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,
August 21, 2007
DECISION AND ORDER
By Chairman Battista and Members Schaumber
and Kirsanow
On June 14, 2004, Administrative Law Judge Clifford H. Anderson issued the attached decision. The Respondent and the General Counsel each filed exceptions, a supporting brief, an answering brief, and a reply brief.
The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.
The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,2 and conclusions and to adopt the recommended Order as modified and set forth in full below.3
In adopting the judge’s conclusion that the Respondent
unlawfully withdrew recognition from the Union during the certification year,
we agree with the judge’s finding that the Respondent failed to show that the
The
Less than a year later, on September 24, 2003, the Respondent
received a document titled “Petition to Decertify the
The judge found that the withdrawal of recognition violated Section 8(a)(5) on two separate grounds. First, rejecting the Respondent’s contention that the Union engaged in inexcusable procrastination or otherwise manifested bad faith in delaying bargaining, the judge found that the certification year began to run on October 1, 2002, and therefore that the Respondent unlawfully withdrew recognition during the certification year. Second, citing Chelsea Industries, 331 NLRB 1648 (2000), enfd. 285 F.3d 1073 (D.C. Cir. 2002), the judge found that the Respondent was precluded from relying on the September 23 petition as a basis for withdrawing recognition because the petition predated the expiration of the certification year. We affirm the judge’s 8(a)(5) finding based on the first of these grounds.5
Where an employer has refused to bargain with a certified
union while pursuing its right to judicial review, the certification year
begins on the date of the parties’ first bargaining session following final
affirmance of the Board’s order, Van Dorn
Plastic Machinery Co., 300 NLRB 278 (1990), enfd. 939 F.2d 402 (6th Cir.
1991), unless “there is a significant delay in the start of bargaining
attributable to inexcusable procrastination or other manifestation of bad faith
on the part of the union,” id. at 278 fn. 4.
When the start of the certification year has been delayed because of
litigation, “‘some time can reasonably be allowed before the certification year
begins for the union to reestablish contacts with unit employees to facilitate
bargaining on their behalf.’”
Here, there was nearly a year-and-a-half delay from certification
until the court of appeals enforced the Board’s bargaining order. Less than a month later, the
Remedially, the judge recommended that the Respondent be required to recognize and bargain in
good faith with the
The Board has previously held that an affirmative bargaining order is “the traditional, appropriate remedy for an 8(a)(5) refusal to bargain with the lawful collective-bargaining representative of an appropriate unit of employees.” Caterair International, 322 NLRB 64, 68 (1996). In several cases, however, the District of Columbia Circuit has required the Board to justify, on the facts of each case, the imposition of an affirmative bargaining order. In Vincent Industrial Plastics, supra, the court stated that an affirmative bargaining order “must be justified by a reasoned analysis that includes an explicit balancing of three considerations: (1) the employees’ Section 7 rights; (2) whether other purposes of the Act override the rights of employees to choose their bargaining representatives; and (3) whether alternative remedies are adequate to remedy the violations of the Act.” Supra at 738. Consistent with the court’s requirement, we have examined the particular facts of this case and we find that a balancing of the three factors warrants an affirmative bargaining order.9
(1) An affirmative bargaining order vindicates the employees’ Section 7 rights by providing the employees, who were denied the benefits of collective bargaining by the Respondent’s unlawful withdrawal of recognition, with the opportunity to negotiate and execute an initial collective-bargaining agreement. This is particularly important given that here, the Respondent’s withdrawal of recognition found to have violated Section 8(a)(5) also contravened the Board’s earlier decision and order, enforced by the D.C. Circuit, requiring that the Respondent recognize and bargain with the Union. Virginia Mason Medical Center, 333 NLRB No. 125 (2001) (not reported in Board volumes), enfd. 35 Fed. Appx. 4 (D.C. Cir. 2002). At the same time, an affirmative bargaining order does not unduly burden the Section 7 rights of employees who might oppose continued union representation because the duration of the order is no longer than is reasonably necessary to remedy the ill effects of the Respondent’s unlawful withdrawal of recognition.
(2) An affirmative bargaining order also serves the policies of the
Act by fostering meaningful collective bargaining and industrial peace. It gives the parties time to resume
negotiations and to execute a collective-bargaining agreement if those negotiations
are successful. It also ensures that the
(3) A cease-and-desist order without the temporary bar on
challenges to the Union’s majority status attendant on an affirmative
bargaining order would be inadequate to remedy the Respondent’s unlawful
withdrawal of recognition and refusal to bargain because it would allow another
such challenge to the Union’s majority status before the taint of the
Respondent’s previous unlawful withdrawal of recognition has dissipated. Allowing another challenge to the Union’s majority status without
such a period for bargaining would be particularly unfair in light of the fact
that the litigation of the Union’s charges in this case has taken several years
and, as a result, the
ORDER
The National Labor Relations Board orders that the Respondent,
1. Cease and desist from
(a) Counseling and issuing warnings to its employees
for engaging in protected concerted activity.
(b) Withdrawing recognition from the Union as the
collective-bargaining representative of its employees in the unit set forth below,
and refusing to meet and bargain in good faith with the
(c) 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) Rescind the September 2, 2003 counseling and the
September 8, 2003 written warning of employee Jeanette Rerecich.
(b) Within 14 days from the date of this Order,
remove from its files any reference to the unlawful counseling and written
warning of Jeanette Rerecich, and within 3 days thereafter notify her in
writing that this has been done and that the counseling and written warning
will not be used against her in any way.
(c) Recognize and, on request, bargain with the
All registered nurses and all other professional
employees employed by the Respondent at its Winslow (Bainbridge
(d) Within 14 days after service by the Region, post
at its
(e) 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.
Dated,
______________________________________
Robert J. Battista, Chairman
______________________________________
Peter C. Schaumber, Member
______________________________________
Peter N. Kirsanow, Member
(seal) National
Labor Relations Board
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 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 counsel our employees or issue warnings to them because they engage in protected concerted activities.
We will not withdraw recognition from the Union and refuse to meet and bargain in good faith with the Union as the collective-bargaining representative of our employees in the unit set forth below.
We will not in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed to you by Section 7 of the Act, which are listed above.
We will rescind the September 2, 2003 counseling and the September 8, 2003 written warning of employee Jeanette Rerecich.
We will, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlawful counseling and written warning of employee Jeanette Rerecich, and we will, within 3 days thereafter, notify her in writing that this has been done and that the counseling and written warning will not be used against her in any way.
We will recognize and, on request, bargain with the Union as the exclusive representative of our employees in the following appropriate collective-bargaining unit concerning terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement:
All registered nurses and all other professional
employees employed by our Winslow (
Richard Fiol, Esq. and Martin Eskenazi, Esq., for
the General Counsel.
Mark
A. Hutcheson Esq., Robert F. Porcarelli, Esq., and Sara S. Bowen, Esq. (
DECISION
Statement of the Case
Clifford H. Anderson,
Administrative Law Judge. I heard the above-captioned case in trial in
The complaint,
as amended at the hearing, alleges, and the answer denies, inter alia, that the
Respondent on or about September 2, 2003, wrongfully orally disciplined employee
Jeanette Rerecich and on September 8, 2003, issued her a written warning in
violation of Section 8(a)(1) of the National Labor Relations Act (the Act). The complaint further alleges, and the answer
denies, that the Respondent in June 2003 restructured its Winslow facility
operations resulting in the June 16, 2003 layoff of employee Denise Janetos and
the September 24, 2003 layoff of employee Maree Zawoysky without notice to the
Union or affording it an opportunity to bargain with respect to this conduct in
violation of Section 8(a)(5) and (1) of the Act. The complaint further alleges that Respondent
changed the work schedule of employee Jeannette Rerecich without notice to the
Union or affording it an opportunity to bargain with respect to this conduct in
violation of Section 8(a)(5) and (1) of the Act. Finally the complaint alleges and the answer
denies that the Respondent on or about September 26, 2003, withdrew its
recognition of the Union as the exclusive representative of a unit of the Respondent’s
Winslow employees in violation of Section 8(a)(5) and (1) of the Act.
Findings of Fact
Upon the entire record herein, including helpful briefs from the Respondent and the General Counsel, I make the following findings of fact.1
i. jurisdiction
The Respondent
is a nonprofit corporation providing integrated health care in the
Based on the
above, there is no dispute and I find the Respondent is and has been at all
times material an employer engaged in commerce within the meaning of Section
2(2), (6), and (7) and a health care institution within the meaning of Section
2(14) of the Act.
ii. labor organization
The record
establishes, there is no dispute, and I find the
iii. the alleged unfair labor practices
A. Evidence
1. Background
At all
relevant times the Respondent has maintained a non-acute care outpatient clinic
in
2. Events relevant to the discipline of Jeanette Rerecich
Rerecich is a
longtime registered nurse and Clinic employee who had been working as part of
the Clinic’s internal medicine team.
Rerecich testified that in the spring of 2003, a morale committee made
up of various nonmanagement Clinic employees was formed to “attempt to identify clinic problems and come up with solutions in
order to improve morale.” Rerecich
testified she was a supporter of the idea but was not a member. She did receive e-mails from the committee
however including one dated June 30, 2003, addressed to “the team” from the
committee leader containing a summary of employee responses to the committee
dealing with problems and suggestions for improvement. She testified that she:
Believed that
this was—the team had said that they would keep the staff updated regarding
their progress and, when I received this e-mail, that’s how I perceived it,
that it was an update from the team for the staff.
Sometime in
the first week of July, Rerecich had a discussion with a fellow employee,
Janice O’Conner, regarding certain problems at the Clinic during which the
content of the e–mail was mentioned by Rerecich. She testified:
I asked [O’Conner]
if she had a chance to look at the results of the findings of the committee and
she informed me that she did not get the e-mail and asked if she could have a
copy and so I printed it off and gave it to her.
Members of the
committee came to learn that Rerecich had given a copy of the e-mail
communication to O’Conner and were evidently displeased. They sent an e-mail to Rerecich titled “Recent
Episode of ‘inappropriate behavior,’” which stated:
Some of the issues that we’re clearing identified recently through our team’s efforts were lack of trust, communication, confidentiality and honesty among management members. As a “team” we have tried to enforce these values among ourselves often times confronting each other in order to maintain a good open relationship.
We, as a group, would like to convey to you our disappointment in your inappropriate decision to share information that was confidential. It indicates to us that management is not only a fault for lacking these virtues [sic]. The issues raised should be directed toward the entire staff.
This type of behavior cannot be tolerated as it perpetuates the underlying problem we have here in the clinic. That being poor morale due to lack of trust. We will work through this. Hopefully as a group of individuals working closely together on a daily basis we will begin to recognize the importance of interacting with each other honesty, [sic] openly and respectfully.
Those involved
spoke of the matter to Clinic Section Head Dr. Leatham over the following days
and management was made aware of employee unhappiness over the memo being
provided to another employee.
Rerecich
testified that on September 2, 2003, in Clinic Manager Hazelton’s office, the
matter of the e-mail and her provision of the memo to another employee came
up. Rerecich recalled:
[Hazelton]
said that—that she knew that I had shared a confidential e-mail and informed me
that this was not an okay thing to do and that I was the nurse on the team and
that I should be careful of doing this, and my response to her was I did not
know this was a confidential e-mail, it was not labeled confidential, that my
impression when I did share it with Janice [O’Conner] was that this was an
update from the team to the clinic staff.
On September
8, 2003, Rerecich received a written warning on Respondent’s preprinted form
entitled: “Documentation of Written Warning for Inappropriate Behavior.” The document was triggered by an event
involving patient information confidentiality occurring on September 2, 2003,
but the warning also referred to the “team” memorandum issue. The warning, the omitted portion of which
addresses the September 2, 2003 patient confidentially matter not under challenge
herein, states in part:
This warning is being given for your continued demonstration of a pattern of unprofessional behavior, of exercising poor judgment as a health care provider & in demonstrating disruptive behavior. You have been counseled on these issues previously, specifically on February 1, 2003, July 9, 2003 & most recently on September 2, 2003.
. . . .
Past dates and subject of discussions we have had with you are:
. . . .
9/2/03 Sharing of a confidential e-mail with a co-workers [sic] demonstrated a lack of good judgment & resulted in disrupting the morale of your coworkers & made them very angry.
Please be advised that if corrective action is not undertaken immediately or if there are further demonstrations of such unacceptable behaviors, it may lead to further disciplinary action up to and including termination of employment.
3. Bargaining history
On September
8, 2000,2 the
All registered
nurses and all other professional employees employed by the Respondent at its
Winslow (Bainbridge Island) facility, but excluding all physicians, all
nonprofessional employees, and guards and supervisors as defined by the Act.
The Respondent
sought Board review of the direction of election, but on November 14, 2000, the
Board denied the Respondent’s request for review. An election was held on November 17, 2000,
and on December 6, 2000, the Regional Director issued a Certification of
Representative certifying the
The
To ensure that
the employees are accorded the services of their selected bargaining agent for
the period provided by law, we shall construe the initial period of the
certification as beginning the date the Respondent begins to bargain in good
faith with the
The Respondent
refused to comply with the Board’s Order and the matter was taken to the United
States Court of Appeals for the
In response to
the Court of Appeals’ order, the Respondent posted the required Board notices
starting on June 20, 2002 and, presumably, ending on or about August 20, 2002.3
On June 25, 2002, the
During the
course of bargaining, the parties negotiated and reached tentative agreement on
various matters conditioned on complete agreement on a new contract. Thus on June 20, 2003, the parties reached a
tentative agreement on contract language covering per diem employees including
the following:
Per diem
employees shall make a good faith effort to work at least one (1) eight hour
shift every two pay periods, unless other specific arrangements are made with
the Clinic in advance. Any per diem
employee not meeting this commitment may be terminated due to lack of
availability. In addition, a per diem
employee may be terminated if the per diem employee has not worked at the
Clinic for a period of no less than one year because of lack of available work
at the Clinic.
On Wednesday,
September 24, 2003, Clinic Manager Terri Hazelton received a document entitled:
“Petition to Decertify the
4. Events
relevant to the prewithdrawal of recognition
bargaining allegations
a.
Employee Janetos
Janetos is a
nurse practitioner. She began her
employment with the Respondent in May of 1998 at another of the Respondent’s
clinics and transferred to the Clinic in the fall of 2001 working in the Clinic’s
urgent care department on a half-time basis.4 In early 2003, Janetos took employment elsewhere,
quit her regular Clinic employment, and on February 2, 2003, was converted to a
per diem employee.5 From that time forward to mid-June 2003,
Janetos worked some days and was unavailable for others days when called.
On June 13,
2003, following a telephonic message left by Clinic Manager Hazelton and a
vacation delay, Hazelton and Janetos met at the Clinic alone in Hazelton’s
office. Janetos testified that Hazelton
told her they would not be needing her any longer and that “they needed to
clean up the roster of per diems and that they had hired someone to work in
urgent care.” Janetos recalled that
although Hazelton repeated the assertion that her release was necessary to
clean up the roster, no other reason for her termination was provided.
On or about
June 18, 2003, Janetos received a letter dated June 16, 2003, from the
Respondent’s human resources department, which stated in part:
Due to the
evolving needs of the medical center and our current staffing needs, we have
decided that we can no longer maintain your status as an on-call employee. Therefore this letter is to inform you that
your position as a per diem employee at VMMC has been terminated effective
6/8/03.
The letter
gave no other reason for the termination.
Hazelton
testified that Janetos was not terminated because the roster needed to be “cleaned
out” because she had not worked recently, but rather testified that Janetos was
discharged because as a per diem employee she had been unavailable for work
several times when called.
Janetos sent
an e-mail to Dr. Leatham dated June 20, 2003, seeking reconsideration of her
termination. Her note states in part:
Terri [Hazelton] also confirmed to me that as a per diem resource I am not costing the clinic anything and the only reason VM is doing this is to “clear up the roster.” I have a difficult time understanding this decision especially in light of the fact that there is a tentative union contract in place that VM has agreed to with language stating that per diem workers can be terminated if they have not worked in a year. This is not the case with me. I realize that there have been times when I was unable to fill in recently. . . .
Dr. Leatham
responded on July 11, 2003 by e-mail.
Her note begins:
I have taken a
long time to respond to this because you are represented by the union and this
is somewhat of a negotiation that must go through them. I have always been very open and willing to
work directly with any one at the clinic.
Terri, Gary and Karla and I work together to make many decisions about
our employee roster. We all agreed to “clean
up” the roster of per diems. There is a
cost associated with keeping per diems on the roster as the organization’s
insurance and malpractice costs are based on the total number of professionals on
our current roster. That is one of the
driving reasons to keep it lean.
b. Employee Zawoysky
Zawoysky is a
registered nurse who began working on the Clinic’s family practice team in May
2001 as a per diem employee. At the end
of 2002, Zawoysky became eligible for social security benefits which made it
desirable to limit her hours at the Clinic to 3 days a month, a reduction from
her previous availability.
Zawoysky
worked until September 24, 2003, when she received a telephone call from
Hazelton who told her: “because of restructuring and rescheduling, we will no
longer need your services.” Zawoysky
went to the Clinic the following day and met with Mather and Hazelton. She testified that she expressed displeasure
at the manner of her release and the three discussed the situation. Zawoysky recalled:
[Hazelton] talked about the restructuring of the clinic in terms of, instead of having family practice and internal medicine, they were combining those and calling it adult medicine. That was going to impact staffing and that was one reason that they would not need me, because they were putting Jeannette Rerecich on five 8-hour days instead of four 10-hour days.
. . . .
She worked in internal medicine and that would mean that they were needing to give some of their regular part-time employees—you know, they were needing to find more hours for their other employees, regular part-time employees. So that was one reason. The other was that they had visited other clinics and were being encouraged to decrease the clinic roster. And then one of the final points that was made was my availability. Because I was not as available, because my availability had decreased to approximately three—three days a month, they just felt that—she just felt that I wasn’t flexible enough as they needed me to be.
Hazelton sent
Zawoysky a letter dated September 29, 2004, reiterating in writing the reasons
for ending Zawoysky’s position as a per diem employee at the Clinic. The letter states in part:
As I explained, like all the other VM Clinics, we have been asked to take a hard look at our staffing numbers. We certainly want to have sufficient staff to cover our patient needs, but we also must make sure we are using our staffing wisely and that we are providing work especially for those who have designated FTEs. As I referenced in our conversation with you and Karla, the need for less per diem staff is directly related to changes over the last few months in our physician staff and the need to adjust the hours of regularly scheduled employees to enable use to schedule them according to their coded hours. This was not an easy decision to make, nor did we take it lightly or hastily without considering the impact on the Clinic.
Maree, I want to thank you again for your dedication and commitment to the Winslow Clinic. I know it has been difficult to adjust to all of the changes taking place especially with your need to contain your availability to only 3 days a month. But it is very hard to stay current in one’s practice and to adjust to ongoing changes without working on a more regularly scheduled basis. It is also more difficult to schedule per diems that have greater restrictions on the availability than others.
c. The schedule change of Rerecich
At the
September 22, 2003 bargaining session, the Respondent told union negotiators
that the Clinic was going to change employee Rerecich’s schedule from 4 10-hour
days to 5 8-hour days. The
Rerecich
testified as to what happened at the meeting:
I went up to Terri [Hazelton’s] office and Karla and Terri were there and I believe it was Terri who informed me that my schedule would be changing and she said that I would be now working five 8-hour days and so that I would be covering the internal medicine team all five days.
. . . .
I did not say anything. I did not feel it was an area that I could enter into or discuss because I had just received the written reprimand shortly before that. So I simply asked what my hours would be and what time they wanted me to come and what time they wanted me to leave.
Q. Were you given any choice in deciding whether you wanted to change the schedule?
A. When it was presented to me, it was—I did not feel there was any room for any discussion, that it was a done deal.
B. Analysis and Conclusions
1. The Rerecich discipline—Complaint Paragraph 6
The General
Counsel argues that the September 2 verbal counseling and the September 8, 2003
written warning to Rerecich were each directed to Rerecich’s act of sharing
information with a fellow employee concerning terms and conditions of
employment. Such actions are protected,
the Government argues, citing Kinder-Care
Learning Centers, Inc., 299 NLRB 1171 (1990). The General Counsel emphasizes that the Respondent
has no rule limiting employee disclosure of matters concerning working
conditions to fellow employees and that there was no restriction or limitation
by the Respondent put on the memo shared.
The counseling on September 2, the General Counsel notes, was
specifically directed to that protected conduct and under the Respondent’s
procedures is part of a progressive discipline system. Further, argues the General Counsel, the
September 8, 2003 written warning built on that counseling session,
specifically referring to it as part of “a pattern of unprofessional behavior”
which if repeated could lead to termination.
Thus, the warning noted: “If
there are further demonstrations of such unacceptable behaviors, it may lead to
further disciplinary action up to and including termination of employment.”
The Respondent
makes several arguments. First, the Respondent
notes that the written warning of September 8, 2003, addresses not the release
of the memo but rather an independent and important breach of patient
confidentiality that is not under challenge as improper by the General
Counsel. Second, the Respondent notes
that the basis for the Respondent’s discussion with Rerecich about the memo at
no time dealt with the content of the memo, but rather the consequences of its
release, i.e., staff disruption.
The General
Counsel’s cited cases and a host of others make it clear that employees engage
in protected activity when they discuss working conditions with fellow
employees. There were no special rules
or restrictions put in place by the Respondent, which limited those rights at
the workplace during working hours. The
Respondent does not directly challenge this proposition, but rather asserts
that it was not the content of the memorandum that caused the Respondent to
counsel Rerecich but rather that she “shared with others a committee e-mail
that the committee—not VM management—intended to keep confidential” and “the
disruption caused by her conduct.” (R. Posthearing Br. at 20.)
Based on the
record as a whole, including the arguments of the parties, I find that Rerecich
was engaged in protected activity in passing along the memorandum, I further
find that the Respondent may not rely on the “disruption” that Rerecich’s
protected conduct apparently caused to justify imposition of discipline. The events under challenge occurred during
the period when the
I find and
conclude the Respondent’s counseling was punishment for protected activity and
was explicitly designed to discourage such activity in future. And, given the context, the Respondent will
not be heard to suggest that it did not or could not reasonably know that its
September 2, 2003 counseling session would have such an effect: That was its
purpose. I find that the Respondent
violated Section 8(a)(1) of the Act by counseling Rerecich on September 2. I therefore sustain Complaint Paragraph 6(a).
The Respondent
argues that the September 8, 2003 written warning was directed to other nonprotected
conduct and not the sharing of the memorandum.
The Respondent is correct that the patient case confidentiality
discipline is the precipitating circumstance for the warning and discipline
based on that conduct is not under challenge by the General Counsel. The Respondent is not correct, however, that
the warning of September 8 does not incorporate and, in the sense of a
progressive discipline system, build on the memorandum’s release and the September
2, 2003 counseling regarding it. Since
the September 8, 2003 warning incorporates the earlier improper discipline for
Rerecich’s protected activity, it also improperly punishes the employee for
engaging in that protected activity. Indeed
the September 2 counseling session and the conduct it condemned was explicitly
included in the list of conduct on the September 8 warning, coupled with the
unambiguous statement that a repeat of such conduct by Rerecich would cause
further discipline to be administered.
Thus, the protected conduct is specifically forbidden to Rerecich in the
future and the warning threatens further discipline for engaging in such
protected activity in future. The
warning is so infused with reference to the earlier protected sharing of the
memo that it is not possible to separate the portions of the memo directed to
the more recent events involving patient confidentiality. I therefore find that the Respondent violated
Section 8(a)(1) of the Act by issuing the written warning to Rerecich on
September 8. I sustain Complaint Paragraph
6(b).
2. The prewithdrawal
of recognition bargaining allegations6
—Complaint Paragraph 7
The prewithdrawal
of recognition bargaining allegations discussed below are alleged in Complaint Paragraph
7(b) to constitute unilateral changes taken “without prior notice to the Union,
and without affording the
a. The terminations of Janetos and Zawoysky
The General
Counsel argues that Janetos and Zawoysky were laid off without the
Normally
layoffs after a union certification are not a management prerogative and are a
mandatory subject of collective bargaining. Farina
Corp., 310 NLRB 318 (1993);
Porta-King Building Systems, 310 NLRB 539 (1993). The Board has found that the bargaining
obligation occurs even though the layoff in question is permanent rather than
temporary. Winchell Co., 315 NLRB 526 (1994). . . . Indeed, an employer may violate Section
8(a)(5) when it lays off a single employee without giving prior notice to the
The Respondent
argues that it has a “no-layoff” policy and that it did not layoff, but rather
terminated Janetos and Zawoysky “pursuant to its practice of ‘cleaning the
rosters,’” (R. Br. at 12), i.e., terminating per diem employees who were not
working sufficient hours to justify the increased costs of maintaining their
per diem status.7 The Respondent argues that this is a longstanding
practice and points to documentation received into evidence establishing
significant systemwide and Clinic-based terminations of per diem, or on call,
employees occurring from 1999. The
Respondent concludes on brief at 13: “The terminations emanated from [the Respondent’s]
long-standing practice: the terminations
themselves did not constitute a change in policies or procedures such that
notice or an opportunity to bargain was required.”
The Respondent
further argues that the parties in fact bargained over Zawoysky’s termination
prior to its implementation in that the
It is critical
at the threshold of the analysis respecting these allegations to establish what
was done to these employees and the basis for doing so. The allegations of the complaint sound only
in a violation of Section 8(a)(5) of the Act.
No contention has been made that the Respondent took the action it did because
of the employees’ protected activities or in order to manipulate the size of
the bargaining unit.
Based on the
record as a whole, I find that the Respondent terminated each employee and did
not lay them off as the Government contends.
The Respondent’s internal treatment of them as terminated makes this
clear. Further, I find that for purposes
of the analysis herein, the two individuals were terminated because the
Respondent made a determination that the extent of availability of the two as
per diem employees was insufficient to justify their retention on the employee
roster. Additionally, I find that the Respondent has established a past
practice both systemwide and at the Clinic in which it regularly removes
individuals from the per diem roster by terminating them when the Respondent
concludes their limited work availability is not sufficient to justify their
retention as per diem employees.
Given the
above: Was the Respondent obligated under the Act to provide notice and an
opportunity to bargain to the
The
Respondent, citing Fresno Bee, 337
NLRB 1161 (2002), and Praxair, Inc.,
317 NLRB 435 (1995), notes that the Board traditionally requires informing the
Union of the rules and standards for employees, but does not require predetermination
notification of the application of those rules if they are applied in a manner
consistent with past practice. Unless
and until the Board adopts the standard the General Counsel advances or some
other standard, the Respondent’s cited cases are persuasive.
Further, I
find no unsatisfied obligation to bargain over the effects of these terminations. Accordingly, I find there was no unfulfilled
obligation on the part of the Respondent to bargain over the contemplated
terminations of Janetos and Zawoysky either before or after their
terminations. I shall therefore dismiss Complaint
Paragraphs 7(a)(1) and (2).
b. Rescheduling hours of work for Rerecich
As described
above, the Respondent informed the Union it intended to change Rerecich’s hours
at a bargaining session and the
The General
Counsel argues, on brief at 18, that the “Respondent did not seek her approval
in a noncoercive fashion, and thus violated its bargaining obligation.” The Government argues that given Rerecich’s
earlier discipline, found violative supra, she was particularly sensitive to
possible additional employer discipline.
In that context, she would reasonably have been unwilling to disagree
with the Respondent’s proposed schedule change and therefore the
The General
Counsel makes two additional arguments. The
General Counsel argues, on brief at 18:
First, Rerecich
had requested representation [and] was told that it was not necessary. Had [the] Respondent answered yes, the
The Government
thus urges that telling Rerecich that she need not have a union representative
present was an element in the Respondent’s course of conduct that broke its
bargain with the
I reject this
argument because, under Board doctrine, employee union representation during a
meeting with her employer is a right only when discipline is reasonably seen as
possible as a result of the meeting.
When the Respondent’s agent told Rerecich that, for their meeting, such
representation was unnecessary, she was in effect assuring Rerecich that discipline
would not be involved in or result from the meeting. In my view Rerecich could reasonably only
have taken assurance from the statement made by management, not the reverse as
the General Counsel appears to argue.
Second, the General
Counsel argues that the nature of the meeting with Rerecich at which the
schedule change was discussed was inherently coercive and that it was therefore
“reasonable for Rerecich to conclude that she had no ability to affect the
schedule change.” I also reject this
argument because I find the circumstances of the Respondent’s meeting were not
improper or unreasonable. Thus, I find
that, while Rerecich may have been unsettled during the arrangement of the
meeting and in the meeting itself, the Respondent did not behave in an improper
manner such that it would be held to have violated the earlier bargaining table
agreement. And, since the Union had made
the bargaining table agreement described without seeking time to contact
Rerecich or to contemplate the matter further, no assertion that the Union had
insufficient time to bargain about the change will stand.
Based on all
the above, I find the Respondent did not violate Section 8(a)(5) and (1) of the
Act respecting the Rerecich schedule change.
I shall therefore dismiss Complaint Paragraph 7(a)(3).
3. The withdrawal
of recognition allegation—Complaint
Paragraphs 5 and 8
Paragraph 5(a)
of the complaint alleges the unit is appropriate for collective bargaining
within the meaning of the Act and the Respondent’s amended answer denies that
allegation. Complaint Paragraph 5(b)
alleges a majority of employees in the unit selected the Union as their
representative in a Board election conducted in Case 19–RC–14016 and complaint
paragraph 5(c) alleges the Union was certified as the representative of the
unit in Case 19–RC–14016 on December 6, 2000.
The Respondent’s amended answer admits these latter allegations. Complaint Paragraph 5(d) alleges that at all
times since the
The Respondent
asserts it was proper for it to withdraw recognition from and refuse to bargain
with the
These two
contentions merit separate consideration.
a. The appropriateness of the bargaining unit
Under the Act
an employer’s collective-bargaining obligation is to bargain with respect to an
appropriate unit of employees. In the
instant case, as set forth in detail above, the Board found the bargaining unit
appropriate on April 18, 2001, and the Court of Appeals enforced that
determination on May 28, 2002. The
Respondent contends that as of September 26, 2003, the unit was inappropriate.
The Respondent
does not base its claim on a change in the factual circumstances of the instant
unit. Indeed the factual evidence
submitted into evidence by the Respondent in support of its unit claim herein
is the identical record that had been before the Board and the Court in making
their findings in the unfair labor practice case, discussed supra, that the unit
is appropriate. Rather the Respondent
contends that the Board’s decisional law has changed and that the new Board law
commands reversal of the Board and Court of Appeal’s earlier findings that the unit
is appropriate.
The Respondent bases its argument on four Board cases: St. Luke’s Health System, 340 NLRB 1176 (2003); Budget Rent-A-Car Systems, 337 NLRB 884 (2002).