City Hospital of East Liverpool

DECISIONS OF NATIONAL LABOR RELATIONS BOARD The City Hospital of East Liverpool, Ohio and Ohio Nurses Association. Case 8-CA-10690 January 5, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On August 11, 1977, Administrative Law Judge Henry L. Jalette issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions with a supporting brief, Charging Party filed cross- exceptions with a supporting brief, and General Counsel filed exceptions with a supporting brief. Re- spondent also filed a brief in response to the Charg- ing Party's cross-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, only to the extent consistent herewith. Respondent has excepted to the Administrative Law Judge's finding that it violated Section 8(a)(5) and (1) of the Act by unilaterally discontinuing the use of head nurses (a unit position) on the first and third shifts in obstetrics and on the Sunday day shift in the operating room, without giving the Union ade- quate notice of such changes so as to provide the Union with an opportunity to bargain. We find merit to these exceptions. As set forth more fully in the Administrative Law Judge's Decision, Respondent has recognized the Union as the exclusive collective-bargaining repre- sentative of its employees in a unit of registered nurses for a number of years. Respondent and the Union have been parties to a number of successive agreements covering those employees. The most re- cent of the agreements. the one applicable herein, is effective from June 1, 1976, to May 31, 1979. Prior to July 1976,1 Respondent had slotted a unit position of head nurse in many but not all of its various depart- ments. Included in the departmental shifts having a head nurse position were the first and third shifts in obstetrics and the Sunday day shift in the operating room. In addition, Respondent had a practice of de- signating the senior registered nurse on these shifts as All dates hereafter refer to 1976. 2 The regular head nurse position on these two shifts had been vacant for some time. 3 As will be explained more fully, infra, the Union filed a grievance over the proposed change in the emergency room. Respondent resolved that 234 NLRB No. 3 acting head nurse if the regular head nurse was not on duty. The acting head nurse would receive head nurse pay, which was 12 percent higher than the reg- ular pay. On July 2, Respondent notified nurses who had substituted as acting head nurses on the first and third shifts in obstetrics that it intended to discontin- ue the position of head nurse on those shifts and that it welcomed discussion on the proposed discontin- uance. 2 On July 13, Respondent notified these same nurses that the proposed discontinuance of the head nurse positions would be effective on July 25. In ear- ly July, Respondent informed nurses who had substi- tuted as acting head nurses on the Sunday day shift in the operating room that it was considering elimi- nating that head nurse position on July 25. At ap- proximately the same time, Respondent also notified nurses in the emergency room that it was considering eliminating the head nurse position on that shift.3 Subsequently on July 25, Respondent, in fact, elimi- nated the head nurse in obstetrics and the Sunday operating room day shift. The Administrative Law Judge found, and the record contains no evidence to the contrary, that Respondent's changes were based solely on economic considerations. The record reveals that shortly after Respondent made its initial announcements, officers of the Local became aware of all of the above-mentioned pro- posed changes. Obstetrics nurse Nannette Brereton testified that shortly after she received notification of the contemplated changes in obstetrics, she consid- ered filing a grievance and obtained a grievance form from the vice president of the Local, David Persohm. When she obtained the grievance form, Brereton ex- plained to Persohm that she was considering filing a grievance over the proposed discontinuance of the head nurse position in obstetrics. 4 With regard to the Sunday operating room day shift, Nurse Vera Dura- ney testified that in early July she spoke with Local President Shirley Merkle about filing a grievance over Respondent's elimination of the head nurse po- sition on that shift. Finally, Merkle testified that both she and Persohm, who were assigned to the emergen- cy room shift, received notification in early July that Respondent was considering eliminating the head nurse position in the emergency room. Merkle ac- knowledged that she and Persohm also became aware at that time that similar changes were being proposed in obstetrics and the Sunday day shift in the operating room. The Union filed a grievance over the changes in the emergency room; however, it did grievance by agreeing to the Union's position and retaining the head nurse position in the emergency room. The complaint did not allege the proposed change in the emergency room as an unfair labor practice. I For reasons not fully explained, Brereton never in fact filed the griev- ance. 58 CITY HOSPITAL OF EAST LIVERPOOL not file a grievance over the changes in obstetrics or in the operating room. In fact, the Union did not protest or request bargaining regarding those changes until September 10, when it first sent Re- spondent a letter questioning the July 25 changes. 5 Based on the above, we find that the Union had notice of Respondent's proposed changes in obstet- rics and the operating room 3 weeks before those changes became effective.6 Respondent contends that by failing to promptly object or request bargaining about the proposed changes in obstetrics and the operating room, the Union waived its rights to protest these changes. In support of this contention, Respondent points out that when the Union filed a grievance and opposed the elimination of the head nurse position in the emergency room, it engaged in good-faith collective bargaining and ultimately settled the dispute by not eliminating that head nurse position. We find merit to Respondent's contentions. Established Board precedent requires a union that has notice of an em- ployer's change in a term or condition of employ- ment to timely request bargaining in order to pre- serve its right to bargain on that subject.7 In Ameri- can Buslines, supra, 164 NLRB at 1055, the Board stated: [T]he statute does not compel him [the Employer] to seek out his employees or request their partici- pation in negotiations for purposes of collective bargaining .... To put the employer in default here the employees must at least have signified to respondent their desire to negotiate. [N.L.R.B. v. Columbian Enameling & Stamping Co., 306 U.S. 292, 297 (1939).] In citing the instant case, it is clear that the Union had notice of Respondent's proposed discontinuance of the head nurse position in obstetrics and the oper- ating room over 3 weeks before the discontinuances were effectuated. As indicated above, the record re- veals that shortly after the proposed changes were announced, officers of the Local had knowledge of the proposed changes and even discussed the filing of grievances with affected members of the unit.8 We find, therefore, that the Union, by failing to request bargaining as to the proposed changes until after they were implemented, in effect acquiesced in such changes. In these circumstances we conclude that Respondent did not violate Section 8(a)(5) and (1).9 Accordingly, we shall dismiss the complaint in its entirety. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. 5 As indicated above. the Union became aware of Respondent's pro- posed changes in the emergency room at approximately the same time that it became aware of Respondent's proposed changes in obstetrics and the operating room. We find no merit in the Union's contention that it would have been futile to file a grievance over the proposed changes in obstetrics and the operating room because Respondent had contended that a similar grievance filed over changes in the emergency room had been untimely. Although Respondent initially contended that the emergency room griev- ance had been untimely, the record reveals that shortly thereafter Respon- dent accepted and found merit to the Union's grievance. Thus, Respon- dent's disposition of the emergency room grievance does not evidence that the filing of a similar grievance in obstetrics or the operating room would have been futile. 6 The Union is the certified collective-bargaining representative of the unit of registered nurses. In actual practice, however, Local officers act on behalf of the Union in processing grievances and implementing the contract. Accordingly, we impute the Local officers' knowledge of the proposed changes to the Union. United BroherhoodofCarpenters andJoiners ofAmeri- ca, East Pennsylvania Industrial District, AFL-CIO (Ridge Homes), 224 NLRB 1144, 1147 (1976); United Steel Workers of America (Inter-Royal Corp.), 223 NLRB 1184, 1190 (1976); and International Union of District 50, Allied & Technical Workers (Dow Chemical Company-Rocky Flats Division), 187 NLRB 968 (1971). 7 Globe-Union, Inc., 222 NLRB 1081 (1976); Holiday Inn Central, 181 NLRB 997 (1970); and American Buslines, Inc., 164 NLRB 1055 (1967). 8 The Administrative Law Judge's citation of Insulating Fabricators, Inc., Southern Division, 144 NLRB 1325, 1332 (1963), for the proposition that the Union did not waive its rights to protest Respondent's proposed changes is inapposite. In Insulating Fabricators, the respondent announced retroactive wage increases to the union as afait acconpli, and the Board found that it would have been a futile gesture for the union to have attempted to bargain over such a matter. In the instant case, Respondent announced its proposed changes over 3 weeks before they were to become effective and explicitly requested discussion on the proposed changes. 9 Since we have found that the Union had ample notice of the proposed changes in obstetncs and in the operating room and failed to timely inter- pose an objection or request to bargain, we find it unnecessary to pass on Respondent's contention that it had no duty to bargain about those changes. DECISION STATEMENT OF THE CASE HENRY L. JALETTE, Administrative Law Judge: This pro- ceeding involves an allegation that The City Hospital Asso- ciation of East Liverpool, Ohio (herein called Respondent) violated Section 8(aXl1) and (5) of the Act by its unilateral discontinuance of the practice of assigning head nurses to certain shifts of work. The proceeding was initiated by a charge filed by Ohio Nurses Association (herein called the Union) on December 23, 1976,1 pursuant to which com- plaint issued on February 25, 1977. On May 10, 1977, hear- ing was held in East Liverpool, Ohio. Upon the entire record, including my observation of the witnesses, and after consideration of the briefs filed by General Counsel and Respondent, I hereby make the fol- lowing: ' Unless otherwise indicated. all dates hereinafter are in 1976. 59 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT I. THE FACTS Respondent is an Ohio corporation with its principal place of business located in East Liverpool, Ohio, where it is engaged in the operation of a nonprofit hospital.2 Since 1968, Respondent has recognized the Union as the exclu- sive collective-bargaining representative of its employees in a unit of registered nurses and has been party with the Union to a series of collective-bargaining agreements, the most recent of which had effective dates of June 1, 1976, to May 31, 1979. For a number of years prior to July 1976, on the 3 p.m. to 11:15 p.m. and the 11:15 p.m. to 7:15 a.m. shifts in the obstetrics unit, there has been a head nurse on duty at all times when the regular head nurse was absent. The most senior registered nurse on the shift would be designated as acting head nurse and receive head nurse's pay which was 12 percent above the pay for general duty nurses. On July 2, Respondent notified the nurses who had sub- stituted as head nurses of the discontinuance of the use of head nurses on those shifts. The notification, by inadver- tence, failed to state when this action would be effective, and, on July 13, Respondent notified the nurses that it would be effective July 25. A similar practice to that in the obstetrics unit existed in the operating room unit on the day shift on Sundays, and nurse Vera Duraney testified that in early July she was told by the operating room supervisor that effective July 25, there would be no acting head nurse on that shift. Head nurses are covered by the collective-bargaining agreement and Respondent gave no notice to the Union of the foregoing actions. II. ANALYSIS AND CONCLUSIONS The gravamen of the complaint is that by discontinuing the use of head nurses on the shifts in question without notice to, or consultation with, the Union, Respondent vio- lated Section 8(a)(1) and (5) of the Act. There is no conten- tion that Respondent was motivated by other than eco- nomic considerations and the uncontradicted testimony of Director of Nursing Sandra Mooney indicates that the changes were made because of a restructuring of the ob- stetrics department and her judgment that a head nurse was not needed on the shifts in question. The initial ques- tion presented then is whether or not Respondent had a duty to bargain about the changes. Respondent asserts that it was under no obligation to bargain about the changes on the theory that it was merely part of ordinary day-to-day operating procedure. Respon- dent's assertion is taken from N.L.R.B. v. Dixie Ohio Ex- press Company, 409 F.2d 10 (C.A. 6, 1969) wherein certain procedural changes effected without notice to, or bargain- ing with, the bargaining representative, and resulting in the 2 Jurisdiction is not in issue. Respondent admits that it meets the Board's standard for the assertion ofj urisdiction over nonprofit hospitals. 3 The contract here in effect contained a management rights clause, but Respondent makes no contention in its brief that it acted pursuant to that clause or that the clause permitted it to take the action it did. If such argument were made, I would reject it. I do not construe Respondent's right of "direction of the working force" and "the determination of method and termination of 15 employees, were found by the court to be merely a change in ordinary day-to-day operating proce- dures about which there was no duty to bargain. As I understand the court's decision, the elimination of unit positions for reasons of efficiency and economy is a management prerogative not subject to the duty to bar- gain.3 I am, however, bound by Board decisions, and the Board's decision in Dixie Ohio Express Company, 167 NLRB 573 (1967), reflects a contrary view. The Board there held that the employer had a duty to bargain about changes, including the discontinuance of one job classifica- tion. The rationale there articulated is, in my judgment, applicable to the instant case. It seems too clear to require mention that the elimination of a head nurse on the shifts here in question was directly related to "wages, hours and other terms and conditions of employment" as defined in Section 8(aX)(5) and (d) of the Act. Apart from the fact that the decision caused general duty nurses the loss of a 12- percent differential, there is the matter of the performance of the duties normally performed by a head nurse. This is not to say that a head nurse was necessary at the times in question; rather, it is to say that the decision was one about which the Respondent was required to notify the Union and afford it an opportunity to present arguments against the changes or alternative solutions. It is clear that Respondent did not notify the Union of the changes. Respondent notified the employees affected by the change and it contends that inasmuch as the officers of the local chapter of the Union had knowledge of the contemplated changes before July 25, the date they were to go into effect, and the Union did nothing until September 10, when it wrote a letter to Respondent protesting the changes, the Union has waived its right to bargain. I do not agree. A waiver is not lightly inferred. To the contrary, the Board has consistently held that a waiver of a bargaining right must be clear and unequivocal. Insulating Fabricators, Inc., Southern Division, 144 NLRB 1325, 1332 (1963). Each case depends on its own facts, and the only basis for infer- ring a waiver in this case is that the notice of the changes was given to employees on July 2 and no protest was made by the Union until September 10, although a finding is warranted that shortly after July 2, officers of the local chapter of the Union became aware of the decision.4 In my judgment, absent some unusual circumstances not here present, a delay of such duration is insufficient to infer a waiver. Apart from that, the record indicates that no nurse affected by the change in the obstetrics unit and the operat- ing room filed a grievance, and when a grievance was filed over a similar change in the emergency room Respondent contended it was untimely. Under the circumstances, the Union's failure to file a grievance cannot be construed as a waiver, and the delay in protesting can clearly be seen as attributable to the processing of the grievance over the emergency room change. processes," as provided in that clause, to constitute a waiver by the Union to be consulted about the elimination of unit positions. 4 Nurse Brereton obtained a grievance form from the vice president of the local unit shortly after July 2 and told him why she wanted it, and Shirley Merkle, president of the local unit, was herself affected by a similar change in her department. 60 CITY HOSPITAL OF EAST LIVERPOOL Respondent asserts that it had a right to insist upon channeling collective bargaining within the provisions of the contract and that such insistence may not be held to be a refusal to bargain. I am not certain I understand the significance of this assertion. Respondent is not charged with a refusal to bargain by reason of its insistence upon channeling collective bargaining in accordance with griev- ance provisions of the contract. Respondent is charged with making changes in working conditions without notice to, and consultation with, the Union, and it is well settled that an employer who makes changes in working condi- tions without notice to, or consultation with, the represen- tative of its employees violates Section 8(aX)) and (5) of the Act. N.LR.B. v. Katz, et al., 369 U.S. 736 (1962). More- over, the fact that there is a contract with grievance and arbitration provisions does not preclude the Board from enjoining unfair labor practice conduct. N.L.R.B. v. Strong, 393 U.S. 357 (1969). In Collyer Insulated Wire, 192 NLRB 837 (1971), the Board adopted a policy of deferring to the grievance arbitration machinery provided for in the con- tract of the parties, but that policy is inapplicable where, as here, the Respondent is unwilling to waive the time limita- tions of the grievance procedure and go to arbitration. The Detroit Edison Company, 206 NLRB 898 (1973). On the basis of the foregoing analysis, I conclude and find that Respondent violated Section 8(a)(5) and (1) of the Act by discontinuing the use of head nurses on the 3 p.m. to 11:15 p.m. and the 11:15 p.m. to 7:15 a.m. shifts in the obstetrics unit and on the day shift on Sundays in the operating room unit without notice to, or consultation with, the Union. As to the change in the operating room unit, Mooney testified that no decision to make such a change was made and that if nurse Duraney was not paid for serving as acting head nurse after July 25 it was due to payroll error. I am constrained to give no credence to such testimony. The uncontradicted testimony of Duraney was that she was told of a change by Supervisor Helen Conway and after July 25 she did not receive head nurse's pay when she worked on Sunday as had been the practice. Moreover, in its letter of September 10, the Union adverted to the change in the operating room and when Respondent re- plied on September 28 it did not deny that a change oc- curred, rather, it adverted to the change affecting Duraney and stated its action was not in violation of the contract. Accordingly, my finding of a violation includes the operat- ing room change as well as the obstetrics unit change. III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section 1, above, occurring in connection with its operations de- ' General Counsel urges that the interest rate of 6 percent per annum provided for in Isis Plumbing be increased to 9 percent. This is a matter of policy for determination by the Board. scribed therein, have a close, intimate, and substantial rela- tionship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. IV. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(aXI) and (5) of the Act, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action de- signed to effectuate the policies of the Act. In particular, I shall recommend that Respondent restore the status quo ante by resuming the use of a head nurse or acting head nurse on the 3 p.m. to 11:15 p.m. and 1:15 p.m. to 7:15 a.m. shifts in the obstetrics department and the position of head nurse or acting head nurse on the 7 a.m. to 3:30 p.m. shift in the operating room on Sundays. I shall further recommend that Respondent make whole those nurses who have suffered any loss of earnings by reason of Respondent's unlawful conduct by payment to them of the 12 percent differential in pay they would have received when employed as acting head nurse together with interest at the rate of 6 percent per annum. Isis Plumbing & Heating Co., 138 NLRB 716.5 CONCLUSIONS OF LAW I. The City Hospital of East Liverpool, Ohio is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Ohio Nurses Association is a labor organization within the meaning of Section 2(5) of the Act. 3. All registered nurses, excluding supervisors as de- fined in the Act, constitute a unit appropriate for the pur- poses of collective bargaining within the meaning of Sec- tion 9(b) of the Act. 4. Ohio Nurses Association is the exclusive representa- tive of the employees of Respondent in the above-de- scribed unit within the meaning of Section 9(a) of the Act. 5. By discontinuing the use of head nurses or acting head nurses on the 3 p.m. to 11:15 p.m. and 11:15 p.m. to 7:15 a.m. shifts in the obstetrics department and on the 7 a.m. to 3:30 p.m. shift in the operating room on Sundays, without notice to, or consultation with, the Ohio Nurses Association, Respondent engaged in, and is engaging in, unfair labor practices within the meaning of Sections 8(aX5) and (I) and 2(6) and (7) of the Act. [Recommended Order omitted from publication.] 61