South Shore Hospital

DECISIONS OF NATIONAL LABOR RELATIONS BOARD South Shore Hospital and Mass. Hospital Workers Union, Local 880, S.E.I.U., AFL-CIO.' Case I- CA- 138982 September 28, 1979 DECISION AND ORDER BY MEMBERS JENKINS, MURPHY, AND TRUESDALE On May 14, 1979, Administrative Law Judge Frank H. Itkin issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed brief in support of the Administrative Law Judge's Decision. 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, findings,3 and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein. 4 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge as modified be- low, and hereby orders that the Respondent, South Shore Hospital, Weymouth, Massachusetts, its offi- cers, agents, successors, and assigns, shall take the ac- tion set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraph (c): "(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." I The name of the Union appears as amended at the hearing. This case was formerly consolidated with Case -CA-14121, which was severed at the hearing pursuant to a settlement agreement. Respondent has excepted to certain credibility findings made by the Ad- ministrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. Respondent has requested oral argument, This request is hereby denied as the record, the exceptions, and the briefs adequately present the issues and positions of the parties. 'We find that the broad injunctive order recommended by the Adminis- trative Law Judge is not warranted in this case and that a narrow order is sufficient to remedy the violations found herein. Accordingly we shall modify the recommended Order and notice to reflect this change. 2. Substitute the following for paragraph 2(e): "(e) Notify the Regional Director for Region 1, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herein." 3. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all parties had an opportuni- ty to present evidence, and cross-examine witnesses, the National Labor Relations Board has found that we violated the National Labor Relations Act, as amended, and has ordered us to post this notice. We intend to abide by the following: WE WILL NOI fail or refuse, upon request. to bargain collectively and in good faith with re- spect to rates of pay, wages, hours of employ- ment, and other terms and conditions of employ- ment with Mass. Hospital Workers Union, Local 880, S.E.I.U., AFL-CIO, as the exclusive bar- gaining agent of our employees in the unit de- scribed below, by refusing to bargain with the Union over wages and other economic benefits which were proposed by the Union unless and until the Union agreed to reductions in certain existing benefits as proposed by us, and by refus- ing to bargain in good faith with the Union with respect to wages. The appropriate bargaining unit is: All full-time, permanent part-time and part- time employees of South Shore Hospital at our Weymouth facility employed as X-ray tech- nologists, nuclear technologists, laboratory technicians, laboratory technologists, respira- tory therapists, respiratory therapy techni- cians, physical therapy assistants operating room technicians, EKG technicians, orthope- dic technicians and pharmacy technicians, but excluding all licensed practical nurses, regis- tered nurses, professional employees, clerical employees, all students, temporary and casual employees, managerial employees, guards and supervisors as defined in Section 2(11) of the Act. WE WILL NOT discourage membership in said Union, or in any other labor organization, by discriminatorily withholding from the above unit employees wage increases which were granted to our employees who are not in the above unit. 245 NLRB No. 110 R48 SOUTH SHORE HOSPI1 At. WE WIll. NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the National Labor Relations Act. WE Wl.., upon request, bargain collectively and in good faith with said Union as the exclu- sive bargaining agent of our employees in the above unit with respect to rates of pay, wages, hours of employment, and other terms and con- ditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. WE WILL make whole our employees in the above unit for any monetary losses they may have suffered as a result of our discriminatory withholding of wage increases granted to our nonunit employees, with interest. SOUTH SHORE HOSPITAL DECISION FRANK H. ITKIN. Administrative Law Judge. Unfair la- bor practice charges were filed by the Union on November 28, 1977, and were amended on December 23, 1977. and on May 9, 1978. A complaint issued on January 5, 1978. and was amended on March 30 and May 15, 1978, and later at the opening of the hearing in this case. Hearings were con- ducted in Boston on June 26, 27, 28, 29, and on September 5, 1978. Briefly, General Counsel alleges that from about September 15, 1977, to about March 22, 1978. Respondent Hospital refused to bargain with the Union over wages and several other economic benefits which were proposed by the Union unless or until the Union agreed to reductions in certain other existing benefits as proposed by the Hospital. General Counsel further alleges that, thereafter, commenc- ing about March 22, 1978, Respondent Hospital refused to bargain in good faith with the Union with respect to wages. General Counsel contends that Respondent Hospital, by the foregoing conduct, violated Section 8 (aX5) and (1) of the National Labor Relations Act. In addition, General Counsel alleges that Respondent Hospital also withheld in- volved wage increases from the unit employees which were granted to nonunit employees from on or about October I, 1977, to on or about April 24, 1978. because the unit em- ployees had engaged in protected Union activities, in viola- tion of Section 8(a)(3) and (1) of the Act. Respondent Hos- pital denies that it violated the Act as alleged. Upon the entire record, including my observation of the witnesses. and after due consideration of the briefs of counsel, I make the following findings of fact and conclusions of law: FINDINGS OF FACT A. Introduction Respondent Hospital, a Massachusetts corporation. maintains its principal place of business in Weymouth where it is engaged in operating a health care facility. It is undisputed and I find and conclude that Respondent Hos- pital is an employer engaged in commerce as alleged. It is also undisputed and I find and conclude that the ('harging Party Union is a labor organization as alleged. Further, it is undisputed and I find and conclude that. All full-time, permanent part-time and part-time em- ployees of Respondent at its We,,mouth fiacility em- ployed as x-ray technologists, nuclear technologists. laboratory technicians. laboratlor technologists. respi- rators therapists. respirator therapy technicians, physicial therapy assistants, operating room techni- cians. ekg technicians, orthopedic technicians and pharmacN technicians, hut c cliud, all licensed practi- cal nurses, registered nurnurses. protssional emploees. clerical employees, all students, temporars and casual employees. managerial employees, guards and, super- visors as defined in Section 27( 1 ) of the Act. constitute a unit appropriate for the purposes of' collective bar- gaining within the meaning of Section 9bh) of the Act. On April 4, 1974, a majority of the Hospital's employees in the above unit, by a secret ballot election conducted un- der the supervision of the Massachusetts State Labor Board Commission, designated or selected the Union as their rep- resentative for the purposes of collective bargaining. At all times since April 4, 1974, as stipulated. the Union has been the collective bargaining agent of a majority of the employ- ees in the above unit, and b virtue of Section 9(a) of the Act, has been and is now the exclusive representative of the unit employees for the purposes of collective bargaining. The Hospital, according to the uncontroverted testimony of Union Representative Gerald Shea and Hospital Asso- ciate Director Alvin Topham. employed at all times perti- nent to this case some 1,200 employees. About 100 of these employees are included in the above unit and are therefore represented by the Union. The remaining employees are not represented by a labor organization. he Hospital and the Union have executed three collective-bargaining agree- ments pertaining to the unit employees since May 1974. The most recent agreement expired on September 30, 1977. Union Respresentative Shea. the Union's chief spokes- man during the current contract negotiations. testified that by letter dated June 13, 1977 (G.C. Exh. 2). the Union notified the Hospital of its "intent to terminate our agree- ment as of September 30. 1977 .. ." and requested "a meet- ing . . . so that we may present proposals for modifications in the agreement effective October 1. 1977." The Union suggested "an initial meeting sometime the week of June 27." The parties were unable to meet on that date. Subse- quently, on July 7. 1977. union Representative Shea sent Michael Brown. attorney and chief spokesman for the Hos- pital, a letter containing a "copy of the Union's 1977 con- tract proposal." Shea noted: We're looking forward to meeting with ou on [July 20. 19771. I hope the Hospital will he prepared to re- spond to all or most of our proposals then. If you will be making any proposals for the Hospital, I would ap- preciate receiving them in advance of our meeting if at all possible. General Councel's Exhibit 4 is a copy of the ljnion's pro- posed 1977 agreement. Shea explained "that the proposal. as we submitted it to the HIospital in early July. was the R49 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD entire existing contract then in effect plus our proposed changes." The parties thereafter met on the following dates: July 20, 1977 August 10 August 17 August 31 September 16 September 21 September 27 September 28 October 3 October 4 October 13 October 20 November 2 November 3 November 15 November 16 February 1, 1978 March 22 March 30 April 3 April 18 B. he Bargaining Sessions 1. July 20. 1977 Union Representative Shea testified that at this initial session on July 20 the Union "reviewed its proposals for Management" which proposals "had already been sub- mitted through the mail"; the Union "did go through each and every one of its proposals and the reasons for them"; the Union "made an oral presentation concerning another item [a compensatory day off for holiday worked] and sub- sequently submitted the proposal in writing to the Hospi- tal" (G.C. Exh. 5); and the parties briefly discussed the Union's compensatory day off proposal. Shea further testi- fied that the Union requested the Hospital to bargain about wages "at the first bargaining session." Shea explained: At the first bargaining session on July [20], where the Union reviewed its proposals . . . previously submitted by mail, the Union noted that in addition to the spe- cific proposals in .. [G.C. Exh. 4], that the Union was interested in looking at the question of minimum to maximum ranges in the Hospital's pay scale for the technical employees, and that we would be interested to know if this were also something the Hospital would be interested in looking at whenever the Hospital was prepared to make us a counterproposal. Hospital Associate Director Topham recalled "that the Union had requested economic counterproposals from time to time, but I don't know when." Topham later acknowl- edged that "at the July 20 session the Union had requested a total counterproposal." This first session ended, according to Topham, with Hospital attorney and chief spokesman Brown requesting "data supporting [the Union's] wage pro- posals."' And, as Shea recalled, "on July 20 the Hospital did not respond" to the Union's contract proposals. 2. August 10, 1977 At the first session on July 20 Hospital attorney and spokesman Brown had requested the Union to provide "data supporting" its wage proposals. Union representative Shea recalled that at the next session on August 10 the Union, as requested, "presented certain statistics and re- i Brown did not testify in this proceeding. suits of some studies concerning hospital rates and benefits in the greater Boston area, to back up its economic pro- posals." In addition, at this second session, the Hospital submitted to the Union a written document containing some 12 "initial proposals." (See G.C. Exh. 6.) The lospi- tal's proposals pertain to, inter ali, the "probationary pe- riod" of employees; "overtime": "call to work": "pyramid- ing": "hospital work": "hours": "holidays"; "vacation"; "tuition assistance"; "unpaid leaves of absence": "union activities": "schedules"; and the term of the agreement. The document states: "The above are the initial proposals of the Hospital which reserves the right to submit further proposals." Shea testified that the Hospital's "proposals were both economic and noneconomic, and we discussed all the Hos- pital's [proposals] at first." Shea claimed, inter alia, that Hospital "proposal number one on the probationary period would have changed the time of the probationary period making it longer . . . proposal number 2 on overtime would have restricted the opportunity for part-time employees to earn overtime ... proposal number 3 on call to work would have . . . substantially reduced the opportunity for employ- ees to earn premium days ... proposal number 5 would have written into the contract a prohibition against employees doing anything other than Hospital assigned work . . .pro- posal number 6 . . . would have restricted in certain situ- ations the ability of employees to work overtime . . . pro- posal number 7 would have changed the formula by which part-time employees had their holiday benefit computed and changed it in a way where the holiday benefit would have been [reduced] . . . proposal number 8(a) . . . would have changed the formula for figuring the vacation benefit for part-time employees and would have reduced the bene- fit in most cases ... proposal number 9 would .... in lieu of the present section in the contract which [contains . . . a certain specific tuition assistance program .... [have] re- placed that article with an open-ended article whereby ... the unionized employees would have to accept whatever the Hospital designated to be the tuition assistance program. and there was no guarantee here that even the same level would be maintained . . .proposal number 10 would have changed the policy for paying health insurance premiums and life insurance premiums during certain leaves of ab- sence so as to reduce the number of months that an em- ployee on leave would be eligible to have the Hospital pay its share of the premium": and "proposal number 11 would have substantially restricted the access by Union represen- tatives to the Hospital premises."' Shea further testified that as of August 10, "none" of the Union's "economic proposals" had "been addressed" by the Hospital. Shea added that, of the noneconomic proposals, on August 10, the Hos- pital gave us a reply very brief-on each item. Shea also noted, inter alia, that the Union's proposed con- tract (G.C. Exh. 4) contained "a proposal concerning an elimination of the scope of the agreement clause, eliminat- 2 Hospital Associate Director Topham asserted, inter auia, that Hospital proposals 4 (pyramiding), 5 (hospital work), and 6 (workday) were "to clarify contract language." Topham also claimed that proposal 10 (health and life insurance benefits during leave of absence) was "to incorporate in contract language and for clarity sake." X50 SOUiTr SHORE HOSPITAL ing the zipper clause." The lospital's proposals (G.C. Exh. 6) do not refer to this item and, according to Shea. "we asked about it." The Hospital "didn't want to see any change in the contract language." l.ikewise, the Unionll's proposed contract contained a proposal that "asked that the employee's personnel file he open to his or her inspec- tion .... " The Hospital's proposals made no mention of this item; this subject also mentioned at this session: and "the Hospital saw no such need for such availabilit." There was also, according to Shea, a "brief discussion" on "compensatory day for holiday time worked."' The Union, according to Shea. had requested "a re- sponse" to its proposals at the August 10 session - we re- quested a counterproposal from the Hospital." ospital As- sociate Director Topham testified: Q. Now, it's been brought out Mr. Topham that the General Counsel's Exhibit Number 6, Hlospital's pro- posal on August 10, did not include a wage and benefit proposal. Could you tell us in your words why the Hospital didn't include a wage and benefit proposal in its August 10 proposal? A. The Hospital felt that the proposals that were submitted initially were important proposals and they wanted to get resolution of those proposals prior to the introduction of the wage proposal. Q. Why? A. They felt that to do otherwise would, number one, change the accepted process that had been fol- lowed each year. And, secondly. once a wage proposal is on the table it would have a negative effect of trying to orient the discussion toward the resolution of out- standing proposals. And, according to Shea, Hospital attorney and spokesman Brown stated "that noneconomic matters would he dis- cussed, as usual, before economic matters were .... "Shea. as he testified, responded that, in general, that was acceptable to the Union. However. I [Shea] wanted to note that it may be possible - it may be necessary to mix economic and non-economic items toward the end of negotiations. Brown "did not disagree" with Shea's statement. And, as Shea further explained, there was an agreement reached to that effect in princi- ple, but the Union added the proviso that . . . it may well become necessary to mix noneconomic items and economic items before the resolution of the noneco- nomic items.' She explained. "The Hospital, in giving us its .. written proposals on August 10]. had included agreement on two Union issues, . differential in vacation pay and scheduling of vacation time. That. there was virtually no discussion of. It was simply in the written papers they gave us and we noled it when we looked at it. And it . . seemed in response to what we'd asked ... " Shea further explained that the Union's proposals on these subjects. as accepted by the Hospital, essentially restated "existing pr;actice " 'Shea acknowledged that." . going hb our original iagreement to ge noneconomic Items tiul of the ay. we did nol make another request or the hospital to submit an economic offer until the September 16 meeting. hen we did make such a request 3. August 17. 1977 Union Representative Shca recalled that at the August 17 session" the Hospital responded on the L nion'> noiiccso- nomic proposals." Hospital associate director Tophain summarized the hospital's response in part as iollows. he Hospital responded to "the Union proposals concerning no- tification to the steward'' b stating "no''; Ihc hospital re- sponded to the Union proposal concerning "at age in- crease effective October I. 1977" b stating "that it was economic and . . . set it aside"; the hospital responded to the UInion's proposal "as to increasing the rate after promo- tion" by stating "that it was economic and ... set it aside": the Hospital responded to the Union's proposal "to substi- tute some minimum pay and shift differential and weekend differentials" by stating "that it was economic and ... set it aside": the Hospital responded to the [Union's proposal on "an increase in the call to work proposal" by stating that "the Hospital had a proposal on that": the Hospital re- sponded to the Union's proposal "to change the relief and higher classification" by stating "no"; the hospital re- sponded to the Union's proposal "to change . . . the oncall period pay" by stating that "it was economic and .. . set it aside": the Hospital responded to the ilnion's proposal to make a change "relating to the meal period" bh stating "no"; the Hospital responded to the Union's proposal to make "additions to the holiday provisions hb adding one holiday" by stating "that it was economic and ... set it aside"; the Hospital responded to the Union's proposal on making "various changes to the vacation article" b stating "that it was economic and ... set it aside'' the Hospital responded to the Union's proposal on "sufficient coverage for the vacationing employees" by in effect "saving no": the Hospital responded to the Union's proposal pertailning to "changes to the sick leave provisions by stating that the Hospital" was studying them; the Hospital responded to the Union's proposal on insurance by stating "that they were economic and set them aside": the Hospitl responded to the Union's proposal pertaining to employee personnel files by stating "no"; the Hospital responded to the L nion's proposal "concerning the event of [employeel suspension or discharge" by stating "no": the Hospital responded to the Union's proposal of a "language addition concerning the Union representative article" by stating that the Hospital "had a proposal on this issue": and the Hlospital responded to the LUnion's proposal that "article 19. scope of the agree- ment. be eliminated" by stating "no.'" Shea claimed that the Hospital had presented no counterproposals to the Union's initial proposals at this session.' 'As noted abose. at the August Il) session. the ttoslpial and the t nlioi had agreed upon the Union's proposals pertaining to scheduling of lvaction, and inclusion of wage dflerentlals n acatiln pa As testified h Shea. these proposals essentially restated exlsting practice Further. although Top- ham claimed that the Hospital also "had a proposal- on the I 'nmin's pro- posal pertaining to call to work.'" counsel for (eneral ( unsel notcs hat the Union's proposal and the Compaln,' proposal pertain "to enirclsel tiflcr ent issues" ('f. C( ('. xh 6, p I and G C It-h 4. p 101 I Ike, i. the Hospital's proposal and the I i..n propos.al pertaining ., "1 mon rprc- seniatlee- alddress dlfferen isues ( (;( i h t, p 1 A.i, t( t h 4. p 44) nShea ack noi lc. edged IhaI ,it Is,, , ( , t Ic, l , ,C ii .i . 1 11. 1 ,or..' propos.al to Il.lkec .i h.igc in t /il, t t li c ' I he I r.,il ">Akci lb its propsal *ld tlt i l- I .. . "it nt ~ m A kh II..t . x k h.ll t m hm wilg l Ic tl. I ,,, I, t tl ,.tlZ1t J;, 1 851 DECIt)SIONS OF NATIONAL LABOR RELATIONS BOARD 4. August 31. 1977 Hospital Associate Director Topham testified that after the August 17 session, "the Union. aside from its request for wage and benefit counterproposals." did not "request that its proposals ... be discussed instead of the Hospital's proposals." Topham also explained that from August 17, 1977, to March 22, 1978, the negotiations "focus[edl pri- marily" on the Hospital's proposals. Union Representative Shea testified that by this fourth session, the parties "reached an agreement on the Hospital's proposal concern- ing pyramiding . . . ." In addition. Shea recalled: Mr. Brown told us a number of times by August 31. to the best of my recollection, that [he] didn't see any reason [why] technical employees should be enjoying any better benefits than other employees at the Hospi- tal. Shea did not "agree with the Hospital's stated policy of equivalency between Union and nonunion employees." Shea asserted that he was "here to negotiate the contract for the bargaining unit people only .... "As Shea further explained: There was some discussion of the Hospital's position, that they wanted to make sure that the technical bar- gaining unit . . . didn't have any more benefits than other people at the Hospital. * * * * * Our objection was that it was not a relevant issue since we did not represent the other employees .... Shea added: ". .. I also told them that we did not come to the bargaining table to give up benefits just because some- body else didn't have them. We were willing to negotiate on our benefits and our whole package, but we were not going to do it on the basis of what other people did or didn't have." Further, Shea testified that the Union "proposed" that "it would arbitrate" the Company's proposal "concerning tuition assistance" or "it would negotiate a specific change in the tuition assistance program should the Hospital wish to propose one." According to Shea, The Hospital, through Mr. Brown as spokesperson, had at the August 31 session said, as part of a discus- sion about tuition assistance, that the Union's refusal to agree to the Hospital's proposal relative to the tu- ition assistance could well mean that we'd [have] a contract in December. Shea noted, inter alia, that "during the meetings that tran- spired in August," the "parties did discuss economic items" such as, for example, "overtime," "call to work," the Union's "proposal on the compensatory day for a holiday," the "work day proposal," "holiday prorata for part-timers," language." There was also "some discussion of the Union's compensatory day off proposal" at this session. 'Topham noted, however, that the union proposal on a "compensatory day was discussed several times ... and ultimately was resolved" and "there was also discussion dealing with notification of the Union in the event there was discipline to a unit employee .. ." "vacation pay for part-timers." "leave of absence," and "tu- ition assistance." And, Respondent Exhibit 5 is the "back up economic] information" which was "provided to the Hospital" by the Union on or about this time. 5. September 16, 1977 Union Representative Shea testified that at this fifth ses- sion on September 16, "we did make ... a request" for "the Hospital to submit an economic offer" or counterpro- posal "we asked for a whole economic offer, a counterpro- posal to our proposals." Hospital Associate Director Top- ham acknowledged that "the Union had requested economic counterproposals from time to time. . ."-the Union "had requested on several occasions throughout the fall that the Hospital present a total wage and economic proposal .... " And, as union representative Shea recalled, Mr. Brown responded that the Hospital would not make such an offer at this time, that the Union had agreed, he contended, in an August 10 bargaining ses- sion, that noneconomic items would be cleared up be- fore economic items. I [Sheal contested that fact. He IBrown] protested that we made such an agreement. He also said that it was simply too early for such an offer to be made by the Hospital. Mr. Brown said, at about the same [time] at this bar- gaining session, that the Hospital would make its offer once the issues that were currently under discussion were resolved. The items "under discussion" were, according to Shea, the "majority of the Hospital's proposals to [the Union] which we [the Union] had been discussing in the past several bar- gaining sessions." (See G.C. Exh. 6.) Further, Shea explained that the "reason" why the Union had requested "an entire economic proposal" from the Hospital "at that time" was, because in our opinion negotiations had bogged down with the Hospital insisting that . . . the Union give up certain existing benefits. And, we felt that it was not possible for us to consider the proposals any further that the Hospital was making without seeing their whole economic offer. Nevertheless, according to Shea, the Union continued "dis- cussing" the Hospital's proposals and possible "compro- mises." The Union had offered "compromises" or "counter- proposals as to the reductions in benefits ... requested by the Hospital."8 8 Shea explained, inter alia. that "on Hospitalproposal 7 we had offered to alter the base period that was used to compute the proration for the holiday benefit . . And. we said to the Hospital that we would be willing to consider other proposals. be it three months, six months or whatever"; that "on Hospitalproposal number 9 concerning tuition assistance, the Union pro- posed . . . that it would arbitrate this issue or that it would negotiate a specific change ...": that "on Hospitalproposal number 3 concerning call to work, the Union had indicated several areas in which it might be able to compromise .. ": and that "agreement" was reached on Hospital proposal number 4 and Hospital proposal number 5 "pyramiding" and "hospital work"). Counsel for Respondent notes in his brief (pp. 14 16) that vanous Hospital proposals were discussed at this session Shea recalled that possibly one or two of the Union's proposals ere also discussed at this session. 852 SOUTH SHORE HOSPITAL Shea recalled the following exchange between the parties at this session: At the close of the bargaining session, Mr. Brown on behalf of the Hospital said that they had contacted a mediator during the break in negotiations a few min- utes previous, and that we would be hearing from the mediator. I [Shea] objected strongly to this. I said that I thought it was irresponsible behavior on the part of the Hospital's bargaining committee, and that the re- sponsible and appropriate behavior would be for the Hospital to make us a whole economic offer .... Brown refused to make such an economic offer. 6. September 21, 1977 The sixth session was held on September 21 at the offices of the Federal Mediation And Conciliation Service. The parties "reviewed the status of the negotiations." Hospital Associate Director Topham. after reviewing his notes, ac- knowledged that Union Representative Shea had stated at this session: "We have had no economic proposals." Hospi- tal Spokesman Brown responded, according to Topham's notes: Have to have direction before costing, in order to bud- get funds. Must have framework of contract first. Em- ployer can't talk wages until we know other costs. Following this session, on September 22, the Union sent to the Hospital a 10-day notice of intention to picket and leaf- let the Hospital commencing October 4, citing the "Hospi- tal's intransigence in negotiations .... " (See R. Exh. 6.) 7. September 27, 1977 Union Representative Shea testified that at the Septem- ber 27 session, "both the Union and the Hospital proposed various trades." The Union "proposed a form of prorated holiday pay for part timers based on average hours in ex- change for its proposal on the holiday compensatory day." Shea explained that Respondent Exhibit 10 is the Union's proposal presented to the Hospital pertaining to "compen- satory day off' and "workday"; the Hospital "made coun- terproposals on the holiday compensatory day"; and "that counterproposal was tied in... to the Hospital proposal on prorating holiday and vacation pay for part timers-part of the trade that was proposed." Shea also recalled that he "took a position ... that the present proposals taken by the Hospital [proposals number 2 and 3 pertaining to "over- time" and "call to work"] were unacceptable." 8. September 28, 1977 Union Representative Shea testified that on or about this session on September 28 the hospital withdrew its "pro- posal number 12 concerning schedules." (See G.C. Exh. 6.) The Hospital and the Union "continued to discuss the items such as the holiday compensation day ... , [the] leave of absence provision ... [and] we discussed the prorata pay of holiday and vacation benefits for part-time employees .... " Shea explained: We were discussing them and ... both sides were mak- ing proposals and trying to make an agreement on them. The contract between the parties was to expire on Sep- tember 30, 1977. Shea acknowledged that. "as the meeting of September 28 drew to a close, it was obvious to both sides ... that the parties had not reached a new contract", and "the Hospital was willing to extend the contract." Hos- pital Associate Director Topham recalled: . . . The Hospital wanted to extend the contract for about two weeks. And the Union stated it did not want to extend past October 3rd. The contract expired on September 30, 1977. And, as stipulated by the parties, effective September 26, 1977, [the Hospital] granted to all nonunit employees a general wage increase ranging in amount from approximately 3 percent to 8.3 per- cent, which was the same general wage increase offered by [the Hospitall to the Union for unit employees on March 22. 1978. (See G.C. Exh. 21.) And, in addition, the Hospital "ab- sorbed" an "increase in premium costs" to be charged all nonunit employees by Blue Cross-Blue Shield, effective Oc- tober 1, 1977. (See G.C. Exh. 16.) 9. October 3, 1977 At this session on October 3 Union Representative Shea. as he testified, repeated his "request for a wage economic counterproposal." Shea recalled: On October 3 1 again asked the Hospital to make us a whole economic offer, saying that we weren't getting anywhere without such an offer on the table and that the Union could not consider any further compromises on the Hospital's demands to us.... the demands that they first gave us on August 10 that the Union give up certain benefits. Hospital spokesman Brown responded that "there was an agreement reached on August 10 that we were going to discuss noneconomics first and he intended to clear up the noneconomic issues before getting onto economic issues." Hospital Representative Topham, after reviewing his bar- gaining notes of this session, acknowledged that Shea had stated, We [the Union] never agreed to that. After discus- sion we qualified decision on that issues.9 The Hospital also "notified" the Union that, since the contract had expired they . . . would not be assuming the additional cost of the increased premi- ums for Blue Cross-Blue Shield for [the] bargaining unit. Hospital representative Brown announced at this se 1 that "because of some clerical error ... the members of . 'Shea recalled that about this time, ". .. I had proposed . .. that th, Union would drop all of its noneconomic proposals in return for the Hospi- tal dropping ... most of the proposals in their August 10 document." Brown refused. 853 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ithe] bargaining unit had been mailed a notice saying that the increased cost of premiums would be assumed by the Hospital .... " (See G.C. Exh. 16.) The Hospital later sent notices to the "bargaining unit employees" stating (G.C. Exhs. 17 and 18): The letter which you received recently regarding an increase in the Hospital's contribution for family Blue Cross/Blue Shield coverage was only meant for em- ployees not represented by the Union. The Hospital is still negotiating with the Union as to your wages, hours and benefits which include Blue Cross/Blue Shield contributions; therefore, the letter you received should be ignored. Shea noted that the Union had "requested that the Hospital continue to pay the same percentage amount . . ." for the unit employees and the Hospital had refused. (Cf. G.C. Exh. 18.)'° 10. October 4, 1977 At this session on October 4 the parties discussed "tuition assistance and benefits during leave of absence." Union representative Shea, as he testified, "said that we would be willing to consider these as part of a money offer." Hospital representative Brown "responded that he didn't want to make a money offer then, but we should take these issues and put them aside and look at them some point later and see if we could come back to them." The Hospital presented "a new proposal on work day." (See G.C. Exh. 9.) The Union, by this session, "had made a counterproposal to the Hospital about workday, indicating that [iti would agree to some definition of the workday." Further, by the end of this session, the Hospital and the Union had agreed tentatively "on the compensatory day for holiday proposal." And, also by the end of this session, "the Hospital had dropped one of its economic items, relating to prorata vacation pay for part-timers." II. October 13, 1977 At this October 13 session the Hospital presented a re- vised "call to work" proposal. (See G.C. Exh. 11.) Union representative Shea recalled that the Hospital negotiator said "that the procedures used and benefits received by the unit employees should be the same as those provided [for] and received by nonunit people." The "parties discussed how this procedure could affect employees' income." There was also a discussion pertaining to "staffing in the bargain- ing unit" and the Hospital's "leave of absence proposal."" In addition, as counsel for the Hospital notes in his brief (pp. 20-21), by October 13 the Union had learned of the wage increases recently granted to nonunit employees. Shea was asked at the hearing, "was this an amount that was acceptable to the Union?" Shea responded "It wasn't-it hadn't been offered to us." Further, the Union. as Shea acknowledged, "did not request the hospital at this October I°On the following day, October 4, the Union commenced picketing and passing out leaflets at the Hospital. See, e.g., Resp. Exhs. 8 and 9. " The Hospital's "position" was that its proposal on leave of absence "was merely a restatement of the current policy." 13 meeting to put the same percentage increase into effect for the Union or unit employees .... "2 12. October 20, 1977 At the October 20 session the "Hospital presented . . . still another proposal on the call to work issue .... " As union representative Shea recalled, I [Shea] . . . said that we'd be willing to discuss [a reduction in their call to work proposal] in the context of an overall economic offer from the Hospital, in re- sponse to our economic proposals. And, Hospital Representative Topham, after reviewing his notes for this session (G.C. Exh. 26). acknowledged that Hospital Spokesman Brown had said: Am not willing and will not be willing to negotiate economics betfore language is put to bed .... 3 13. November 2, 1977 Prior to the session on November 2, the Union had dis- tributed a leaflet at the hospital asserting that "Manage- ment refuses to make us an offer" and is "insisting that we agree to give up a number of benefits which we won in earlier contracts .... " The leaflet refers to, inter alia, "a strike" or "drastic action" in the absence of "some money offer from the Hospital soon .... " (R. Exh. 21.) Thereafter, at the November 2 session, the Hospital, according to union representative Shea, presented "a revision" of its initial pro- posals. (See G.C. Exh. 13.) Shea summarized the Hospital's November 2 "revision," in part as follows: It covered the Hospital's-a revision of the Hospi- tal's original proposal to us relative to probation, a revision of the Hospital's original proposal to us rela- tive to payment of premium pay when an employee was called to work. It incorporated the agreements we had reached on the example of pyramiding and the agreements in substance that we had reached on the prohibition on work other than that assigned by super- visors or a department head. It included the Hospital's proposal on the definition of the workday. It included a version of the Union's proposal on a compensatory day off when holidays were worked. It incorporated the agreement already reached on the proposals to de- fine the year for taking vacation, and to write into the contract the inclusion of shift and weekend differential in vacation pay. And, it proposed the Hospital's pro- posal on tuition assistance, and the Hospital's proposal on unpaid leaves of absence, and the Hospital's pro- posal on Union representatives.' In addition, Shea testified that when the Hospital pre- sented its November 2 proposal (G.C. Exh. 13), the Hospi- 12 Shea noted that: "I believe it was the April 3, 1978, session, when the Union said it would accept the wage proposal that the Hospital had offered with a difference on the effective date"-the "difference was the item of retroactivity." 3 Topham asserted that "if [he] were to translate Ihis] notes .. ," he "would replace wage proposals and substitute it for the word economic." 1' Shea acknowledged that this proposal had "dropped . .. some of the items which the Union had refused to agree to . . 854 SOUTH SHORE HOSPITAL tal did not state that it was "at the same time rejecting the rest of the Union's proposals-economic and non-eco- nomic." However, as counsel for General Counsel notes in his brief (p. I 1), "this November 21 proposal contained no counterproposals to the Union's [earlier] proposals on wages and benefits." Shea recalled that at this session Hos- pital representative Brown commented, "the longer nego- tiations went on without agreement then the more likely it was that the Hospital would make proposals to change benefits in the contract"-. . . there would be more propos- als to reduce benefits, more than was already on the bar- gaining table." 14. November 3. 1977 Union Representative Shea testified that on or by this November 3 session "we had worked out a reasonable com- promise" on the Union's compensatory day for holiday worked proposal. but [the proposals] were offered by each side . . . as part of the whole trade involving other items and since the whole trade didn't fly, they were sort of held as basically agreed upon .... Shea acknowledged that "there was some progress, some agreement, as to probation" and "workday", noting that "there were several trades offered ... through the media- tor." On "workday", the Hospital "finally agreed to" the Union's "request that any time they worked over eight they would be paid time and a half." 15. November 15, 1977 Union Representative Shea testified that at this Novem- ber 15 session the mediator "delineated" the "open issues," "aside from wages and benefits", as (1) tuition assistance, (2) leave of absence, (3) call to work, and (4) union repre- sentative. Shea would also include as "open issues" the "compensatory day" and "probation" items "because pre- viously the indication that these could be solved [was] in the context of a trade" and consequently "they were still on the table but more settable [sic] than the other four." The Union's "position" as to the Hospital's "leave of ab- sence proposal" was "that while we [the Union) could ac- cept some of what the Hospital was asking in its proposal ... we could not accept the entire position ... "; "... we [the Union] wanted to maintain the payments of health in- surance premiums ... ; we would concede on the life [insur- ance] .... " The Union's "position" on the Hospital's pro- posal pertaining to the "Union representative" was: The Union had offered to go some of the way on that issue, that is to restrict in some fashion the Union rep- resentative's access to the Hospital, restrict it com- pared to the old contract position. The Union, however, "could not agree to the Hospital's proposal . . . to restrict access to [a] Union representative only to situations where a scheduled meeting with an ad- ministrative agent had been made." Under the prior agree- ment, according to Shea, the union representative "had ac- cess to meet with members of the bargaining unit and the stewards in the cafeteria." Further, the Union's "position" on the "call to work pro- posal" was, we [the Union] would consider dropping the provisions ... in the existing contract language that called for the payment of double time when an employee was called to work ... dependent on the Hospital's wage offer and ... benefit offer .... [We] would consider dropping the double time if there were sufficient wage and benefit offers from the Hospital.'' The Union, as Shea explained, "was still waiting a counter- proposal from the Hospital on its wage and benefit propos- als." 16. November 16, 1977 Union Representative Shea testified that no "agree- ments" were "reached" at this session: the "Hospital was going on and continuing to refuse to make an economic offer"; and the mediator suspended negotiations at the end of the day. Hospital Associate Director Topham, after re- viewing his notes for this session, acknowledged that Hospi- tal spokesman Brown stated at this session: "Very serious thing we're looking down the barrel at. Can't discuss eco- nomics without clearing up other items." As noted. the Union filed an unfair labor practice charge on November 28, 1977, and an unfair labor practice complaint issued on January 5, 1978.'6 17. February 1, 1978 Union representative Shea testified that negotiations re- sumed on February I "after we had served a 0-day [strike] notice on the Hospital" (R. Exh. 29): the "mediator called us together"; the "Union requested that the Hospital make us a whole economic offer"; and Mr. Brown replied that he wanted-he would prefer if we would try to resolve some of the issues before us. The Hospital made no counterproposal on wages or eco- nomics. The Hospital, however, withdrew its proposal on "tuition assistance." The Hospital would therefore "keep the tuition assistance provision as it had in the prior con- tract." The parties also discussed. inter a/ia, "call to work."'7 18. March 22. 1978 Union Representative Shea testified that the parties next met on March 22. The Hospital presented a "document" (G.C. Exh. 14) which, in effect, "proposed to the Union the ' The Union also "was willing to accept a situation where we could change the hours of notice that would trigger payment of time-and-a-half." '' Negotiations broke off at this point. The Union continued to leaflet the Hospital. See R. Exh. 26. The Union did not request a resumption in nego- tiations during this period. Shea acknowledged "that plans were made to conduct a work stoppage at the Hospital." See R. Exh. 27 and 28. i? The Union notified the Hospital on February 3 that the one-day work stoppage scheduled for February 4 was changed to February 6. See R. Exhs. 31 and 32. Also see R. Exh. 37. Members of the unit struck on this date See R. Exh. 33. 855 DECISIONS OF NATIONAL LABOR RELATIONS BOARD same wage and economic benefits that it had granted to the nonunit employees ... " some six months earlier. This was, as Shea explained, "the first whole economic proposal ... in response to the Union's request for an economic offer." There was "no mention" in the Hospital's proposal "of some of the proposals that had been put forth by the Union." The Hospital made it clear to the Union . . . that those items not mentioned in G.C. Exh. 14 had been rejected by the Hospital. (Cf. G.C. Exh. 4 (Union proposal) and G.C. Exh. 14 (Hos- pital revised proposal)). The Hospital's proposals pertaining to wages and insur- ance premiums (G.C. Exh. 14) were to be effective follow- ing ratification of a contract. Hospital representative Top- ham was asked at the hearing, "did the Hospital give any reasons for not offering wage retroactivity?" Topham re- sponded: "Yes .... First, the Union had not agreed to extend the [prior] contract .... [That] leads to an adminis- trative dilemma when there's no document of the contract available for the Management to utilize. Secondly, there was no request for retroactivity. And, thirdly, we felt that it would have an adverse effect on future negotiations .... [It] was our feeling at the time that to grant retroactivity would not motivate the Union in future years to negotiate a con- tract on a timely basis." Shea recalled that hospital spokesman Brown stated at this session that "we were facing potentially a very long period of litigation"-referring to the pending unfair labor practice charges and "another case at the Hospital";"s that "he [Brown] had thought it was best that all other items got cleared up before any wage offer was made but the Hospital had reconsidered its position because it was so concerned that employees were suffering because of this situation"; and that one of the bases of making the proposal was that the . . .unit [employees] would be receiving through it ap- proximately the same increase that non-Union em- ployees had received last October I. Further, Brown made clear "that it was not a question of the Hospital's inability to [pay] .... He [Brown] said he was not raising inability to pay" as a reason for not granting retroactivity. Brown "indicated that the Hospital had no intention of including retroactivity in the contract." Shea stated to Brown "that the Union certainly had no intention of signing a contract that would leave the mem- bers our Union . . . getting the same raise as everybody else in the Hospital, only six months late." Shea recalled that "retroactivity" had been discussed "in the later fall negoti- ating sessions, or at least one of them" and "in the previous negotiating meeting on February I .... " During those earlier sessions, Shea had stated: "when there was an offer" or "if and when there was an offer from the Hospital on wages and benefits, it certainly better or should be retroac- tive." Shea finally apprised the Hospital on March 22 that 15 See South Shore Hospital, 229 NLRB 363 (1977), enfd in part, 97 LRRM 3004 (Ist Cir. 1978). The court sustained the Board's finding that the hospital had discharged an employee because of her "open and continuing Union organizing activities." "we wish to consider it [the Hospital's proposal] among the membership before giving a full response."'9 19. March 30, 1978 Union Representative Shea testified that at this March 30 meeting the Union "made a full counterproposal" to the "Hospital's proposal" of March 22. The Union proposed an across-the-board wage increase effective October 1., 1977, in the amount of 8-1/2 percent; a shift differential and adjust- ment in the minimum to maximum range in pay scale; the Hospital should pick up an increased amount of the family health insurance premium and dental insurance should be included in an employee paid plan; vacations should be increased; minimum time for payment of relief and higher classification should be increased; and the Union's "last po- sition" on leave of absence, call to work, and union repre- sentative access should be accepted. The Union "would forgo [its] other [prior] proposals"--the "rest should be dropped." Shea made clear that "we were not about to set- tle the contract without retroactivity .... "20 According to Shea, Hospital spokesman Brown re- sponded by expressing "his disappointment in the Union proposal" and asking "if we [the Union] honestly expected that the Hospital ever intended to give this bargaining unit more money than the rest of the house received .... " Brown referred to, inter alia, "restrictions the Hospital was under due to the system of setting Hospital rates in the State ... and how that would effectively prohibit them from . . . giving raises or benefit increases . . . to any greater extent than they had budgeted for last fall .... " However, Brown also stated that the Hospital "had budgeted last fall . . a wage increase and a benefit increase as they had offered it to us [the Union] and as had been given to the rest of the house." And, according to Hospital representative Topham, the hospital trustees had approved its budget about September 1977 which then included increases for both unit and non-unit employees-these budgeted in- creases would have, in effect, been authorized effective at the beginning of the fiscal year in October 1977. subject to bargaining insofar as they pertained to the unit employees. Hospital representative Topham acknowledged, "the bud- get that had been authorized by the board of trustees was also ... sufficient to cover an equivalent increase, had the Hospital chosen to grant it, to the unit employees as of October 1, 1977 .... " Shea, as he further testified, accused the Hospital of"not offering retroactivity" as "punishment for people being in the Union" because the "money" was "budgeted" and there was no "question of inability to pay." Brown responded that "it was not a punitive position." Further, as Shea re- called, we had a discussion on the question of retroactivity. He [Brown] said that it was the Union's decision last fall not to extend the contract. And that was one rea- '9 At this meeting, Shea discussed the subjects of unpaid leaves of absence, premium pay involving unscheduled calls to work and Union representative access. Both parties "offered proposals" and "compromises on some of the issues." However, no agreements were reached on these items. z Shea, however, recalled that during the ensuing negotiations he had offered a wage increase effective "later than October , 1977." See infra. 856 SOUTH SHORE HOSPITAL son why there was not a retroactive offer on the table. He also said that, because of a number of things that had gone on the length of bargaining. he specified. and other things that had gone on outside of the bar- gaining room--that there was no retroactive offer being made by the Hospital. There was discussion and both parties "stood" on their last offers. Another meeting was scheduled for April 3. 20. April 3, 1978 At this session the parties essentially reviewed and re- stated their positions. Union Representative Shea recalled, inter alia, that Hospital Spokesman Brown stated: it was the Union committee's decision not to extend the contract last fall, when the idea was broached by the Hospital; that the Union could very well have got- ten the same offer last fall if they simply had been agreeable to the proposals which the Hospital had on the table; and that given some of the things that had gone on-other things that had gone on it addition to the length of bargaining-the Hospital was not about to offer retroactivity in the position it found itself at this moment. Shea later "proposed" at this meeting that the Union "would accept the Hospital's wage and benefit offer . . . effective October 1, 1977, or alternatively, if the Hospital did not want to pay the money that way, that it would accept an offer of double the Hospital's proposal as of May I .... And, then, we proposed a second year of the contract with an 8-1/2 percent increase as of October 1, 1978, plus the benefit changes that we had previously mentioned in our last offer .... effective October 1, 1978 instead of Octo- ber 1, 1977." Brown indicated that the Hospital "had no intention of including retroactivity in the contract." Shea asserted that he hoped the Union's proposal "might move the negotiations out of the almost deadlock that they were in, that the offer had obviously failed .... " Shea wanted to discuss the "situation" with the membership." 21. April 18, 1978 The parties met again on April 18. Prior positions were restated. Brown was not present. Sibley Reppert, an attor- ney associated with counsel for the hospital, was present. Shea recalled that at this session, I [Shea] asked if there was any movement in the Hospi- tal's position. Mr. Reppert said no. I said I wanted to make sure that I understand exactly the Hospital's po- sition on retroactivity. So, I asked him why the Hospi- tal was not making an offer on retroactivity. Mr. Rep- pert said that because of the Union's refusal to extend the contract and things that had gone on since the con- tract had expired-but, he really didn't want to com- 21 Hospital representative Topham's notes for this session attribute to hos- pital spokesman Brown the following comment: Reviewed the history of relationship, strke notice, changing. etc. To sa now we're being punitive is a little one sided. ment on what he said. He was just here to see what could happen next." The parties "agreed that we were at an impasse over wages and benefits and Mr. Reppert announced that effective [April 24] that the Hospital would be implementing its last wage and benefit offer." There were no further negotiations. I credit the testimony of Union Representative Shea as detailed above. His testimony is substantiated in part by the testimony of Hospital Representative Topham. b the testi- mony of Union Representative William Perreault, and byv undisputed documentary evidence of record. Shea testified at length as to the 21 bargaining sessions and related mat- ters. His testimony withstood extended cross-examination. And, relying upon demeanor. he impressed me as a reliable. trustworthy, and credible witness. On the other hand, Hos- pital representative Topham gave testimony on cross-ex- amination which at times was incomplete. unclear, and eva- sive. Insofar as Topham's testimony differs with the testimony of Shea as recited and quoted above. I am per- suaded here, on this entire record. that Shea's detailed rec- ollection of the sequence of events is more complete. reli- able, and trustworthy.21 Discussion General Counsel contends that Respondent hospital vio- lated Section 8(a)(5) of the National Labor Relations Act by refusing to bargain in good faith with the Union with respect to wages and other economic benefits from about September 15. 1977 to about March 22, 1978. General Counsel asserts that "where negotiations stall, as they did here, because the parties cannot reach agreement on certain noneconomic matters and on certain proposals to reduce certain existing benefits or practices, the only way to avoid impasse may be through exploration of the Employer's po- sition on wages and economic matters" and, if in these circumstances the Union, as it did here, re- peatedly asks the Employer to turn to economic issues. but the Employer. as it did here, repeatedly refuses to talk about them until all the non-economic issues and the Employer's proposals have been settled favorable to the Employer .... the Employer has not fulfilled its statutory bargaining obli- gation. Further, General Counsel asserts that the Employ- er's conduct from March 22, 1978, during the last four bar- gaining sessions, "was a continuation of ... its earlier refusal to bargain in good faith .... " Respondent argues, inter alia, that General Counsel has failed to establish by a preponderance of the evidence that the Hospital violated Section 8(a)(5) of the Act. Respon- dent contends that the Hospital "never insisted upon agree- ment by the Union to Hospital proposals": that "by seeking to postpone discussion of wages and benefits until other issues had been resolved. the Hospital negotiated in good faith in accordance with the past practices of the parties 22 Reppert did not testify. 23 Counsel has filed a "stipulation to amended record. This document proposes certain corrections in the record. The proposed corrections are granted. Counsel has also filed "a joint motion to reopen the record to re- ceive an additional exhibit.'" G.( Exh I(p) I) Ihis motion is also granled 857 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and accepted negotiating techniques": that "the totality of the circumstances surrounding the negotiations manifests the Hospital's good faith"; that "both parties were engaged in hard bargaining and were jockeying for position . . .": and that the Hospital did not violate Section 8(a)(5) "by engaging in such hard bargaining." Section 8(a)(5) of the Act makes it an unfair labor prac- tice for an employer "to refuse to bargain collectively with the representative of his employees .... " Section 8(d) pro- vides that "to bargain collectively is the performance of the mutual obligation of the employer and the representative of' the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment .... " The pertinent legal principles have been restated many times by the Board and the Courts. Thus, in N.L.R.B. v. Patent Trader, Inc.. 415 F.2d 190, 197 198 (2d Cir. 1969), modified en bane. 426 F.2d 791 (2d Cir. 1970), the court restated these principles and sustained the Board's findings, as follows: [The] Company "entertained no sincere desire and made no genuine effort" to conclude an agreement with the Union. It is well-settled that the "performance of the duty to bargain requires more than a willingness to enter upon a sterile discussion of union-manage- ment differences." N.L.R.B v. American National In- surance, 343 U.S. 395, 402, 72 S.Ct. 824, 828, 96 L.Ed. 1027 (1952). And although "the obligation of the em- ployer to bargain in good faith does not require the yielding of positions fairly maintained," N.L.R.B. v. Herman Sausage Co., 275 F.2d 229, 231 (5th Cir. 1960), more is required than mere "surface bargaining" or "giving the Union a runaround while purporting to be meeting the Union for purposes of collective bar- gaining." N.L.R.B. v. Herman Sausage Co., supra. p. 232, quoting N.L.R.B. v. Athens Mfg. Co., 161 F.2d 8 (5th Cir. 1947). See also N.L.R.B. v. National Shoes, Inc., 208 F.2d 688. 691 (2d Cir. 1953); N.L.R.B. v. Fitzgerald Mills Corporation, 313 F.2d 260, 266 (2d Cir. 1963). Whether the Company bargained in good faith normally rests upon "a finding of motive or state of mind which can only be inferred from circumstantial evidence," N.L.R.B. v. Reed & Prince Mfg. Co., 205 F.2d 131, 139-140 (Ist Cir.), cert. denied 346 U.S. 887, 74 S.Ct. 139, 98 L.Ed. 391 (1953), and "It]he previous relations of the parties, antecedent events explaining behavior at the bargaining table, and the course of negotiations [which] constitute the raw facts for reaching such a determination." Local 833, UA W-A FL-CIO, etc. v. N.L.R.B., 112 U.S. App. D.C. 107, 300 F.2d 699, 706, cert. denied Kohler Co. v. Local 833 etc., 370 U.S. 911, 82 S.Ct. 1258, 8 L.Ed. 2d 405 (1962). The Court, in agreement with the Board, noted that, "[b]y postponing or removing from the area of bar- gaining-to the very end of negotiations most funda- mental terms and conditions of employment (wages, hours of work, overtime, severance pay. reporting pay. holidays, vacations, sick leave, welfare and pensions. etc.) [the Company] reduced the flexibility of collective bargaining, land] narrowed the range of possible com- promises" with the result of "... rigidly and unreason- ably fragmenting the negotiations .... ' See I anderhihlt Products. Inc. v. V.I..R.B, 297 F.2d 833 (2d ('ir. 1961) (Per Curiam). In The Adrian Daill Telegram, a Dtriision of Thompson ,Newspaper. Inc.. 214 NlRB 1103. 1110-1112 (1974), the Board similarly found that the employer violated this statu- tory obligation "by refusing to submit any specific eco- nomic counterproposal to the union despite repeated re- quests by the Union, as well as the Federal mediator. and. in addition, by refusing to bargain with respect to an_ eco- nomic matters until final agreement had been reached on all noneconomic issues .... " Likewise, in Federal-Mogul Corporation, 212 NLRB 950 (1974)., enfd. 524 F.2d 37 (6th Cir. 1975). the Board held that the employer's "refusal to submit or discuss or to permit any discussion o economic proposals in the contract negotiations and [its] requirement as a condition for any such discussion that the union agree to accept [its] terms on certain noneconomic matters, was a refusal to bargain in good faith .... " The Court, in agree- ment with the Board, noted that the union . . . had opened the negotiations by stating all of its economic demands except wages. Nonetheless, for a substantial time the union acquiesced in the companN's demand to settle noneconomic issues first. In the weeks immediately befbre the strike, however, the union made a wage proposal and unsuccessfully sought eco- nomic proposals from the company. Also see, Bartlett-(Collins Compantv, 230 NLRB 144. 173 175 (1977); Rotno Paper Products Corp., 220 NLRB 519. 525 (1975), enfd. 93 I.RRM 2336 (2nd. Cir. 1976). Of course, as the Supreme Court observed in N.L.R.B. v. American National Insurance Co., 343 U.S. 395. 410 (1952), ".. a statutory standard such as 'good faith' can have meaning only in the application to the particular facts of a particular case .... " On the credible evidence of record in this case, as de- tailed supra. I find and conclude that Respondent Hospital violated its statutory obligation to bargain in good faith with the Union by its repeated refusals during the course of some 18 bargaining sessions over an eight-month period to submit to the Union wage or economic counterproposals or to discuss with the Union wages or economic benefits. Re- spondent Hospital, during this extended period, persistently and adamantly refused to bargain in good faith with the Union over wages and economic benefits which had been proposed by the Union unless and until the Union agreed to reductions in certain existing employee benefits as pro- posed by the Hospital. Respondent Hospital. by its con- duct, was not dealing with the Union "in a serious attempt to resolve [their] differences and reach a common ground." N.L.R.B. v. Insurance Agents' International Union, A FI. CIO, 361 U.S. 477. 485, 486 (1960). Instead, as discussed below, the Hospital was "rigidly and unreasonably frag- menting the negotiations ... " and "giving the Union the runaround while purporting to be meeting with the Union for purposes of collective bargaining I.. R . v. Patent Trader, Inc., supra. Thus, by the first bargaining session on July 2(0. the Union had submitted to the Hospital a full proposed con- SOUTH SHORE HOSPITAL tract including wages and other economic benefits as well as noneconomic benefits. The Union, in turn. requested a full counterproposal from the hospital. At the second ses- sion on August 10, the hospital submitted its proposals. However, the hospital's proposals did not contain substan- tive provisions pertaining to wages and economic benefits as included in the Union's submission. The hospital's pro- posals provided in significant part for reductions in existing employee benefits. Hospital representative Topham "wanted to get resolution of these proposals prior to the introduction of [its] wage proposal." The Union, at this ear- ly bargaining session, generally agreed "to get the noneco- nomic items out of the way ... ": however, the Union also made clear that "it may well become necessary to mix non- economic items and economic items before resolution of the noneconomic items." No time limitation was established for this procedural arrangement. Thereafter, by the fifth session on September 16. the hos- pital had responded to the Union's initial proposals by. for the most part, rejecting the Union's proposals or setting them aside as "economic." The negotiations then-focused primarily on the hospital's proposals. The Union neverthe- less manifested its willingness to compromise on various of the Employer's proposals and offered counterproposals. Some limited agreement was reached. However, as UInion representative Shea recalled, the Union again requested "an entire economic proposal" from the hospital by the Septem- ber 16 session because "negotiations had bogged down with the Hospital insisting that . . . the Union give up certain existing benefits." The Union "felt that it was not possible for [it] to consider the proposals that the Hospital was mak- ing any further without seeing their whole economic offer." The Hospital refused to make such an economic offer or counterproposal. Nevertheless, as Shea further explained, the Union still continued to discuss the Hospital's proposals and possible compromises "to the reductions in benefits... requested by the Hospital." Subsequently, at the sixth session on September 21, the hospital again refused to make an economic proposal to the Union even though a federal mediator was present. About this same time, the hospital granted to its nonunion em- ployees a general wage increase ranging from 3 to 8.3 per- cent and absorbed an increase in insurance premium costs to be charged these employees. The Hospital notified the union employees that a letter which you received recently regarding an in- crease in the Hospital's contribution [for the insurance] coverage was only meant for employees not repre- sented by the Union. The Hospital is still negotiating with the Union as to your wages, hours and benefits which include [the insurance] contributions.... The collective-bargaining agreement applicable to the unit employees expired on September 30. Thereafter, at the ninth session on October 3, the Union "again asked the Hospital to make us a whole economic offer ... : we weren't getting anywhere without such an offer on the table . .; the nion could not consider an5 further compromises on the Hospital's demands .... " he Hospital again refused. The Union proposed dropping "all of its noneconomic proposals" in return for the Hospital dropping "most of the proposals in their August 10 pro- posal." he Hospital refused. Later, at the tenth session on October 4. the Union proposed that "we would be willing to) consider" the Hospital's proposed tuition assistance and leave of absence items "as part ot a mone oer." FIhe Hos- pital "didn't want to make a money offer then . At the twelfth session on October 20, the LUnion proposed that it would he willing to discuss a reduction in the call to work item "in the context of an overall economic offtter from the Hospital, in response to [the Union'sl economic propos- als." Hospital spokesman Brown made clear that he "will not be willing to negotiate economics before language is put to bed .... " Later. at the thirteenth session on November 2. Brown warned Shea: the longer the negotiations went on without agreement. then the more likelk it was that the Hospital would make proposals to change benefits in the contract There would be more proposals to reduce benefits. more than was already on the table. The parties broke off negotiations in November. he Union filed unfair labor practice charges. The initial com- plaint issued in this case and the matter was scheduled for hearing. Meanwhile, the mediator called the parties to- gether for their seventeenth session on February 1. The Union again requested a "whole economic offer." The Hos- pital again refused. However, at the eighteenth session on March 22, the Hospital offered to the Union the same wage and economic benefits which it had granted to the nonunion employees some six months earlier. See G.C. Exh. 14. This was, as Shea noted, the "first whole economic proposal ... in re- sponse to the Union's request f;r an economic offer." There was no mention in this proposal of some of the proposals which previously had been made bh the U:nion. The lospi- till made clear that those items not mentioned in G.C. Fxh. 14 "had been rejected." In addition, the Hospital refused to make its wage and economic proposals retroactive to Octo- her I. 1977. Hospital spokesman Brown apprised the Union representative that "the Hospital had no intention of in- cluding retroactivity in the contract." Brown, at the same time, noted that he was not claiming "inability to pay" as a reason for not granting retroactivity. And. Hospital repre- sentative Topham acknowledged that "the budget" which had been approved by the trustees some seven months ear- lier included wage and benefit increases for both unit and nonunit employees-"the budget that had been authorized .. was also ... sufficient to cover an equivalent increase had the Hospital chosen to grant it to the unit employees as of October I, 1977 . " Brown subsequently explained to Shea. "... the Union could very well have gotten the same offer last fall if they simply had been agreeable to the pro- posals which the Hospital had on the table .... " Union Representative Shea stated at the March 22 ses- sion. and during the course of the remaining three sessions on March 30. April 3 and 18, "that the I. nion certalinl had no intention of signing contractl Itit a ould leace the members of our Union . . . getting Ithe sle raises as evers- bod' else in the Hospital only six months late." Nes crthc- 859 DECISIONS OF NATIONAL LABOR RELATIONS BOARD less, during these sessions, Shea also made a full counter- proposal to the Hospital's March 22 offer. Shea proposed an alternative to retroactivity to October 1, 1977, with in- creased benefits. Brown, however, "had no intention of in- cluding retroactivity in the contract" and the Union's pro- posed alternative was unacceptable. I find and conclude on this record that from about Sep- tember 16, 1977, to about March 22. 1978, Respondent Hospital refused to bargain with the Union over wages and other economic benefits which were proposed by the Union unless and until the Union agreed to reductions in certain existing benefits as proposed by the Hospital. Respondent Hospital's conduct was incompatible with its obligation to bargain in good faith. Thereafter, commencing March 22. Respondent Hospital persisted in its refusal to bargain in good faith, effectively rejecting any attempt by the Union to "move the negotiations out of the most deadlock they were in .... " Respondent Hospital thereby violated Section 8(a)(5) and (1) of the Act. The issue remains, whether Respondent Hospital, by its conduct, also violated Section 8(a)(3) and () of the Act. General Counsel argues in support of this allegation that Respondent Hospital. by granting wage increases to nonunit employees while it was refusing to bargain in good faith with the Union with respect to wages and by thereafter refusing to grant retroactive wage increases to unit employees, un- lawfully withheld wage increases from unit employees from on or about September 26, 1977 to on or about April 24, 1978, in violation of Section 8(a)(3) and (1) of the Act.2' Respondent contends that the Hospital did not violate Sec- tion 8(a)(3) "by withholding a wage increase from bargain- ing unit employees." In Shell Oil Company, Incorporated and Hawaii Emplqv- ers' Council, 77 NLRB 1306, 1310 (1948), the Board stated in pertinent part: Absent an unlawful motive, an employer is privileged to give wage increases to his unorganized employees, at a time when his other employees are seeking to bargain collectively through a statutory representative. Like- wise, an employer is under no obligation under the Act to make such wage increases applicable to union mem- bers, in face of collective bargaining negotiations on their behalf involving much higher stakes ... [footnote omitted]. The Board found in Shell Oil that the employer had not refused to bargain in good faith and, further, had not dis- criminated against its employees by withholding certain wage increases. More recently, in B. F. Goodrich Company, 195 NLRB 914 (1972), the Board quoted from the Shell Oil rationale and concluded: The granting of a new profit-sharing benefits to unor- ganized employees but not to represented employees is not, standing alone, prohibited discrimination [foot- note omitted]. 2 The complaint, as amended, alleges this discriminatory withholding to be from on or about October 1. 1977, to on or about April 24. 1978. The Board noted that the employer's "unlawful refusal to bargain did not create any obligation automatically to grant the identical benefit to the represented employees A similar issue was also raised in Chevron Oil Company, Standard Oil ('ompanr' of Texas Division, 182 NLRB 445. 449 (1970). enforcement denied 442 F.2d 1067 (5th Cir. 1971). There, the Board found that the employer had failed to negotiate in good faith in violation of Section 8(a)(5) of the Act and, in addition, had violated Section 8(a)(3) of the Act by "withholding from the unit employees involved... wage increases and improved benefits that it granted to other employees." As the Board noted, the union, "follow- ing the impasse, had sought to have respondent put into effect retroactively for these employees, without contract. the wage-benefit increases it had earlier granted its unrepre- sented employees and offered the union. Respondent re- fused .... " Ihe Board stated: Were it not for the unfair labor practice setting in which the withholding action occurred, we would have no hesitancy in adopting the Trail Examiner's finding [dismissing the allegation.] It has long been an estab- lished Board principle that, in a context of good-faith bargaining, and absent other proof of unlawful motive. an employer is privileged to withhold from organized employees wage increases granted to unorganized em- ployees or to condition their grant upon final contract settlement [citations omitted]. The Board, in finding a Section 8(a)(3) violation in Chevron Oil at 450. reasoned: The union could either capitulate to respondent's bad- faith bargaining position, and thereby abdicate in large measure its statutory role as an employee representa- tive, or it could remain without any contract at all while the unit employees continued to suffer the loss of benefits being enjoyed by other employees and which would have been theirs also had they not voted in the union. Whichever path the union chose, it could only lead to undermining it in the eyes of employees as an effectual employee representative. As the respondent's withholding action was thus an integral part of its un- lawful course of conduct, it must also be viewed as repugnant to statutory policy, and therefore cannot be justified as conduct serving legitimate interests of re- spondent. The Fifth Circuit denied enforcement of the Board's order with respect to its bad faith bargaining and discriminatory withholding of wage findings. The court stated in pertinent part: We have determined that the Board's finding that the company's withholding action occurred within a bad faith bargaining context is not supported by substan- tial evidence on the record as a whole. It follows that the company was within permissible bounds in refrain- ing from granting the benefits to the union represented employees in the absence of agreement [citations omitted]. Applying these principles to the facts of this case, I find and conclude that Respondent Hospital's withholding of 860 SOUTH SHORE HOSPITAL the wage increases from the Union employees was in sub- stantial part discriminatorily motivated and, consequently, violative of Section 8(a)(3) and (I) of the Act. The Hospital, during the course of some 18 bargaining sessions, acting in bad faith, had refused to submit to the union wage and economic counterproposals and had refused to discuss with the union wages and economic benefits. However, at the eighteenth bargaining session, some eight months after bar- gaining had commenced, the Hospital offered to the Union the same wage and economic benefits which it had granted to the nonUnion employees six months earlier without re- troactivity. The Hospital, at the same time. persisted in its bad faith conduct by making clear to the Union that it would not grant retroactivity under any circumstances and by dismissing further counterproposals from the Union. Hospital spokesman Brown had warned Union Repre- sentative Shea during the thirteenth bargaining session on November 2, ... the longer negotiations went on without agreement then the more likely it was that the Hospital would make proposals to change the benefits of the contract . . there would be more proposals to reduce benefits, more than already was on the table. At the same time, the Hospital, by refusing to bargain in good faith, made it impossible for the Union, in fulfilling its role as statutory bargaining agent for the unit employees, to conclude such an agreement. Thereafter, when the Hospital finally offered to the Union the economic benefits previ- ously granted to the nonunion employees without retroac- tivity, Brown made clear to the union representative that the Hospital was not claiming any "financial inability to grant retroactivity"; the Hospital had budgeted such in- creases months earlier for both Union and nonunion em- ployees; and "the Union could very well have gotten the same offer last fall if they simply had been agreeable to the proposals which the Hospital had on the table .. " Brown also cited the Union's failure to extend the contract "when the idea was broached by the Hospital"; the length of the bargaining; and "other things that had gone on in addition to the length of bargaining ... ." I am persuaded here that Respondent Hospital, in refus- ing to grant the retroactive wage increases to the union employees, was motivated in substantial part by a desire to punish the unit employees because they had chosen Union representation. As the Board stated in Chevron Oil, supra, at 471, "the wage benefit withholding in the instant case ... was used by Respondent in the service of designs inimical to the process of collective bargaining. The foreseeable and clearly intended effect of the withholding was to confront the Union with a Hobson's choice: The Union could either capitulate to Respondent's bad faith bargaining position, and thereby abdicate in large measure its statutory role as an employee representative, or it could remain without any contract at all while the unit employees continued to suffer the loss of benefits being enjoyed by other employees and which would have been theirs had they not voted in the Union. Whichever path the Union chose, it could only lead to undermining it in the eyes of the employees as an effec- tual employee representative .... " In sum, here, the Employer's withholding action was an integral part of its unlawful course of conduct. It cannot be justified as serving any legitimate interests of the Employer. This discriminatory conduct plainly had a natural and fore- seeable effect of chilling employee desires for Union repre- sentation. Such conduct was intended to punish the unit employees because they had selected Union representation. Respondent Hospital therefore violated Section 8(a)(3) and (1) of the Act. CONCI.USIONS OF LAW I. Respondent Hospital is an employer engaged in com- merce within the meaning of the Act. 2. Charging Party Union is a labor organization within the meaning of the Act. 3. Respondent Hospital has violated Section 8(a)(5) and (1) of the Act from about September 16, 1977, to about March 22, 1978, by refusing to bargain with Charging Party Union as the exclusive bargaining agent of its employees in the following appropriate unit over wages and other eco- nomic benefits which were proposed by the Union unless and until the Union agreed to reductions in certain other existing benefits as proposed by the Respondent, and, in addition, from about March 22, 1978, by refusing to bar- gain in good faith with the Union with respect to wages. The appropriate bargaining unit is: all full-time, permanent part-time and part-time em- ployees of Respondent at its Weymouth facility em- ployed as x-ray technologists, nuclear technologists, laboratory technicians, laboratory technologists, respi- ratory therapists, respiratory therapy technicians. physical therapy assistants, operating room techni- cians, ekg technicians, orthopedic technicians and pharmacy technicians, but excluding all licensed practi- cal nurses, registered nurses, professional employees, clerical employees, all students, temporary and casual employees, managerial employees, guards, and super- visors as defined in Section 2(11) of the Act. 4. Respondent Hospital violated Section 8(a)(3) and (1) of the Act by discriminatorily withholding from the above unit employees from about October 1, 1977, to about April 24, 1978. the wage increases which were granted nonunit employees, in order to discourage their membership in Charging Party Union. 5. The unfair labor practices found above affect com- merce within the meaning of Section 2(6) and (7) of the Act. REMEDY In order to remedy the unfair labor practices found herein and to effectuate the purposes of the Act, Respon- dent Hospital will be directed to cease and desist from en- gaging in the conduct found unlawful; to cease and desist from in any other manner interfering with employee Sec- tion 7 rights; and to post the attached notice. Further, Re- spondent Hospital will be directed, upon request, to bar- gain collectively and in good faith with Charging Party Union as the exclusive bargaining agent of its employees in the unit described above and if an understanding is reached 861 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to embody such understanding in a signed agreement. In addition, Respondent Hospital will be directed to make whole the unit employees for any monetary losses they may have suffered as a result of the Employer's discriminatory withholding of the wage increases. as found herein, from on or about October 1, 1977, to on or about April 24, 1978, with interest thereon to be computed in the manner pre- scribed in F. W. Woolworth Company. 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977). See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Cf. Chevron Oil Co., supra, 182 NLRB at 450 451.72 ORDER26 The Respondent, South Shore Hospital, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Failing or refusing upon request to bargain collec- tively and in good faith with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment with Mass. Hospital Workers Union, Local 880, S.E.I.U., AFL-CIO, as the exclusive bargaining agent of the employees in the unit described below, by refusing to bargain with the Union over wages and other economic benefits which were proposed by the Union unless and until the Union agreed to reductions in certain existing benefits as proposed by the Hospital and by refusing to bargain in good faith with the Union with respect to wages. The ap- propriate bargaining unit is: all full-time, permanent part-time and part-time em- ployees of Respondent at its Weymouth facility em- ployed as x-ray technologists, nuclear technologists, laboratory technicians, laboratory technologists, respi- ratory therapists, respiratory therapy technicians, physical therapy assistants, operating room techni- cians, ekg technicians, orthopedic technicians and 2" Counsel for Respondent argues that the Board is without the authority to grant "a retroactive order like that issued in Chevron ..." citing, inter alga. H. K Porter Co.. Inc., Dissron Division-Danville Works v. N. L. R. B.. 397 U.S. 99 (1970). Here, unlike in H. K Porter, the Board is not compelling agree- ment to substantive terms of a contract. but is instead remedying the Em- ployer's discriminatory conduct, the discriminatory withholding of a wage increase, in violation of Sec. 8(a)3) of the Act. X1 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. pharmacy technicians, but excluding all licensed prac- tical nurses, registered nurses, professional employees, clerical employees, all students, temporary and casual employees, managerial employees, guards, and super- visors as defined in Section 2(1 1) of the Act: (b) Discouraging membership in said Union, or in any other labor organization, by discriminatorily withholding from the above unit employees from on or about October 1, 1977, to on or about April 24, 1978. wage increases which were granted to its nonunit employees: (c) From in any other manner interfering with, restrain- ing or coercing employees in the exercise of their Section 7 rights. 2. Take the following affirmative action necessary to ef- fectuate the purposes of the Act: (a) Upon request bargain collectively and in good faith with said Union as the exclusive bargaining agent of its employees in the above unit with respect to rates of pay, wages, hours of work, and other terms and conditions of employment and if an understanding is reached embody such understanding in a signed agreement; (b) Make whole the employees in the unit found appro- priate for any monetary losses they may have suffered as a result of the hospital's discriminatory withholding of the wage increases granted to its nonunit employees as pro- vided in this Decision; (c) Preserve and make available to the Board, upon re- quest, all payroll records and reports, and all other records necessary and useful to determine the amount of backpay due under this Decision; (d) Post at its facility in Weymouth, Massachusetts, cop- ies of the attached notice marked "Appendix."2 7 Copies of said notice, on forms provided by the Regional Director for Region , after being duly signed by Respondent's repre- sentative, shall be posted by Respondent immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter in conspicuous places including all places where notices to employees are customarily posted. Reason- able steps shall be taken by Respondent to insure that said notices are not altered, defaced or covered by any other material: (e) Notify the Regional Director for Region I, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 27 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 862