Kaiser-Permanente Medical Care

KAISER-PERMANENTE MEDICAL CARE 147 Kaiser-Permanente Medical Care Program and Hos- pital and Service Employees Union, Local 399. Case 31-CA-8603 March 4, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDALE On October 9, 1979, Administrative Law Judge David G. Heilbrun issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Re- spondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings, and conclusions of the Administrative Law Judge only to the extent consistent herewith. The complaint alleges, inter alia, that Respon- dent unlawfully bypassed the Union by requesting employees to waive their contractual right to over- time pay in exchange for preferred work schedules. The Administrative Law Judge found that Respon- dent merely contacted several employees about the possible application of the overtime provision in the contract, and that it did not negotiate with em- ployees to change any term of employment. He therefore recommended dismissal of the allegation that Respondent's solicitation of waivers violated Section 8(a)(5) and (1) of the Act. We disagree with the Administrative Law Judge's finding that Respondent did not deal di- rectly with employees concerning a proposed change in existing terms and conditions of employ- ment. The evidence shows that Respondent's prac- tice had been to assign work schedules on the basis of seniority. Respondent reassessed its scheduling policy in September 1978 after receiving com- plaints from employees in the hematology depart- ment. As a result, Respondent proposed that all laboratory assistants in the hematology section work a new schedule consisting of alternative workweeks of 6 and 4 consecutive days. The pro- posed schedule involved considerable amounts of overtime under the contract, however, and Re- spondent conditioned its implementation upon ob- taining waivers of overtime pay rights from the af- fected employees. Respondent, without consulting the Union, approached several employees and so- licited waivers. 248 NLRB No. 24 We find that the right to overtime pay was a term and condition of employment under the con- tract. Respondent was therefore obligated to nego- tiate the matter with the Union. Instead, without any discussion with the Union, Respondent solicit- ed waivers directly from employees. Contrary to the Administrative Law Judge's finding, Respon- dent did not merely seek to utilize the contract provision concerning overtime. For, while the con- tract provides an exception to overtime rates where an employee requests a particular schedule, it does not authorize the type of solicitation that Re- spondent undertook as part of its proposal to insti- tute a new departmentwide schedule. Accordingly, we find that Respondent violated Section 8(a)(5) and (1) by failing to consult the Union and dealing directly with employees concerning waivers of the right to overtime pay. AMENDED CONCLUSIONS OF LAW 1. By bypassing the Union and dealing directly with employees as to wages, hours, and other terms and conditions of employment covering em- ployees in the unit found appropriate herein, Re- spondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 2. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in unfair labor practices, we shall order it to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Kaiser-Permanente Medical Care Program, Los Angeles, California, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Bypassing the Union and dealing directly with employees as to wages, hours, and other terms and conditions of employment covering em- ployees in the following appropriate unit: All employees employed by Kaiser-Perman- ente Medical Care Program at its Vermont Avenue facility in Los Angeles, California, ex- cluding Medical Doctors, Registered Nurses, Registered Pharmacists, Optometrists, Pharma- 148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cy Cashiers, supervisory employees and Confi- dential Secretaries. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of their rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action: (a) Bargain collectively with Hospital and Ser- vice Employees Union, Local 399, with respect to wages, hours, and other terms and conditions of employment of the employees in the unit described above. (b) Post at its facility on Vermont Avenue in Los Angeles, California, copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Regional Director for Region 31, after being duly signed by a representa- tive of Respondent, shall be posted by Respondent immediately upon receipt thereof, and be main- tained by Respondent for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, de- faced, or covered by any other material. (c) Notify the Regional Director for Region 31, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. In the event that 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 Pursu- ant to a Judgment of the United States Court of Appeals Enforcing and Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT bypass Hospital and Service Employees Union, Local 399, and deal directly with our employees in derogation of their ex- clusive bargaining representative with respect to wages, hours, and other terms and condi- tions of employment covering employees in the following appropriate unit: All employees employed at the Vermont Avenue facility in Los Angeles, California, excluding Medical Doctors, Registered Nurses, Registered Pharmacists, Optom- etrists, Pharmacy Cashiers, supervisory em- ployees and Confidential Secretaries. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of rights guaranteed them by Section 7 of the Act. KAISER-PERMANENTE MEDICAL CARE PROGRAM DECISION STATEMENT OF THE CASE DAVID G. HEILBRUN, Administrative Law Judge: This case was heard at Los Angeles, California, on June 14, 1979, based on a complaint alleging that Kaiser-Perman- ente Medical Care Program, called Respondent, violated Section 8(a)(1) and (5) of the Act through direct negotia- tion with employees during September 1978 in deroga- tion of Hospital and Service Employees Union, Local 399, called the Union, as exclusive bargaining representa- tive of such employees, while contemporaneously threat- ening to discharge the Union's chief steward because he attempted to resolve employee complaints concerning their working conditions or because he engaged in other protected concerted activities for the purposes of collec- tive bargaining or other mutual aid or protection. Upon the entire record,' my observation of witnesses, and consideration of a post-hearing brief filed by General Counsel, I make the following: FINDINGS OF FACT AND RESULTANT CONCLUSION OF LAW Pursuant to a lengthy bargaining relationship, the cur- rent contract between these parties was executed Sep- tember 29, 1977, to be retroactively effective from April 1, 1977, and last through March 31, 1980. Its scope is throughout Los Angeles and Orange Counties, in which several medical centers are situated. This case arose at the Sunset facility where 3,700 persons are employed, mostly in 7-day operations.2 The contract has a section on overtime rates in which the following language, new to the current agreement, appears: All worked [sic] performed on the sixth (6th) con- secutive day of work shall be paid for at the over- time rate of one and one-half (1-1/2) times the straight time hourly rate, except when such sched- ule results from the request of the employee. [Arti- cle VI, section 3-margin reference 606.] ' Counsel for the Charging Party participated in this case only to the extent of his presence during the morning portion of the hearing. Respon- dent's counsel made an oral summation at the conclusion of the hearing and waived filing of a brief. I hereby note and correct the transcript as requested by General Counsel in an unopposed motion. 2 Respondent is engaged in operating hospitals and clinics in southern California, annually deriving gross revenues in excess of $250,000, while purchasing and receiving goods or services valued in excess of S50,000 directly from suppliers located outside California. I find from this that Respondent is an employer engaged in commerce within the meaning of Sec. 2(6) and (7) of the Act, and a health care institution within the meaning of Sec. 2(14). 1 further find, as is admitted, that the Union is a labor organization within the meaning of Sec. 2(5). KAISER-PERMANENTE MEDICAL CARE 149 Around mid-September 1978 management convened a meeting of supervisors to deal with complaints about work schedules emanating from laboratory assistants of the hematology section. Maxine Dunn, supervisor of this function, Nathaniel Keith, supervisor of microbiology, and others labored over this, concluding that the objec- tive of giving at least alternate weekends off to the most senior employees could only be achieved if all affected went on a "6-4" schedule. This signifies a workweek of 6 consecutive days followed by 1 of only 4 days for bal- ance. At that point in time certain laboratory employees had already waived overtime premium for the sixth con- secutive day of work by signing a document to this effect in consideration of having every other weekend off. From this confab, Keith was designated to obtain consent of several persons not yet so signing.3 On or about September 27 he approached this group (which included Bertha Lewis, Lola Ray, and others) with a blank form reading: Laboratory Supervisor 1526 Edgemont Laboratory I agree to work a schedule of six days in one work week, at straight time pay, and four days in the other work week in order to have alternating week- ends off. (Employee Signature) (Date) cc: Employee Employee File (Dept.) Employee Relations He proposed that they each sign in order to get the best possible work schedule. All declined, and he returned sheepishly to advise Dunn that these personnel of her direct supervision were united in opposing any change which might be a relinquishment of rights. For their part, the employees so importuned had taken the occa- sion of that afternoon's work break to speak with Union Chief Steward Jimmy L. Adams, Sr., on the matter. He advised them not to sign as requested, particularly be- cause he was not satisfied with the document's legality nor had he been able to carefully scrutinize its contents. This episode led in turn to a chance meeting with Dunn, who seemingly sensed a concern about the proposed waiver and invited Adams into a supervisor's office for further discussion. They were soon joined by Keith, and after inconclusive argument ensued supervisory Chief Technician Richard C. Pascual was summoned. An angry debate followed between Adams and Pascual, the former insisting that waivers of this type were illegal and the latter responding that the effort was but an exercise of management rights in scheduling employees. Soon "hollering" occurred causing Adams to announce he was leaving rather than "take this" any longer. As he moved toward a door, Pascual suddenly ameliorated his tone and grasped at Adams' coat sleeve in asking that he wait. 3 Approximately 35 persons are employed in hematology. Without the ability to assign them all to a 6-4 schedule. complete functional coverage could not be achieved and still have a modicum of alternate weekends off for more senior people Adams huffed free and walked away as Pascual called after him not to come back for any more discussion of the subject.4 Adams then proceeded to schedule tasks required in his occupation of autopsy technician, pausing only to telephone another steward asking that it be reported to the Union's president that he had just been "terminated." Before completion of his work shift that day, Adams was visited in the morgue by Labor Relations Representative Gordon Hill who inquired about the reported "hassle" with Pascual, complimented Adams on his calmness and advised he would "get with [Adams] later." The following day Adams caused a grievance to be filed, accompanied by a lengthy statement of complaint that described in its opening phrasing how he was "mali- ciously assaulted, battered and humiliated by . . . Pas- cual." That grievance was supplanted by the instant complaint, insofar as paragraph 12 relates to matters al- legedly affecting Adams. This case warrants only minimum comment. The claimed bypassing of the Union is shown to be nothing more than a routine solicitation of employee cooperation, should it suit their personal preference, in achieving con- tentment with work schedules of the round-the-clock he- matology function, but without the extraordinary busi- ness cost of premium pay for the sixth day necessitated in making coverage. The motivation was benevolent as long-service employee Lola Ray conceded that "lot[s] of complaints" had arisen about scheduling, while she her- self preferred weekends off. But more importantly a change was not being negotiated directly with employ- ees, only a contact seeking to apply a feature expressly contained in the negotiated agreement For this reason authorities relied on by the General Counsel are largely irrelevant, and the two perhaps even remotely in point are clearly distinguishable. 6 4 I credit Pascual's testimony that he uttered "Jimmy if you leave now, do not come back " This is corroborated by an impressively forth- right Keith, and also is a believable expression of the controlled exaspera- tion felt by Pascual at this point. I discredit the testimony of Adams that Pascual literally and simply said Adams "ain't coming back" if he left, a remark which even on its face and under the known circumstances re- quires a tormented construction before being argued as a threat of dis- charge 5 A year earlier, and in the context of the freshly signed agreement and efforts to appropriately schedule the three employees covering a special- ized clinic at the Bellflower medical center, a business representative of the Union had confirmed in writing to the employee relations office at that facility that "the practice . .regarding members giving up the sixth day premium in order to get every other weekend off [was] contractually correct. .. " While Respondent relies heavily on this evidence, it does not directly address the issue here which is not that the sixth day might be paid only at straight time but instead how this would come to pass a In Obie Pacific. Incorporated, 196 NLRB 458 (1972), an employer had polled employees to determine their opinion of a work rule for the pur- pose of subsequently presenting such collective views to their bargaining representative "as a basis for obtaining a concession." In finding a viola- tion, the Board emphasized the question to be whether an employer "may attempt to erode a union's bargaining position by engaging in a direct effort to determine employee sentiment rather than leave such ef- forts to the agent of the employees." In Shenango Steel Buildings. Incorpo- rated, 231 NLRB 586 (1977) the Board remedied a technical violation of assembling employees during mid-term of a labor contract to discuss the possibility of instituting a 10-hour. 4-day work schedule, which as termed a "direct dealing with employees'" warranting a cease-and-desist Continued ISO DECISIONS OF NATIONAL LABOR RELATIONS BOARD That branch of the complaint dealing with Adams' tra- vails is similarly without merit. The fair meaning of Pas- cual's utterance was nothing more than a telling how he did want to repeat the delicate restoration of egos done a day or so before after petulant confrontation between a laboratory runner and the assistant director of nursing; an episode in which Adams had disjointedly pressed a claim of ill treatment toward his rank-and-file constitu- ent. Adams compounded this whole sorry saga by the order "to assure employees that [their employer] will not again bypass their collective-bargaining representative." vexatious postscript of how he deemed himself fired. This conclusion cannot be reached by any fair-minded evaluation of what was said in context of the buildup im- mediately preceding it, nor that the utterance even sig- naled such a threat. Overall, the General Counsel has not supported the complaint with adequate proof, and Board Member Pen- ello's teachings about unwarranted preoccupation with "trivia" and "trifles" have application here. Peerless Food Products, Inc., 236 NLRB 161 (1978); United States Postal Service, 242 NLRB No. 39 (1979).[Recommended Order for dismissal omitted from publication.]