (1949). There, the respondent employer argued that
the union had ceded its right to bargain over the terms of a pension plan by
agreeing to a broadly worded “Management Functions” clause. The Board rejected the argument that such a
contract provision effected a waiver, noting that it was “reluctant to deprive
employees of any of the rights guaranteed them by the Act in the absence of a
clear and unmistakable showing of a waiver of such rights.”
Since then, in
decisions too numerous to cite,[19]
the Board has applied the clear and unmistakable waiver analysis to all cases
arising under Section 8(a)(5) where an employer has asserted that a general
management-rights provision authorizes it to act unilaterally with respect to a
particular term and condition of employment.
The Board has
never departed from that standard. And
it has specifically declined to adopt the approach that the dissent commends.[20] As a result, the Board’s waiver analysis has
become deeply engrained in the administration of the Act and in the conduct of
collective bargaining.
The Board’s longstanding adherence to the waiver standard reflects the Supreme Court’s approval of the Board’s approach. In C & C Plywood, supra, the Court reviewed the Board’s finding that an employer violated Section 8(a)(5) by unilaterally implementing a premium-pay schedule for a classification of employees. The employer argued that the union representing its employees had waived its statutory right to bargain over the matter, but the Board rejected that argument and found no waiver under its clear-and-unmistakable standard. C & C Plywood Corp., 148 NLRB 414, 416-417 (1964), enf. denied 351 F.2d 224 (9th Cir. 1965). The Court upheld the Board’s finding of a violation and explicitly approved the waiver analysis, stating:
[T]he Board relied upon its experience with labor relations and the Act’s clear emphasis upon the protection of free collective bargaining. We cannot disapprove of the Board’s approach.
385
The Court later expressly reaffirmed its approval of the Board’s waiver standard in Metropolitan Edison Co. v. NLRB, supra. There, in considering whether a contractual no-strike clause imposed a duty on union officials to take affirmative steps to end an unlawful strike, the Court observed:
[W]e will not infer from a general contractual provision that the parties intended to waive a statutorily protected right unless the undertaking is “explicitly stated.”
More succinctly, the waiver must be clear and unmistakable. No later decision of the Court casts doubt on the continuing approval that the Board’s traditional analysis enjoys. In the wake of those endorsements, appellate courts—with exceptions that will be addressed—have approved the Board’s application of the waiver analysis to Section 8(a)(5) cases where an employer asserts that a contract provision authorized its unilateral change in working conditions.[21]
B.
There can be no dispute, then, that the Board’s traditional
waiver standard is exceptionally well established. The venerable age of the standard, coupled
with its approval by the Supreme Court, makes a powerful case for stare decisis. But the dissent would have the Board break
with its own precedent and turn to the “contract-coverage” standard devised by
the United States Court of Appeals for the District of Columbia Circuit[22]
and followed by the Seventh Circuit,[23] despite the fact that earlier decisions of
those same courts, never reversed, applied the waiver standard.[24] Indeed, in a decision pre-dating its enunciation
of the “contract-coverage” standard, the District of Columbia Circuit
criticized the Board for failing to
follow its waiver standard. Road Sprinkler Fitters Local Union No. 669
v. NLRB, 600 F.2d 918, 922–923 (D.C. Cir. 1979).[25] The court observed that it would “not allow
an administrative agency to abandon its past principles without reasoned
analysis.”
1.
The dissent describes the “contract-coverage” approach as follows:
Under this test where there is a contract clause that is relevant to the dispute, it can reasonably be said that the parties have bargained about the subject and have reached some accord. Thus, there has been no refusal to bargain. (Emphasis in original.)
With passing acknowledgment to the long history of the Board’s waiver standard and its endorsement by the Supreme Court, the dissent offers two reasons for departing from the waiver standard:
(1) “to eliminate the conflict between [the Board] and at least two two circuit courts;” and
(2) “to harmonize [the Board’s] views with the grievance-arbitration process.”
Neither reason withstands scrutiny.
2.
As the Board explained in C & C Plywood, supra, granting an employer the right to act
unilaterally with respect to employment terms that are subject to bargaining
under the Act “is so contrary to labor relations experience that it should not
be inferred unless the language of the contract or the history of negotiations
clearly demonstrates this to be a fact.”
148 NLRB at 417. In upholding the
Board’s decision, in turn, the Supreme Court observed that the Board properly
“relied upon its experience with labor relations and the Act’s clear emphasis
upon the protection of free collective bargaining.” 385
The irony of the dissent’s position is that it threatens
to upset the settled expectations of parties to existing collective-bargaining
agreements. Such a contract “must be
read . . . in the light of the law relating to it when made.” Mastro
Plastics Corp. v. NLRB, 350
Changing to a “contract-coverage” standard would very likely complicate the collective-bargaining process and increase the likelihood of labor disputes. The waiver standard, on the other hand, effectively requires the parties to focus on particular subjects over which the employer seeks the right to act unilaterally. Such a narrow focus has two clear benefits. First, it encourages the parties to bargain only over subjects of importance at the time and to leave other subjects to future bargaining. Second, if a waiver is won—in clear and unmistakable language—the employer’s right to take future unilateral action should be apparent to all concerned. A “contract-coverage” standard, in contrast, creates an incentive for employers to seek contractual language that might be construed as authorizing unilateral action on subjects of no present concern, requires unions to be wary of agreeing to such provisions, and invites future disputes about the scope of the contractual provision.[28] Cf. Beacon Piece Dyeing & Finishing Co., 121 NLRB 953, 960 (1958) (rejecting concept of implied waiver of bargaining rights, based on union’s unsuccessful attempt to achieve contractual coverage of subject).
3.
The flaws in the dissent’s primary argument in favor of abandoning the waiver standard—the desire to avoid a conflict between the Board and the courts—are clear.
First, as already demonstrated, the waiver standard has been upheld by the Supreme Court itself. The two appellate courts that have rejected the waiver standard in favor of the “contract-coverage” approach are a distinct minority.
Second, the Board has a long-established policy of refusing to acquiesce in the adverse decisions of the appellate courts. See, e.g., Tim Foley Plumbing Service, 337 NLRB 328, 329 fn. 5 (2001) (citing Insurance Agents (Prudential Insurance Co.), 119 NLRB 768, 773 (1957), set aside 260 F.2d 736 (D.C. Cir. 1958), aff’d 361 U.S. 477 (1960)).[29] The Board’s adoption of, and adherence to, the waiver standard is surely within its administrative discretion, as leading scholars have pointed out[30] and as other appellate courts have observed.[31] The dissent does not contend otherwise.
For their part, in adopting the “contract-coverage”
standard, the District of Columbia Circuit and the Seventh Circuit have held that
the Board is not entitled to
deference with respect to the waiver standard.
See, e.g., United States Postal
Service, supra, 8 F.3d at 837; Chicago
Tribune, supra, 974 F.2d at 937. In
the view of those courts, the issue is strictly one of contract interpretation,
and the Supreme Court has held that the federal courts—which have jurisdiction
over labor-contract disputes under Section 301 of the Labor-Management Relations
Act, 29 U.S.C. §185—owe the Board no deference in contract interpretation.
Insofar as they are based on considerations of statutory
policy, the principles the Board brings to bear in interpreting a
collective-bargaining agreement are distinct from a determination of whether
the contract (as opposed to the Act) has been breached. The Supreme Court made this distinction clear
in C & C Plywood, supra. There, the Court rejected the argument that
“since the contract contained a provision which might have allowed” the employer to act unilaterally, the Board was
“powerless to determine whether that provision did authorize the [employer’s] action, because the question was one
for a state or federal court under §301 of the Act.” 385
4.
The dissent’s further concern over the “danger of different results” depending on the choice of forum as between the Board and arbitration is puzzling. Given the established policy of deferring to arbitration, the Board will decide a case involving contract interpretation—including the application of a management-rights clause—only where there is no basis for deferral. Moreover, the Board has deferred to an arbitrator’s decision even where the arbitrator did not apply the Board’s waiver standard. See, e.g., Smurfit-Stone Container Corp., 344 NLRB No. 82, slip op. at 3 fn. 4 (2005). See also Gorman & Finkin, supra, Basic Text on Labor Law, §31.5 at 1039–1042. Given this approach, the dissent’s concern is misplaced.[33]
iv. application
In sum, there is no good reason to depart from the Board’s traditional waiver standard. Therefore, we apply that standard to the allegations in this case. For the reasons that follow, we find that the Respondent violated its bargaining obligation with respect to its unilateral implementation of the staff incentive policy, but did not do so with respect to the attendance and tardiness policy.
A.
We find that the Respondent violated Section 8(a)(5) by
unilaterally implementing the incentive policy.
There is no express substantive provision in the contract regarding
incentive pay.[34] Moreover, there is no evidence that incentive
pay was consciously explored in bargaining or that the
B.
We find that the Respondent did not violate the Act with
respect to the newly-implemented disciplinary policy on attendance and tardiness. Application of our traditional standard
reveals that several provisions of the management- rights clause, taken
together, explicitly authorized the Respondent’s unilateral action. Specifically, the clause provides that the
Respondent has the right to “change reporting practices and procedures and/or
to introduce new or improved ones,” “to make and enforce rules of conduct,” and
“to suspend, discipline, and discharge employees.” By agreeing to that combination of provisions,
the
ORDER
The National Labor Relations Board adopts the recommended
Order of the administrative law judge as modified and set forth in full below,
and orders that the Respondent,
1. Cease and desist from
(a) Failing and refusing to bargain with the Illinois Nurses Association, as the exclusive collective-bargaining representative of employees in the unit described below, by unilaterally implementing a staff incentive policy without giving the Union notice and an opportunity to bargain.
(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.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) If requested by the
(b) Before implementing any changes in wages, hours, or
other terms and conditions of employment of unit employees, notify and, on request,
bargain collectively and in good faith with the
All full-time and regular part-time registered nurses who hold the position description titles of staff registered nurse, and CWYN nurses who worked more than 130 hours in the preceding six (6) months (to be determined following the first payroll in January and July), employed by the Respondent at its facility currently located at 333 North Madison Street, Joliet, Illinois, but excluding all other persons including but not limited to physicians, all other professionals, technical employees, maintenance employees, business office employees, clerical employees, other staff employees, members of religious orders, supervisors, managers and guards as defined in the Act.
(c) Within 14 days after service by the Region, post at
its facility in
(d) 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.
It is further ordered that that complaint is dismissed insofar as it alleges violations not specifically found.
Dated,
Wilma
B. Liebman, Member
Dennis
P. Walsh, Member
(seal) National
Labor Relations Board
Chairman Battista dissenting.
This case offers the Board an opportunity (1) to eliminate the conflict between it and at least two circuit courts on an important issue1 and (2) to harmonize its views with the grievance-arbitration process—a vital part of our nation’s labor relations policy.2 I would embrace that opportunity in this case.
These cases involve an allegation that an employer acted unilaterally with respect to certain terms and conditions of employment. That unilateral conduct is alleged to be a refusal to bargain under Section 8(a)(5). The employer defends on the basis that the collective bargaining agreement contains provisions which privilege the conduct.
The Board has used a “waiver” test to determine the legality of the employer’s actions in this context. Under this test, the employer’s conduct is unlawful unless the contract clause “clearly and unmistakably” waives the union’s right to bargain. Unless the clause explicitly covers the action and clearly takes away the union’s right to bargain, a violation is found.
This doctrine is in conflict with the views of two circuit courts. These courts apply a “contract coverage” test. Under this test where there is a contract clause that is relevant to the dispute, it can reasonably be said that the parties have bargained about the subject and have reached some accord. Thus, there has been no refusal to bargain.3 In sum, the issue is not whether the union has waived its right to bargain. The issue is whether the union and the employer have bargained concerning the relevant subject matter. If so, the Board and the courts should honor the fruit of that bargaining.4
The waiver doctrine also poses conflicts between the Board and the grievance-arbitration process. The Board, viewing a case through the “waiver” prism, would find a 8(a)(5) violation. An arbitrator, viewing the same case through normal principles of contract interpretation, would find that the clause privileges the conduct, albeit not “clearly and unmistakably” so. Phrased differently, the Board would start with the proposition that the unilateral change is unlawful, unless the right to bargain has been “clearly and unmistakably” waived. An arbitrator would ask whether the union has met its burden of establishing a breach of contract. Thus, there is a danger of different results depending on the choice of forum. The union is encouraged to come to the Board, rather than to the agreed-upon grievance-arbitration process.
As stated, I would agree with the courts, and I would encourage support of the grievance-arbitration process. As to the former, courts are correct that there can be no refusal to bargain if the parties have bargained about the subject matter. As to the latter, the grievance-arbitration process is supported by an approach that harmonizes the Board and arbitral processes.
My colleagues suggest that there is no danger of discord between the Board and arbitration because the Board will defer to the decision of arbitrators. However, the Board will not defer if, in the Boards view, the arbitral decision is “repugnant” (“palpably wrong”) under the Act. The issue of “repugnance” is often hotly litigated, and the results are hard to predict.5 The General Counsel contends in these cases that the decision is repugnant, and there follows extensive litigation on this issue and the underlying issue of the merits. This litigation is in addition to the arbitral litigation which has already occurred. In my view, it would be far better to have the same standard for arbitrators and the Board, and thus the General Counsel, applying that standard, would not begin a second litigation.
Metropolitan Edison6 does not require a different result. That case involved discrimination against union officials, in violation of Section 8(a)(3). The issue was whether the union had essentially agreed that the employer could treat union officials in a disparate way. The Board and the Court would not lightly infer that the union had consented to discrimination against its own officers. By contrast, the instant case does not involve discrimination. As noted above, the issue is whether the union and the Respondent have bargained on the subject matters. I conclude that they have done so.
Nor does C & C Plywood7 preclude my approach. The employer there argued that the Board was without jurisdictional power to interpret the contract. The Court rejected that contention. I do not argue here that the Board lacks jurisdictional power to analyze the contract. Indeed, I have analyzed the contract (see infra) to determine whether the contract covers the subject matters involved.
The Court also analyzed a second employer contention, i.e., that the contract did not give the employer the right to take the action that it took. The Court ruled that the Board permissively held that the union had retained its statutory right to bargain about the subject matters. Interestingly, the Court did not use the term “waiver” and did not use a “clear and unmistakable test.”8
Further, the circuit courts that use the “contract coverage” approach did so after C & C Plywood. Contrary to the suggestion of my colleagues, I am not simply “acquiescing” to these court opinions that have eschewed the Board’s “waiver” analysis. Rather, I adopt the contract-coverage analysis applied by these court opinions because they are the better approach. Although the Board is not required to adopt the analysis of a federal court of appeals, neither is it prohibited from doing so when it finds the court’s analysis is more prudent than its own. The fact that the contract-coverage approach reconciles a conflict between the Board and the courts and prevents parties from forum-shopping for those courts are positive consequences of my position but are not the reason for it.
My colleagues say that “it is the function of the Board, not the courts, to develop federal labor policy.” I agree. However, the Board, in developing that policy, should pay careful attention to what the courts are saying.
I recognize, as my colleagues have noted, that the contract-coverage approach breaks with current Board precedent. The Board has long exercised its right to depart from precedent when it finds that precedent imprudent. In the instant matter, there are conflicts with circuit courts and there are conflicts with the arbitral process. I believe that these conflicts warrant a fresh approach.
I do not agree with my colleagues that a change in law would upset the expectations of the parties in bargaining. This case, and others like it, involves bargaining that occurred after the court decisions of 1992 and 1993. The parties knew, or reasonably should have known, that the waiver standard was not unchallenged law.
Similarly, I do not agree that my approach complicates the collective-bargaining process. Under my approach, the parties are encouraged to bargain about matters that are relevant at the time of bargaining. If they do so, and reach an accord, I would honor the accord even if the accord is that the employer can act in a certain way. I cannot see how this complicates the bargaining process.
Application of Standard
I now apply these principles to the instant case.
1. Time and attendance policy.
The Employer unilaterally implemented a new policy that was more strict in its enforcement of time and attendance rules. The contract gives the Employer the right “to make and enforce rules of conduct of employees” the right to “change reporting practices and procedures and or to introduce new or improved ones”—and the right “to discipline employees for breach of those rules.” The contract thus contains provisions that are relevant to the dispute. The issue of whether the contract proscribes the specific action is grist for an arbitrator’s mill.
2. Staff incentive policy
Because of concerns about short-term staffing over the holidays, the Respondent implemented a staff incentive policy applicable to bargaining unit employees. The policy provided that nurses who signed up for and worked extra shifts between December 8, 2000, and January 1, 2001, would qualify for premium payments of up to an additional $500 beyond applicable overtime pay. This was the third staff incentive policy adopted by the Respondent in little over a year. The first one covered the period from November 23 to 27, 2000, and the second covered the period from December 1 to 4, 2000. A similar incentive was previously offered in December 1998, running from December 14, 1998, through January 9, 1999.
The contract contains provisions which are relevant to the dispute. It permits “extraordinary pay” for extra hours worked when the Respondent determined that additional work hours were needed.
The contract also provides that the employer can “establish and change the hours of work (including overtime work) and work schedules” and can “take any and all actions it determines appropriate, including the subcontracting of work, to maintain efficiency and appropriate patient care.”
In view of the above, it is apparent that the contract contains clauses which are relevant to the dispute about overtime work and the compensation to be paid therefore. Again, this dispute is grist for the arbitral mill. An arbitrator could reasonably conclude that the Respondent did not breach the contract when it implemented its system. Conversely, an arbitrator could conclude that “extraordinary pay” does not include “incentive pay” and that the latter exceeded the provision of the contract.
Conclusion
I would apply the “contract coverage” analysis, and I would find no refusal to bargain about the subject matters involved herein. The issue of whether the parties reached an agreement on those subjects, and what those agreements were, would be left to the arbitral process.
Dated,
Robert J. Battista, Chairman
National Labor Relations Board
APPENDIX
Notice to employees
Posted by order of the
national labor relations board
An Agency of the
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 any 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 fail and refuse to bargain with the Illinois Nurses Association as the exclusive collective-bargaining representative of employees in the unit described below by unilaterally implementing a staff incentive policy without giving the Union notice and an opportunity to bargain.
We will not in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights set forth above.
We will, if
requested by the
We will,
before implementing any changes in wages, hours, or other terms and conditions
of employment of unit employees, notify and, on request, bargain collectively
and in good faith with the
All full-time and regular part-time registered nurses who hold the position description titles of staff registered nurse, and CWYN nurses who worked more than 130 hours in the preceding six (6) months (to be determined following the first payroll in January and July), employed by us at our facility currently located at 333 North Madison Street, Joliet, Illinois, but excluding all other persons including but not limited to physicians, all other professionals, technical employees, maintenance employees, business office employees, clerical employees, other staff employees, members of religious orders, supervisors, managers and guards as defined in the Act.
Provena St.
Joseph Medical Center
Jessica Willis Muth, Esq., for the General Counsel.
Kerry E. Saltzman, Esq. and Jeffrey Ward, Esq., of
DECISION
Statement of the Case
Bruce D. Rosenstein,
Administrative Law Judge. This case was tried before me on October 16, 2001,1 in
Issues
The complaint
alleges that without prior notice to the Union and without affording the
On the entire
record, including my observation of the demeanor of the witnesses, and after
considering the briefs filed by the General Counsel and the Respondent, I make
the following
Findings of Fact
i. jurisdiction
The Respondent
is a corporation engaged in the operation of a medical center providing
inpatient and outpatient medical care, with an office and place of business
located in
ii. alleged unfair
labor practices
A.
Background
The
In 1992, the
parties commenced negotiations on their initial collective-bargaining
agreement. As part of its June 29, 1992
proposal to the
At all
material times Terry Solem held the position of vice president of human resources
for the Employer’s health-wide system, Diane Samuels serves as vice president
of human resources at the Medical Center and Linda Hulbert holds the position
of vice president for patient services.
Kay Jones, an employee of the
During the
negotiation session of November 20, 1992, the Respondent proposed an expansive-waiver
clause that was rejected by the
During
negotiations leading to the parties’ second collective-bargaining agreement in
January 1996, the
Both Solem and
Samuels testified that the Respondent would give notice to the
The testimony
of the parties confirms that over the approximately 8 years of their collective-bargaining
relationship, when changes announced by Respondent were favorable to the
B.
The 8(a)(1) Allegation
The General
Counsel alleges in paragraph 6 of the complaint that in about November 2000,
Respondent, by Sandy Mariotto, interfered with employee’s union activities by
telling employees that they could not do union business on her floor.
This incident
concerns a conversation that took place between Respondent’s patient care
manager Sandy Mariotto and registered nurse Deborah Cowger that was witnessed
by unit coordinator Amber Findlay while all three individuals were in the
Respondent’s 9th floor nurses lounge.
Mariotto
testified that she was certain that the conversation took place on October 26,
2000, around 11:20 am in the nurse’s lounge.6 On that morning Cowger was assigned the
duties of charge nurse for the entire day as she was on a light duty restriction
due to a back injury.7 Just after starting work that morning, Cowger
apprised Mariotto that she had a doctor’s appointment around 9:40 am and would
return in about an hour. Upon returning
from the doctor, who lifted the light duty restriction, Mariotto informed
Cowger that she would again be assuming the duties of the charge nurse and
would be taking over for Mariotto when she went to lunch. Mariotto told Cowger that upon her return
from lunch she would then relieve Cowger so she could take her lunchbreak. Before Mariotto left for lunch, around 11:20
am, she observed Cowger in the nurse’s lounge sitting at a table and reading
the collective-bargaining agreement while writing out a grievance form. Mariotto asked Cowger, what are you doing, as
she had just given her the assignment to serve as charge nurse. Cowger replied, “I am on break.” Mariotto informed Cowger, “that no union
business could be performed on the floor during work time.” According to Mariotto, she left the nurse’s
lounge to make her scheduled lunch appointment and did not discipline
Cowger. Both Cowger and
Mariotto, a
former Union President and representative, testified that she is aware that
union stewards may perform union duties while on non-work time or breaks. Likewise, she is aware that union duties may
not be performed on worktime.
Under these
circumstances, and particularly noting that Cowger was not disciplined and
continued after October 26, 2000, to perform union duties while in a nonwork
status, I do not find that Mariotto made the statement alleged by the General
Counsel in paragraph 6 of the complaint.
First, I found Mariotto to be a sincerely credible witness whose
testimony had a ring of truth to it.
Second, as confirmed by
Accordingly, I
recommend that paragraph 6 of the complaint be dismissed since I do not find
that Mariotto made a statement to Cowger that she could not do union business on
her floor.
C.
The 8(a)(1) and (5) Allegations