Hospital & Health Care Workes Districe 1199C

DECISIONS MO NATIONAL LABOR RELATIONS BOARD District 1199C, National Union of Hospital and Health Care Employees, RWDSU/AFL-CIO and Episcopal Hospital. Case 4 CB 3345 March 20, 1979 DECISION AND ORDER BY CHAIRMAN FANNING ANt) MEMBI RS JENKINS ANt) FRUISD)AI. On December 8, 1978, Administrative Law Judge Claude R. Wolfe issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the Charging Party filed a brief in opposition to Respondent's exceptions. 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.' and conclusions of the Administrative Law Judge and to adopt his recommended Order. 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 and hereby or- ders that the Respondent, District 1199C, National Union of Hospital and Health Care Employees, RWDSU/AFL-CIO, its officers, agents. and repre- sentatives, shall take the action set frth in the said recommended Order. I 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 Producs. In. 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d C'ir. 1951). We have carefully examined the record and find n basis flr reversing his findings. DECISION SIAriMENr OF lItE CASE Ci.Aumr I R. WOI.FE, Administrative Law Judge: This case was heard before me at Philadelphia, Pennsylvania. on July 12 and 13. 1978, pursuant to a charge filed on January 4, 1978, by the Episcopal Hospital and served on January 6. 1978, and a complaint issued on February 24, 1978. The complaint alleges that District 1199C, National Union of Hospital and Health Care Employees. RWDSU/AFI, ('10, herein referred to as the Union Respondent. refused to bargain with the Episcopal Hospital in violation of Sec- tion 8(b)(3) of the Act by refusing to execute a side letter agreed upon between the parties during negotiations on a new collective-bargaining agreement which was reached on July 1, 1977. Respondent denies the commission of any un- 'air labor practices and affirmatively pleads that, although it did refuse and continues to refuse to execute the side letter, the side letter was not part of the agreement reached between the parties on July 1. 1977. Upon consideration of the entire record, the demeanor of the witnesses as they testified befbre me. and the post-trial briefs filed by the parties, I make the following: FINDING(S ANt)D CN( ItSIONS I. JRISi)I(ION The complaint alleges, the answer admits, and I find, that the Episcopal Hospital is a Pennsylvania corporation en- gaged in providing medical and hospital care of patients at its location in Philadelphia, Pennsylvania. and that during the year preceding issuance of the complaint the Episcopal Hospital had gross revenues in excess of $500,000 and pur- chased goods valued in excess of $50,000 directly from points outside the ommonwealth of Pennsylvania. The Episcopal Hospital is, and has been at all times material herein, an employer engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act. 1l. lit L.ABO(R OR(;ANIZAHl(ON Respondent is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of' the Act. 111. tlE UNFAIR LABOR PRAI"I('E A. Finding.s of Fact For several years prior to the events discussed herein, the hospital and the Union were party to collective-bargaining agreements covering an appropriate unit of the hospital's employees.' Their latest written agreement covered the period from July I. 1975, to June 30, 1977. This agreement included the fol- lowing side letter: YIPIS(O(PAI OSPAL SII)E I.TFrER I. If Federal, State or local government controls are established which regulate Hospital costs or rates and The appropriate unit is: All full-time and regular part-time service employees including Nurses Aides. Aides, Advanced Aides. Advanced Assistants, Nursing Assis- tants, Ward Clerks. Hospital Men. Nursing Messengers, all Medical Clerks. OB Technicians OR Technicians, Purchasing Storeroom Clerks. Mailroom Clerks. Chauffeurs. Orderlies, Laboratory Assistants. Techni- cians' Aides. Medical Clerks. (Community Health Workers. Storekeep- ers. Housekeeping Aides. Housekeeping Lead Aides, Seamstresses, .aaundry Utility Men, Laundry Washman, Laundry Pressers, Laundry Processors, Dietary Assistant and Dietary Storeroom Clerk. and exclud- ing superssors. management level and confidential employees as de- fined in the Act, part-time employees who regularly work less than twenty (20) hours per week, and temporary employees. 241 NLRB No. 35 270 DISTRICT 1199(, NATIONAL UNION OF HOSPITAL ANI) HEALTH CARE EMPLOYEES such controls impair the ability of the Hospital to meet its contractual obligations concerning wages and fringe benefits, either party may terminate this Agreement by giving the other party the appropriate statutory written notice of ninety (90) days. If such impairment is cor- rected within the ninety-da period, such termination notice will be void and the Agreement will not termi- nate. 2. The Hospital will furnish Union job descriptions of unit classifications within six (6) months and is will- ing to meet and consider any suggestions Union might have. 3. The Hospital's present policy is that it may re- quire a doctor's certificate confirming that absenteeism was caused by illness or injury, specifying the nature of the illness or injury, the required treatment and the period of time that such illness or injury caused the employees to be absent in the following circumstances: (a) Chronic absenteeism. (b) Pattern absenteeism such pattern might in- volve absences at the beginning or end of the work- week, day before or after holidays or paydays or vacations, or any other observable pattern demon- strated over a reasonable period of time. (c) Absences of several days' duration. (d) Absences occurring under unusual circum- stances. 4. The Hospital will meet with Union representa- tives to discuss Union suggestions concerning Day Care or Patient Care. If employees attend such em- ployees will be "off the clock" or such meetings will be outside of their normal working hours. NAII()NAl. UNION OF IIOSPIIAI AND HEAI.IH (ARE EM- PLOYIES, A DIVISION OF RWiDS1, AFI.-CIO AND ItS AF- FIIIATE, I)ISTRI(T 1199( EPISCOPAl HOSPITAI. 2 It is clear that the parties had treated the side letter signed by both the hospital and the Union as part of the existing contract and it was in full force and effect through- out the contract period. The first negotiation meeting between the parties in 1977 was held on April 13.' Another meeting was held on April 29. but the next meeting was not held until June 21 because of an intervening fact finding hearing on June 9 regarding matters under negotiation. The next and last negotiation meeting between the parties commenced on June 30 and ended at 6 a.m. on July 1. The Union's written demands presented either at or shortly before the negotiation meeting of April 13 contain no reference to the side letter in issue in this proceeding, nor was any evidence adduced that the Union made any other written demands specifically relating to that side letter. The Union's chief spokesperson at the negotiating meetings, ex- cept the last one when Union President Henry Nicholas was present, was Union Executive Vice President Donna Signatures of representatives of the parties are omitted from this deci- sion. All dates referred to herein occurred in 1977 unless otherwise specifically indicated. Ford. The Union's negotiating committee also included a Mr. Roy Jacobs and the shop committee, none of whom were called to testily' in this proceeding. The Employer's negotiating committee consisted of Jacob Hart. the hospi- tal's attorney and chief negotiator, and John Lloyd. Wil- liam Chambley. Sam Steinberg. and Fred Pluck. One of the critical factors in the resolution of the issue before me is a determination as to what was said by Ford and Hart, if anything, with regard to the side letter during the April 13 negotiations, or at any subsequent negotiations. Ms. Ford claims that at the opening of the April 13 meet- ing she informed the hospital committee that the written demands were the Union's proposals for the negotiations, and that the side letter in dispute in this case was null and void. She states that there was no initial response but that, as she went through the proposals and reached the Union's proposal to make changes with reference to sick leave, Ja- cob Hart said that there was already language in the side letter referring to the sick leave. Whereupon she told him that the Union was voiding the side letter and was modify- ing the portion that they wanted to keep. In this connec- tion. the Union's written proposal with regard to the sick leave question to w'hich Ford refers relates to article XXI. sick leave. section 21.5 of the collective-bargaining agree- ment. and reads: "Change last sentence to read: I'he tlospi- tal may request proof of illness hereunder including a doc- tor's certificate for absence of more than 2 days." In the margin of Ford's copy of the Union's proposals, to the left of the requested change in section 21.5, she noted the word "drop." Immediately at the end of the proposed change she further noted "Keep side letter." Ford claims that the par- ties talked about wage controls on April 13 and that she told Hart that in the event that there were future govern- mental wage controls the separability clause of the contract would cover that contingency. This conversation testified to by Ford clearly refers to item 3 in the existing side letter. The Union's written demands also include a request to delete the word "exclusive" from article X. Seniority, sec- tion 10.8, Promotions--Subsection (a).' The hospital would not agree to delete the word "exclusive." Ford asked Hart if he would give the Union a letter stating that the Union had bargained for the deletion of the word but that the hospital had not agreed. Hart agreed to do so. According to Ford, this agreement between her and Hart happened at the third negotiation meeting and during the second negotiation meeting the hospital and the Union had agreed to a side letter in which the sick leave provision previously discussed would be included. It is her contention that the parties agreed at the third meeting that there would be a side letter in which the two aforementioned provisions would be set forth. Ford explains that her notes on her copies of the Union's demands next to the proposal to change section 21.5 of the contract meant that the Union had dropped its written demand and that the language of the old side letter as it pertained to sick leave would be incorporated in a new 4 The subsection referred to contains a concluding sentence which reads: "The Hospital has the exclusive right to determine qualifications of employ- ees for promotional purposes." I conclude that the t nion initially requested that the Employer delete the word "exclusive" from this sentence, and that is what ord is referring to in her testimiony 271 DECISIONS OF NATIONAL LABOR RELATIONS BOARD side letter together with the statement by Hart with refer- ence to the deletion of the word "exclusive." Jacob Hart agrees that after the hospital had refused to delete the word "exclusive" from article X, section 10.8, of the contract he did agree, at Ford's request, to give her a letter confirming that the Union had wanted to delete "ex- clusive," and the hospital had rejected this request. Hart did not write this letter as he promised, and says that he forgot it. He asserts that the only time the existing side letter was mentioned was at the first meeting on April 13 when they were discussing the Union's requested changes in section 21.5 with regard to sick leave, and that he then said that he did not see why the Union needed the change in the contract with respect to doctor's notes because the subject was already covered in the side letter. He avers that Ford made no response to this one way or another, that there was no other reference made to the existing side letter through- out the entire course of the negotiations, and that the Union's proposal with respect to doctor's notes was with- drawn on April 29 or June 21 by Ms. Ford without any explanation. Hart specifically states that the question of governmental controls on wages was never discussed, and that there was no statement by Ms. Ford that the Union would not accept a wage control or governmental control side letter and that if government controls were imposed the separability clause of the contract would govern. Hospital Director of Employee Relations William Cham- bley and Hospital Vice President John Lloyd, who were present at every negotiation meeting, corroborate Hart's version of his conversations with Ms. Ford about the exist- ing side letter. I think it is significant that no member of the Union's bargaining team other than Ms. Ford appeared on the witness stand to corroborate her testimony, and I draw the inference that had they been called they would have testified adversely to her version. I consider Ms. Ford's ex- planation of her notes on the Union's demand with respect to the sick leave language to be self-serving and contrived, and I do not find it credible. Furthermore, I detected noth- ing in the testimony or demeanor of Hart, Chambley, and Lloyd, all of whom testified contrary to Ms. Ford's version of the discussions relating to the side letter here at issue, to indicate that they were either dissembling or had, by prear- rangement, concocted a version favorable to the Hospital. I recognize that Ms. Ford was engaged in several negotia- tions at the same time that she was negotiating with the Episcopal Hospital and may, therefore, have been mistaken as to what was said in these specific negotiations as a result of confusion arising from the fact that she was attending several meetings with several hospitals, but on the basis of the record, and my observations of the testimonial demea- nor of Ms. Ford and the Hospital's witnesses, I credit Jacob Hart's version as the more believable and find that Ford did not tell the Company that the Union considered the old side letter to be null and void, did not discuss any of the provisions of that side letter other than the one relating to the requested contract change in article XXI, section 21.5, or secure any agreement that there would be a side letter containing two provisions relating to sick leave and the se- niority clause. I also find it highly unlikely that if Respon- dent was adamantly opposed to a continuation of the exist- ing side letter it would not have included a specific written demand, as opposed to a mere comment by Ford that the Union considered it null and void, that the side letter be expressly deleted from any future agreement. I note that many provisions in the expiring contract were included in the new contract with no demand made to change them. I am convinced that this is exactly the same thing that hap- pened to the existing side letter. There was no request to change it, other than the brief colloquy testified to by Jacob Hart in connection with the request to change article XXI, section 21.5, with respect to doctor's certificates. Inasmuch as I have credited Hart's version, I conclude that there was no further conversation by the Union during negotiations with respect to the existing side letter. This suggests to me that the Union had acquiesced in the hospital's position, as set forth by Hart with respect to the change on sick leave, and made no further protest about the side letter. I am persuaded that the Union did not in fact reject the side letter as it existed because the Union propounded no re- quested changes or deletions therefrom, or any complete severance of that side letter from the contract, or any aban- donment of that side letter as a condition of a new agree- ment. At the end of the negotiations on July 1, Jacob Hart wrote out a handwritten document detailing the changes in the collective-bargaining agreement that his negotiation notes reflected the parties had agreed to. He gave this to Union President Nicholas. At the end of the document, suc- ceeded only by the effective dates of the contract, Hart wrote the words "all other conditions to remain the same." A day or two after the negotiations had ended, Union Ne- gotiator Roy Jacobs' telephoned him and asked him to make a neat copy of the settlement reached. Referring again to his negotiation notes, Hart caused a typewritten document to be made which he forwarded to Jacobs. In drafting the typewritten document, Hart expanded on the brief notes in the handwritten sheet he had previously given to Nicholas and composed the later document in sentences and paragraphs in most cases. Additionally, the typewritten document contains a paragraph pertaining to "Arbitration Relating to Funds" which is not referred to in the handwrit- ten document previously given to the Union. At the top of the typewritten document the beginning paragraph reads: Subject to ratification by the 1199C membership, the following items have been agreed upon between Epis- copal Hospital and the 1199C bargaining committee as the basis for a new 1977-79 labor agreement. The concluding item in the handwritten document is writ- ten in capital letters and reads "All Other Terms and Con- ditions of 1975-1977 Contract Shall Remain Unchanged." There is no difference in substance, other than the arbitra- tion relating to funds matter, between the two documents of any particular consequence. As Respondent acknowledges, the Union members there- after ratified Hart's typewritten summary, after the Union first changed the heading to read "Ratification Meeting, July 5, 1977." Subsequent to this ratification vote, Ms. Ford Roy Jacobs did not testify in this proceeding. e Respondent's assertion in its brief that this summary of agreement pre- pared by Hart was sent to the Union on or about July 5 would appear to be sufficiently accurate for the purpose of this decision although the exact date of the transmission was not made clear. It obviously was received prior to ratification on July 5. 272 DISTRICT 1199C, NATIONAL UNION OF HOSPITAL AND HEALTH CARE EMPLOYEES called Hart and requested a draft copy of the contract. Hart told her it was being proofread. Ford then went on vacation and did not return until August 16. Hart sent the new collective-bargaining agreement draft, along with the same side letter that was in the previous contract, to the Union on August 10. 7 Union President Nicholas then gave the material submitted by the Company and the handwritten summary he had been given by Hart on July I to union organizer Barbara Cable with the in- struction that she should check the collective-bargaining agreement and make sure that everything on the handwrit- ten sheet was in it. After reading it, she returned it to Nicholas with the advice that everything was in the com- pleted contract except the notation in Hart's summary that the hospital would give the Union a side letter stating that the Union had bargained for the demand relating to senior- ity but this demand had been rejected by the hospital. Nicholas then directed Union Secretary-Treasurer Nora Kessenich to return the contract with the information that the Union had checked it, it was all right, and the hospital should sign it. She did so, including the side letter.8 The contract and side letter were forwarded to the hospital by Hart on August 15. They were then signed by the hospital and were back in the union offices when Ford returned from vacation. They had not at that point been signed by the Union. Ford reviewed the contract and reported to Nicholas, about August 20 or 21, that the side letter that was with the contract was not the side letter that the parties had agreed upon. Nicholas told her to call the hospital and to try to get the problem resolved. Ford claims that she called Director of Employee Relations Chambley about August 22, told him the side letter was not the one agreed upon, and received the reply that Chambley would check with Stanley Elwell, hospital administrator, and get back to her. He did not. She called him again and was advised that the hospital would wait until Hart returned from vacation. Chambley first testified that he does not recall these tele- phone calls referred to by Ms. Ford, and then stated that he never spoke with her between August 15 and September 19 about the side letter in question. Ford appeared to have the better recollection of the phone calls, and the Union's phone records show that Chambley attempted to call her on August 23 and 26. 1 conclude that Chambley's attempted calls were in response to the first call that Ford made to him on or about August 22. Furthermore, Hart believes that he had a message, when he returned from vacation on September 6, to the effect that somebody from the hospital had called him. Hart The letter is directed to Ms. Ford and reads, in pertinent part: Enclosed please find an original and two copies of the new Collective Bargaining Agreement between Episcopal Hospital and District 1199C. As soon as you have satisfied yourself that this agreement encom- passes all of the changes negotiated between the parties, I would appre- ciate your having all three copies signed and returned to me. I shall then get the signatures of Episcopal Hospital on them, and return one com- pleted cop)y to you for your files. If there are any problems concerning the agreement please call me at your convenience. I Kessenich's letter, dated August 12, reads: Enclosed are three copies of the Episcopal Hospital contract. The draft is satisfactory to the union. We request that management affix signatures first. Please return all three copies after signature and we will then sign them and return one copy to you. credibly testified that Chambley told him, on his return from vacation, that the Union would not execute the side letter. I conclude that Chambley is incorrect and that Ms. Ford did call him twice and received the answers that she relates. Neither do I credit Chambley's testimony that he did not call Hart until he received the signed contract from the Union and noticed that the side letter previously signed by the hospital was not attached thereto. By letter of September 19, received by the hospital on September 20, the Union returned an executed copy of the agreement without the side letter attached.9 The side letter had been deleted at Nicholas' instruction when the contract was forwarded by the Respondent to the Union's National President Leon Davis for execution. I credit Hart and Ms. Ford that neither had any commu- nication with their respective opposite parties after the Union delivered the signed contract without the executed side letter attached. B. Discussion and Conclusions The side letter in question was clearly one of the constitu- ent parts of the collective-bargaining agreement between the hospital and the Union which expired June 30, 1977. That the side letter was not bound with the basic collective- bargaining agreement for general distribution to employees does not alter its character as part of the agreement be- tween the parties which the Union concedes was abided by through June 30, 1977. I have found that the Union did not request that this side letter be deleted from the new agree- ment, and that it did not advise the hospital that it consid- ered that the side letter was no longer in effect. Hart's sum- mary of the agreed upon changes in the contract, which he gave to Union President Nicholas on the morning of July 1, was accepted by the Union without comment or protest even though his summary bore language at its conclusion reading "All other conditions to remain the same." I am of the opinion that the Union had no argument with Hart's summary. This lack of disagreement by the Union is evi- denced by its request that Hart submit a neater copy of his handwritten notes, and the further fact that the Union uti- lized Hart's notes as its record of what had been agreed on when it reviewed the typed copies of the contract submitted to it by the hospital for execution. Furthermore, the type- written copy of the summary, which Hart gave to the Union bore the concluding statement that "All Other Terms and Conditions of 1975-1977 Contract Shall Remain Unchanged." The side letter clearly contained terms and conditions of the 1975- 1977 contract and is in the nature of a supplement thereto. This concluding language of Hart was never challenged, and the Union submitted this very document for ratification, after first changing the heading to read "Ratification Meeting, July 5, 1977." This comports with the beginning paragraph of Hart's typewritten sum- mary which the Union submitted to ratification. That para- graph reads "Subject to ratification by the 1199C member- ship, the following items have been agreed upon between 9 The letter is signed by Nora Kessenich, Secretary-Treasurer of the Union and reads: Enclosed please find one fully executed copy of the collective bargain- ing agreement between District 1199C and Episcopal Hospital. 273 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Episcopal Hospital and the 1199C bargaining committee as the basis for a new 1977-79 labor agreement." In my view, the Union's actions of accepting Hart's summaries without question. submitting the typewritten one to ratification, ratifying the typewritten summary by a vote of its member- ship, and then utilizing the original summary to verify the contents of the eventual typed agreement establishes that the Union assented to Hart's summary of changes, includ- ing the concluding proviso that these were all the changes in the existing collective-bargaining agreement, of which the side letter was an integral part. I do not believe that there was any misunderstanding between the parties as to what was to be included in the final collective-bargaining agreement as a result of the parties negotiated understand- ing.'0 In my view, a final and binding agreement was reached between the parties as Hart's memoranda detailed, and the Union's subsequent ratification of Hart's typewrit- ten memorandum confirms the fact of agreement reached. That the Union may have had afterthoughts about allowing the side letter to stand is no basis upon which to question the binding nature of the agreement reached, which made no changes in the side letter. When the Union, by its officer, Nora Kessenich, returned the contracts to the hospital for signature, along with the message that the draft was satisfactory to the Union, the hospital was totally justified in relying on that representa- tion and concluding that there were no outstanding ques- tions regarding what had been agreed to." I have taken note that Jacob Hart had not, at the time of the hearing, furnished the letter to the Union with respect to the bargaining on the removal of the word "exclusive" from article X, section 10.8 of the contract, and I conclude that, although the failure of Hart to submit such a letter may be a failure to comply with that much of the agree- ment between the parties, this does not effect the basic fact that there was an agreement reached. When the Union refused to sign the side letter, which I have found to have continued in an existence without change, it breached its statutory duty to sign on request collective-bargaining agreements reached between the par- t I am convinced that the hospital contemplated the continuation of the side letter from the outset. This conclusion is supported by Hart's advice to Ford on April 13 that the Union's requested changes in sec. 21.5, which were later dropped by Ford. were already covered in the side letter. This reference put the Union on notice that the hospital considered the side letter to be a continuing part of the collective-bargaining agreement. There was no ambi- guity in the hospital's position on the side letter, or any other ambiguity as to the matters being negotiated, which could have misled the Union. If in fact the Union had some misunderstanding about what had been agreed upon, and I find it did not, such misunderstanding was of its own construction and not caused by any word at all of the hospital. The Union is clearly bound by its acts detailed herein manifesting assent to the agreement memorialized and submitted to the Union by Hart, which is clear on its face and warrants no contrary understanding. In short, both parties are bound by the terms of the memorandum submitted by Hart and ratified, a clear act of acceptance, by the Union membership, and said terms plainly spell out a continuation of all portions of the existing agreement not specifically changed. Inasmuch as the side letter was part of the existing agreement. and was not specifically deleted, it continued as part of the new agreement reached on July I, 1977. 1" Whatever Kessenich's authonty may be with regard to negotiations, when she submitted the contracts with covering letter to the hospital for signature she was acting, at the very least, as an express agent of the Union for the purpose of transmitting the documents and, as far as the hospital was concerned, she had apparent authority to so act on behalf of the Union. The Union never advised the hospital to the contrary. ties which have been reduced to writing. This is in violation of Section 8(b)(3) of the Act.' 2 IV. THE REMEDY Having found that Respondent has engaged in an unfair labor practice, I shall recommend that it be ordered to cease and desist therefrom and take certain affirmative ac- tion in order to effectuate the purposes of the Act. In addition to the customary notice posting, I shall rec- ommend that Respondent be ordered, upon request by the Episcopal Hospital, to execute the side letter submitted to it, with the remainder of the draft agreement, by the hospi- tal on August 10, 1977. CONCLtUSIONS OF LAW 1. Episcopal Hospital is an employer within the meaning of Section 2(2) of the Act, and is engaged in commerce and business activities which affect commerce within the mean- ing of Section 2(6) and (7) of the Act. 2. District 1199C, International Union of Hospital and Health Care Employees, RWDSU/AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time service employees of Episcopal Hospital including Nurses Aides, Aides, Ad- vanced Aides, Advanced Assistants, Nurses Assistants, Ward Clerks, Hospital Men, Nursing Messengers, all Medi- cal Clerks, OB Technicians, OR Technicians, Purchasing Storeroom Clerks, Mailroom Clerks, Chauffeurs, Orderlies, Laboratory Assistants, Technicians' Aides, Medical Clerks, Community Health Workers, Storekeepers, Housekeeping Aides, Housekeeping Assistants, Housekeeping Lead Assis- tants, Housekeeping Lead Aides, Seamstresses, Laundry Utility Men, Laundry Washmen, Laundry Pressers, Laun- dry Processors, Dietary Assistant and Dietary Storeroom Clerk, but excluding supervisors, management level, and confidential employees as defined in the Act, part-time em- ployees who regularly work less than twenty (20) hours per week and temporary employees, constitutes a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act, as amended. 4. At all times material herein, the Respondent Union has been and is the exclusive representative of the hospital's employees within the unit herein found appropriate for the purposes of collective bargaining. 5. By failing and refusing to execute the agreed upon side letter submitted for its signature by the hospital on August 10, 1977, Respondent has refused to bargain collec- tively with the Episcopal Hospital within the meaning of Section 8(b)(3) and Section 2(6) and (7) of the Act, as amended. Upon the foregoing findings of fact, conclusions of law, and the entire record herein considered as a whole, and pursuant to Section 10(c) of the Act, I make the following recommended: 2 H. J. Heinz. Conany v. N.LR.B., 311 U.S. 514 (1941); and see Sec. 8(d) of the Act. 274 DISTRICT 1199C, NATIONAL UNION OF HOSPITAL AND HEALTH ('ARE EMPl.OYEES ORDER" The Respondent, District 1199C. National Union of Hos- pital and Health Care Employees, RWDSU/AFL CIO, Philadelphia. Pennsylvania. its officers, agents, and repre- sentatives, shall: 1. Cease and desist from refusing to bargain collectively with Episcopal Hospital. on behalf of workers within the unit herein found appropriate for the purposes of collective bargaining, by refusing to sign the agreed side letter sub- mitted for signature by the Episcopal Hospital on August 10, 1977, or from engaging in any like or related conduct in derogation of its statutory duty to bargain. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) If requested by the Episcopal Hospital, or its desig- nated representatives, execute the draft side letter sub- mitted to Respondent by the Episcopal Hospital on August 10, 1977, for signature by Respondent's representative. (b) Post at its business offices and meeting halls copies of the attached notice marked "Appendix.l Copies of said notice, on forms provided by the Regional Director for Re- gion 4, after being duly signed by an official representative of Respondent, shall be posted by Respondent immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members 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. (c) Furnish to the Regional Director for Region 4 signed copies of the attached notice for posting, the Episcopal Hospital willing, at its office or hospital in places where notices to employees are customarily posted. Copies of said notice, to be furnished by the Regional Director for Region 4, shall, after being duly signed by Respondent as indicated. 13 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 he deemed waived for all purposes. '4 In the event that this Order is enforced b 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." be forthwith returned to the Regional Director for disposi- tion by him. (d) Notify the Regional Director for Region 4. in writ- ing, within 20 days from the date of this Order. what steps Respondent has taken to comply herewith. APPENDIX NolicE To EPI()YI ES ANDI) MIsBHIRS PostEl ) BY ORDER ()OF lit NATIONA. LABOR REI.AIIONS BOARD An Agency of the United States Government WI uwil . NO1 refuse to bargain collectively with Episcopal Hospital. as the exclusive representative of their employees within the unit described below, by refusing to sign the agreed upon side letter submitted to our representative for signature on August 10, 1977. WE WHIL. NOT engage in any like or related conduct in derogation of our statutory duty to bargain. WE. wil.t., if requested by Episcopal Hospital, ex- ecute the side letter the Episcopal Hospital submitted to us for signature by our representative on August 10, 1977. The appropriate unit for purposes of collective bargaining is: All full-time and regular part-time service employees of Episcopal Hospital including Nurses Aides, Aides, Advanced Aides. Advanced Assistants, Nurses Assistants, Ward Clerks. Hospital Men, Nursing Messengers, all Medical Clerks, OB Techni- cians. OR Technicians. Purchasing Storeroom Clerks, Mailroom Clerks, Chauffeurs. Orderlies. Laboratory Assistants, Technicians' Aides. Medical Clerks. Community Health Workers, Storekeepers. Housekeeping Aides, Housekeeping Assistants. Housekeeping Lead Assistants. Housekeeping Lead Aides, Seamstresses. Laundry Utility Men, Laundry Washmen. Laundry Pressers. Laundry Processors, Dietary Assistant and Dietary Storeroom Clerk, but excluding supervisors, management level, and confi- dential employees as defined in the Act. part-time employees who regularly work less than twenty (20) hours per week, and temporary employees. DISTRICT 1199C, NATIONAI UNION OF HOSPITAL AN[D HFAI lt CARE EMPILOYEES. RWDSUL/AFL CIO 275