South Shore Hospital

SOUTH SHORE HOSPITAL I South Shore Hospital and The Health Care Division, Local 285, Service Employees International Union, AFL-CIO. Case -CA-15845 May 14, 1981 DECISION AND ORDER On September 30, 1980, Administrative Law Judge Almira A. Stevenson issued the attached De- cision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed limited cross-exceptions. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge and to adopt her recommended Order. 2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, South Shore Hospital, Weymouth Massachusetts, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, modified as follows: 1. Substitute the following for paragraph 2(d): "(d) Rescind the changes unilaterally made in wages, benefits, and working conditions of employ- ees in the unit on March 26, 1979, to which the Union objects and upon its request, and make whole the unit employees for any losses thus in- curred with respect to overtime, call-in-work pay, vacations, health insurance coverage during certain unpaid leaves of absence, and shift differentials." 2. Substitute the attached notice for that of the Administrative Law Judge. I Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- vinces 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 her find- ings. 2 The General Counsel urges an additional remedial provision based on "unilaterally changed working conditions which have resulted in mone- tary losses by unit employees . . . e.g., overtime, call-to-work pay, vaca- tions, health insurance coverage during certain unpaid leaves of absence, and shift differential." Since the Administrative Law Judge found those changes unlawful, we agree that a make-whole remedy is appropriate The recommended Order and notice are amplified accordingly. 256 NLRB No. 1 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage membership in The Health Care Division, Local 285, Service Employees International Union, AFL-CIO, or any other labor organization, by withholding wage increases or otherwise discriminating against employees in regard to hire or tenure of employment or any other term or condition of employment. WE WILL NOT unilaterally change wages, benefits, or other terms or conditions of em- ployment, or otherwise fail or refuse to bar- gain collectively in good faith with The Health Care Division, Local 285, Service Em- ployees International Union, AFL-CIO, as the exclusive representative of our employees in the appropriate unit. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exer- cise of the rights guaranteed them under Sec- tion 7 of the National Labor Relations Act, as amended. WE WILL make whole employees in the ap- propriate unit for any monetary losses they may have suffered as a result of discriminatory withholding of wage increases granted to non- unit employees, with interest. WE WILL, upon request, bargain collectively in good faith with the Union as the exclusive bargaining representative of our employees in the appropriate unit with respect to rates of pay, wages, hours of work, and other terms and conditions of employment, and embody any understanding reached in a signed agree- ment. WE WILL rescind the changes unilaterally made in wages, benefits, and working condi- tions of employees in the unit on March 26, 1979, to which the Union objects and upon its request, and make whole the unit employees for any losses thus incurred with respect to overtime, call-in-work pay, vacations, health insurance coverage during certain unpaid leaves of absence, and shift differentials. SOUTH SHORE HOSPITAL 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DECISION STATEMENT OF THE CASE ALMIRA ABBOT STEVENSON, Administrative Law Judge: A hearing was held in this proceeding in Boston, Massachusetts, July 7 and 8, 1980. The original charge, filed by The Health Care Division, Local 285, Service Employees International Union, AFL-CIO,' was served on the Respondent March 29, 1979, and the amended charge was served February 2, 1980. The complaint was issued January 14, 1980, and amended at the hearing. The Respondent duly filed answers to the complaint and the amended complaint. The issues are whether or not the Respondent violated Section 8(a)(5) and (1) of the National Labor Relations Act by refusing to bargain in good faith concerning wages, hours, and other terms and conditions of employ- ment since on or about September 28, 1978, and by uni- laterally changing policies governing wages, benefits, and working conditions of employees in the unit repre- sented by the Union on or about March 16 and 26, 1979; and whether or not the Respondent violated Section 8(a)(3) and (1) of the Act by withholding from employ- ees in the unit represented by the Union wage increases granted to other employees from October , 1978, until March 12, 1979.2 For the reasons given below, I con- clude that the Respondent violated the Act as alleged. Upon the entire record, and after due consideration of the briefs filed by the Respondent 3 and the General Counsel I make the following: FINDINGS OF FACT AND CONCIUSIONS OF LAW I. UNFAIR LABOR PRACTICES A. Facts4 1. Background The Respondent operates a hospital in Weymouth, Massachusetts, where it employs approximately 1,200 persons. About 100 of these employees are included in a unit of technical employees which the Union has repre- sented since April 1 9 7 4.5 These employees were covered The name of the Union has been changed to reflect the merger of Mass. Hospital Workers Union, Local 880. Service Employees Interna- tional Union, AFL-CIO, and Local 285, Service Employees International Union, AFL-CIO. 2 No issue was raised as to jurisdiction or labor-organization status. Based on the allegations of the complaint and the admissions of the answer. I conclude that the Respondent is an employer engaged in com- merce and meets the Board's jurisdictional standards, and that the Union is a labor organization. 3 The Respondent's motion to amend transcript is granted in the ab- sence of objection. 4 The facts are based entirely on the testimony of Gerald M. Shea, business manager of the Union. stipulations of the parties, and documen- tary evidence. The Respondent called no witnesses. 5 The complaint alleges, the answer admits, and I find that since April 4, 1974, the Union has been the exclusive representative of an appropriate unit of all full-time, permanent part-time, and part-time employees of the Respondent at its Weymouth facility employed as X-ray technologists, nuclear technologists, laboratory technicians. laboratory technologists, respiratory therapists, respiratory therapy technicians, physical therapy assistants, operating room technicians, EKG technicians, orthopedic tech- nicians and pharmacy technicians. but excluding all licensed practical nurses, registered nurses, professional employees, clerical employees, all by successive -year collective-bargaining agreements from May 27, 1974, until September 30, 1977, when the last contract between the parties expired. Bargaining ses- sions for a new agreement to succeed the one which ex- pired on September 30, 1977, were held at various times between July 1977 and April 1978 when negotiations were broken off and the Respondent implemented the terms of its final offer on wages, health insurance premi- ums, and shift differential, effective April 24, 1978. The Union filed charges based on those negotiations, and, on September 29, 1979, the National Labor Rela- tions Board issued a Decision, 245 NLRB 84, concluding in pertinent part that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to bargain with the Union from about September 16, 1977, to about March 22, 1978, over wages and other economic benefits which were proposed by the Union unless and until the Union agreed to reductions in certain other existing benefits as prosposed by the Respondent (pay rate when called to work at unscheduled time, payment of health insurance premiums during leaves of absence, and union repre- sentatives' access to the Respondent's premises), and, in addition, refusing to bargain in good faith with the Union with respect to wages from about March 22, 1978; the Board also found that the Respondent violated Sec- tion 8(a)(3) and (1) of the Act by discriminatorily with- holding from the unit employees from about October 1, 1977, to about April 24, 1978, the wage increases which it granted to nonunit employees in order to discourage their membership in the Union. 6 At the time those negotiations broke off in April 1978, the major areas of disagreement between the parties were (1) whether or not wage increases and other eco- nomic improvements would be made retroactive to Oc- tober 1, 1977; and (2) the Respondent's proposed reduc- tions in benefits won by the Union in previous agree- ments, (a) pay rates for employees called to work at an otherwise unscheduled time, which the Respondent stated it wished to reduce to the level paid to nonunit employees; (b) the Respondent's payment of health insur- ance premiums during unpaid leaves of absence for per- sonal illness and maternity leave which the Respondent stated was for the purpose of "clarifying contract lan- guage"; and (c) a proposal to restrict access to the hospi- tal by the union representatives for the stated reason that the right granted under the previous contract to visit with employees in the hospital cafeteria had been abused by the Union.7 students, temporary and casual employees, managerial employees, guards and supervisors as defined in Sec. 2(11) of the Act. Until February 21, 1980, when International Union of Operating Engineers, Local 877, AFL CIO, was certified as representative of a unit of maintenance em- ployees, no employees other than those in the technical unit were repre- sented. 6 On September 18, 1980, the United States Court of Appeals for the First Circuit enforced the Board's Order in 245 NLRB 848 ' With respect to pay for unscheduled call-in work, the previous con- tract provided for double-time pay, the Respondent had proposed one- and-a-half time pay and then only if the employee completed his or her regular shift at straight-time pay. With respect to payment of medical and life insurance premiums of employees on unpaid leaves of absence, the previous contract provided payment for 120 days; the Respondent pro- Continued SOUTH SHORE HOSPITAL 3 2. The 1978-79 negotiations a. Preliminary In a letter dated June 29, 1978, Union Representative Shea requested Respondent to meet "at the earliest con- venient time to discuss wage and benefit improvements effective October 1, 1978" (the Respondent traditionally made wage and benefit changes on October 1, the begin- ning of its fiscal year) and undertaking to present the Union's proposals at the meeting. On July 17 the Re- spondent's attorney, Michael R. Brown, replied that he would be agreeable to a meeting. Shea received Brown's letter on July 18 and called Brown's office; Brown failed to return his call so Shea wrote a letter the same day suggesting a number of dates for a meeting beginning with July 20. Brown responded that no meeting could be held before August 29 because of vacation plans and sug- gested that date. In a phone call Shea made to Brown, Shea urged an earlier meeting but agreed to the date be- cause Brown said it was not possible to meet earlier, and asked Brown to be prepared to bargain seriously and to make a wage offer since negotiations were so late getting under way. Brown responded that although he had not completed his research on the point, "he was not con- vinced under the law that the hospital was required to bargain at all, given the circumstances [that] negotiations had broken off, and the subsequent litigation." The parties met on August 29, 1978, and Union Repre- sentative Shea opened the meeting by asking, since the Respondent had raised the issue, whether it was prepared to bargain to a contract; Brown replied that the Re- spondent's representatives were present and if the Union's proposals were not on the table when they re- turned after a 5-minute caucus, the session would be over. The Union then presented a written list of pro- posed improvements in wages and benefits, explaining its intent was to carry forward all terms and conditions agreed to during the previous negotiations except for the matters specifically included in its written proposals which the Union briefly reviewed. Brown said the hospi- tal would evaluate the Union's proposals and respond September 21. Although Shea asked to meet sooner, Brown replied it was not possible. Shea asked if the Union could count on receiving counterproposals at that time; Brown responded that the hospital would have "its responses" ready on September 21. The next meeting was held September 21, 1978. Shea opened the meeting by asking for the hospital's counter- proposals. In response, Brown stated the hospital's posi- tion that it was willing to carry forward all provisions of the prior contract which neither party had proposed changing during the 1977-78 negotiations; that it would insist on adhering to all items agreed to during those ne- gotiations; that it would discuss only those items which were still on the table when those negotiations broke off. Brown added he would not negotiate about any new posed 30 days; the Union counterproposed 45 days. With respect to access to hospital premises, the old contract gave union representatives the right to meet with employees in the hospital cafeteria; the Respotnd- ent proposed access only to meet with management; the Union counter- proposed access to some designated area for meeting with employees such as a conference room. items, that the hospital did not want to put aside the re- sults of the previous negotiations, and was unwilling to start all over again with new proposals. Brown said the hospital was under no legal obligation "to start a fresh negotiation. That in fact were the union to insist on pur- suing the proposals presently on the table, the hospital would file a charge before the labor board because it was the hospital's position that the union had no right to insist on starting negotiations afresh." At that time Brown presented the hospital's counterproposals in writ- ing which reflected his above statement and took the same position it had taken before on the matters upon which no agreement had been reached when the previ- ous negotiations broke off, and proposed an effective date of the end of the first payroll period following rati- fication; it did not include wage or benefit proposals. Shea asked for the hospital's wage and benefit proposals. Brown responded: . . .that they did not have to make any at that time . . .but that were the union to agree to the hospi- tal's position in terms of the starting point of the ne- gotiations, then at the next session they would be prepared to make a wage and benefit offer. The union representatives protested the limitations placed on the matters to be negotiated and stated they would consult their attorney before responding. Other September 1978 events included an announce- ment by the Respondent on September 26 of salary in- creases of 4.4 to 5.9 percent effective September 25, im- plementation of a dental insurance plan effective Novem- ber 1, 1978, and increases in management contributions to health insurance premiums effective October 1, 1978, for all nonunit employees. On the same day, the Re- spondent announced that in view of the ongoing negotia- tions with the Union it was prohibited from making any unilateral changes in the salaries or benefits of employees in the unit represented by the Union. Improvements in salaries and benefits of nonunit employees were based on action taken in June 1978 by the hospital board of trust- ees approving a budget for the fiscal year beginning Oc- tober 1, 1978, authorizing sufficient funds for such im- provements and for equivalent improvements in salaries and benefits for unit employees effective the same date assuming the hospital administration offered such im- provements to the Union in the course of the negotia- tions. At no time did the Respondent assert it was unable to pay to unit employees, effective September 25, 1978, increases subsequently implemented for such employees effective March 12, 1979, as shown below. b. Period covered by the complaint (1) Meeting of October 25, 1978 The meeting opened with the union representatives ca- pitulating to the conditions demanded by the Respondent for continuing the negotiations, not, they announced, be- cause they agreed that the hospital had no obligation to bargain over issues agreed to before previous negotia- tions broke off, but because the Union had no desire to see the current negotiations dissolve into a long legal SOUTH SHORE HOSPITAL 3 4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD battle. The Union then withdrew from its August 29 pro- posals those which exceeded its level of demands as of April 1978-automatic cost-of-living increases, guaran- teed 25-cent increase upon promotion, 4 hours' call-in pay, $1.50 on-call pay differential, optical and disability insurance, sick leave buy-back, additional holiday, em- ployee access to his or her personnel file, notify Union of discharges, introduction of new hires to union steward, improved benefits for part-time employees, and minimum staffing requirements. The Union also reduced its salary increase proposals from 10 percent to 8-1/2 percent; asked for a 10-percent increase in the minimum-to-maxi- mum range in pay scales; a 55-cent shift differential, down from 65 cents; scale pay after 4 hours' work in a higher classification, down from I hour; 4 weeks' vaca- tion after 5 years and 5 weeks after 20 years, down from 4 weeks after 4 years and additional days starting in the 10th year; equalize vacations among all technical em- ployees by increasing vacation benefits for grades 4 through 6; hospital payment of 75 percent of premium cost for family health insurance, down from 100 percent, and fully paid dental insurance; all changes to be effec- tive October 1, 1978. The Union also voiced its accept- ance of items included in the Respondent's September 21 proposals which had been agreed to before April 1978. Although the Union affirmed its prior position on the three major items in dispute when prior negotiations broke off consisting of hospital proposals of reductions of benefits gained in previous contracts, the Union asked the Respondent to consider its proposal as a package offer, assuring the Respondent that the Union was flexi- ble and would consider modifications, but, it added, if the hospital should propose any major changes, the Union would reconsider the entire package. After a caucus, the Respondent announced it was sticking to its September 21 proposals, which included no change in position on the three major items of dispute except that it would increase it contribution to the pre- mium for family health insurance to 75 percent as it had done for nonunit employees on September 25. Shea ac- cepted this offer insofar as it applied to full-time employ- ees. Brown then added, with regard to the Union's pro- posal for a fully paid dental plan, it had granted nonunit employees a dental plan for which it paid 100 percent for individual coverage, and only 75 percent for family cov- erage, and would have to cost out the Union's proposal. Union Representative Shea stated that the nonunit dental plan was "not bad." After the union representatives asked several times for a wage proposal, Brown finally conceded he had promised to make such an offer if the Union acceded to his demand regarding the starting point for negotiations, and handed over a complete new wage scale reflecting increases of 3.3 to 4.2 percent, ef- fective after ratification of the contract, but said this was a negotiable item. After a caucus, the union representatives asked Brown if he was interested in settling the contract that night; Brown replied he was not prepared to do so as he had to leave the meeting to entertain an out-of-town guest. The parties scheduled additional meetings for November 3 and 8. No meeting was held on November 3, but the record does not reflect the reason. (2) Meeting of November 8, 1978 The Union began by requesting discussion of economic and benefit items, but the Respondent requested discus- sion of the Union's flexibility as to the three major none- conomic items of dispute left over from previous negoti- ations before taking up economic matters. The Union re- sponded it would adhere to its previously announced po- sition on these items as it represented a considerable re- treat from its initial stance that previously won conces- sions should not be reduced. Brown said the union posi- tion on union access was unreasonable and the Union should reconsider it "because the situation was getting 'dimmer all the time."' Union Representative Shea, Brown continued, had abused the access privileges grant- ed in the previous contract by using the public lavatory and public telephone instead of confining his visits with employees to the cafeteria of the hospital; and if the Union accepted his proposal on this issue, its representa- tives would always be able to meet with employees in their cars on the hospital parking lot. Angered by these remarks and the offensive tone in which they were made, Shea cursed Brown and the Respondent's repre- sentatives left the meeting. (3) Other events of November and December 1978 On November 30, a decertification petition was filed for an election in this unit. On December 6, the Re- spondent distributed a memo to all unit employees in- forming them of the petition and, among other things, expressing the hope that the Union would file a request to proceed with a decertification election. On December 20, the Regional Director dismissed the petition because of the pendency of the prior unfair labor practice pro- ceeding. 8 On December 13 the Respondent distributed another memo to unit employees informing them that the election would not be held because the Union unfortu- nately would not agree to the holding of such an elec- tion. (4) Meeting of December 15, 1978 At Union Representative Shea's request, this meeting was arranged by a Federal mediator who attended the session. Highlights of the meeting included Brown's dis- appointment with the Union, expressed several times, for not allowing the decertification election to proceed, and the Union's refusal to discuss it. Eventually the parties turned to the issues and the Union reviewed its position, including an 8-1/2-percent increase in pay and 55-cent shift differential retroactive to October 1, 1978, no posi- tion being more important than the retroactivity aspect; and its willingness to make some compromise on the three major left-over issues of call-to-work, insurance during unpaid leave, and access. Brown said he would address only wages and three so-called major issues. The remainder of the session was spent in separate confer- ences with the mediator. The Union's committee repre- sentatives told the mediator that wage and benefit im- provements effective October I was the important thing " On January 16, 1979, the decertification petition was withdrawn SOUTH SHORE HOSPITAL 5 to the Union and if the price of obtaining it was even greater flexibility on call-to-work, insurance coverage during unpaid leave, and access, it was willing to pay that price. The mediator brought back no response to that from the Respondent, but announced instead that nothing more would be accomplished at that session. The Union asked the mediator to arrange another meet- ing as soon as possible, and the union representatives were available the following week, but the mediator re- ported that January 5, 1979, was the earliest date on which the Respondent could meet. (5) Meeting of January 5, 1979 The Federal mediator attended this session. The Union began by saying it had used the approximately 20 days since the last session consulting extensively with its mem- bers and came with fresh authority to conclude an agree- ment including increased flexibility in its bargaining posi- tion; and it hoped to reach agreement today. As it had received instructions to bargain vigorously on pay and benefits, it asked for an offer on those items. Brown asked what flexibility the Union had on the other terms. The Union responded it was able to modify its position further but was not making any offers at this time. The Respondent then produced a new written proposal on economic and noneconomic issues, pointing out that it included the same health insurance previously offered, dental insurance, and a new pay offer, designed as the same package granted to nonunit employees the preced- ing September, effective after ratification. Brown pointed out that the Respondent was also proposing to eliminate entirely the modified union-security and checkoff clause of the previous contracts, and commented this should not make much difference to the Union as these provisions had not been in effect since shortly after the last contract expired on September 30, 1977. The Union then initiated discussion of certain broad language in Item 2 of the Re- spondent's proposal referring to wage and benefit im- provements implemented by the Respondent when the prior negotiations broke off,9 and Brown explained his intent was to capture the shift-differential increase to 50 cents an hour given at that time; Shea asked if the parties could just incorporate simple language to this effect in the shift-differential section of the contract; Brown said he would take this suggestion under advisement and let the Union know. In response to a union inquiry, Brown explained that the pay increase offer averaged 5.3 percent for individual employees except that the seven or eight "red circle" employees would receive 12-1/2 cents an hour, consider- ably less than 5.3 percent.' 0 Shea protested that red circle employees had been given the same percentage in- creases as other employees in the past. 9 Item 2 of the Respondent's proposal was as follows: "2. The wage increases and benefit improvements proposal by the hospital on March 22, 1978, and subsequently implemented for the bargaining unit, shall be the base from which any further wage increases and benefit improve- ments shall be implemented." lo "Red circle" employees are those whose pay rates do not fit any of the specific steps in the pay scale, usually those receiving more than the maximum of their scale for historical reasons. Shea then summarized some of the differences between the parties: (I) retroactivity; (2) red-circle rates; (3) am- biguous language regarding shift differentials; (4) the three major old issues; (5) Respondent's new proposal to eliminate union shop. Shea said this latter proposal en- dangered the negotiations because it was outrageous, coming 18 months into the negotiations and violating the Respondent's own guidelines that the bargaining must begin where it left off in April 1978 at which time no such proposal had been made. Brown repeated his reason, that the Union had done without such a provi- sion for over a year and it could just continue to do without it, and repeatedly asked the Union why it would not agree; Shea responded that the Respondent well knew why it was important and he had no intention of discussing the matter. To avoid collapse of the session, Shea asked for a caucus, but Brown said the Union could not caucus because he wanted an answer to his question. Shea accused Brown of dropping to a new obnoxious level of conduct, and the mediator finally separated the parties. After some shuttling back and forth, the media- tor brought the parties together again, at which time Shea gave the Union's views on several items in the Re- spondent's proposed package including the elimination of union shop. Brown responded that the Respondent had a major problem with retroactivity "because they felt that the contract should have been solved in September. And, it was the Union's fault that it wasn't solved." Thereafter, Brown presented a new offer of "some trades": red-circle employees would receive 26-1/2 cents, or about 5.3 percent of the minimum rate in their grades; he acknowledged he had previously agreed to time-and- a-half for more than 8 consecutive hours even if it crossed into the next workday; no movement on the three old major issues; and if the Respondent's position on all these issues was accepted and if the Union would withdraw its demand for retroactivity, the Respondent would withdraw its proposal to eliminate the union shop. The Union rejected the package without a caucus, in- forming management that no settlement was possible without retroactivity as voted by its members. The Re- spondent caucused and then revoked this package and reinstated its written offer made at the start of this ses- sion except for the red-circle rate increase. (6) Meeting of January 11, 1979 The Federal mediator attended this meeting. The union representatives started the meeting off by apologiz- ing for any offense caused by its rejecton of the Re- spondent's trade-off offer at the last meeting without caucusing, which was done because the union representa- tives thought they had clear instructions from their mem- bers on retroactivity. In the discussion which followed, the Union suggested, with respect to the Respondent's Item 2 that language be worked out simply stating what the shift differential was as the union representatives could not understand Item 2, but no agreement was reached. The Union also stated its view that as a matter of equity the red-circle employees should receive the same percentage increases as other employees. Meeting privately with Brown during the session, Shea informed SOUTH~~~~~~~~~.. SHOR HOS ITA _ 6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Brown that retroactivity on pay increases and certain benefits was a requirement for reaching agreement, but the Union did not insist on 100-percent retroactivity; if some retroactivity was granted, the Union would be willing to concede to the hospital's position on the three old issues of call-to-work, access, and insurance coverage during unpaid leave, even though the Union was thus making a major concession on issues it felt very strongly about. Brown responded that the hospital was not will- ing to give any retroactivity because it would indicate that the Union could in the future prolong negotiations beyond the expiration date of a contract and still expect to get retroactivity down the road, and the hospital did not want to provide an incentive for such conduct. Shea suggested that this concern could be handled by incorpo- rating a formula of some kind penalizing the Union by limiting the extent of retroactivity on a progressive basis. As no agreement was reached in the private session, upon their return to the general session Shea reasserted the importance of full retroactivity for reaching agree- ment, and Brown repeated the reason why the hospital was against it. (7) Meeting of February 7, 1979 This was a private meeting between Union Repre- sentative Shea and Respondent Representative Brown in the presence of a different Federal mediator and had to do exclusively with retroactivity. To allay Brown's ex- pressed concern over its future effect, Shea repeated his suggestion that contract language be worked out penaliz- ing the Union on a progressive basis if agreement was not reached by the time the contract expired, and sug- gested as an alternative a multiyear contract to reduce the frequency of the problem. Shea also offered to lump together the retroactivity arising out of the prior 1977-78 negotiations which were the subject of the unfair labor practice proceeding and that of the current negotiations and settle both disputes on a basis of a percentage of the total. Brown promised to explore the suggestions with the hospital. (8) Meeting of February 13, 1979 The negotiating committees did not meet jointly during this session, all discussion being between Shea and Brown privately, or with the mediator. Brown began by telling Shea that the hospital was not interested in either retroactivity or a multiyear agreement; although it was interested in language penalizing the Union on a progres- sive basis for failing to reach agreement by the expiration date, as Shea had suggested, this would not be sufficient for the hospital to agree to retroactivity. Shea reiterated the Union's willingness to concede to the hospital's posi- tion on the three old major issues in return for some re- troactivity and presented a specific formula for penaliz- ing the Union on retroactivity in the future. Brown reit- erated the hospital's opposition to retroactivity, and Shea repeated his suggestion that all retroactive matters could be lumped together in a settlement of the unfair labor practice proceeding and the current contract negotia- tions. Brown's response was negative. At the end, Shea gave the mediator an offer to accept 75 cents on the dollar of wage increases, and payment of health insur- ance premiums, back to October 1, 1978; with a dental plan to begin upon ratification of the contract. The ses- sion ended without a response from the Respondent as a member of its committee left for another appointment. Despite the Union's plea for an early resumption date, the Respondent stated it could not meet again until March 5. That meeting was not held, however, because Brown became ill. Brown also cancelled a meeting scheduled for March 13 because of other business over Shea's vigorous protest, but agreed to meet again on March 16. (9) Meeting of March 16, 1979 This was the last bargaining session. Brown opened the session by rejecting the offer made by the Union through the mediator at the end of the February 13 ses- sion, and announcing that the hospital felt it was the Union's fault that this contract had not been settled in September and the hospital therefore had no obligation to offer retroactivity and if the Union required any re- troactivity then the parties were deadlocked. Shea re- peated that the Union had increased flexibility and was willing to make concessions in order to reach agreement but the hospital's refusal of any retroactivity whatsoever was unacceptable. A new member of the union commit- tee plead for the Respondent to make an offer that would settle the contract, but Brown responded this was the second year in a row that the hospital had trouble with the Union's refusing to seriously consider the hospi- tal's proposals, that the hospital was put to the expendi- ture of money and energy due to the Union's actions in instigating the unfair labor practice litigation over the bargaining of the year before, that it was not the hospi- tal's fault that the unit employees were suffering over not getting the pay improvements they needed and just be- cause the Union had made mistakes the hospital was not required to pull its chestnuts out of the fire by offering retroactivity, adding that the Respondent had been ready to sign a contract without retroactivity on January 5. After a caucus, the Respondent made the following new offer: Wage increase effective March 12, health in- surance premium increase effective January 1, and dental insurance effective March 26. The Union rejected the offer and Brown said this offer was as far as the Re- spondent was willing to go. Brown added that the par- ties had at least reached agreement on the three old major issues. Shea protested heatedly that there was no agreement on those issues, asked what Brown thought the parties had been bargaining about for the past 4 months, and whether he thought the Union had given him something without getting anything in return; Shea explained that the Union had offered to consider conced- ing to the hospital's position on the three old major issues only in a context of receiving 75-cents-on-the- dollar wage increases retroactive to October 1, 1978, health insurance premium increase retroactive to Octo- ber 1, 1978, and dental insurance effective upon ratifica- tion of the contract. Brown replied that in any event the parties were at an impasse and the hospital would imple- ment its last offer. Shea stated that the parties were seri- SOUTH SHORE HOSPITAL 7 ously far apart on retroactivity; the Union had to have a satisfactory resolution of that issue to settle the contract; if the Union could get what it wanted on that issue, it would consider agreeing to the hospital's position on the three old major issues; and it looked to him like the par- ties were deadlocked on wages and benefits but not on other issues, which could still be negotiated. (10) Subsequent events The last bargaining session ended between I and 2 p.m. on March 16, 1979. About 2 p.m., the Respondent distributed to all unit employees an announcement that the negotiating parties were deadlocked chiefly because of the Union's insistence on retroactive wage increases; as a result of the impasse the hospital would implement its last offer on March 26, 1979; expressing regret that no new contract was agreed to; and stating "at least now all our employees will have received a wage and benefit in- crease." On March 26, 1979, the Respondent put into effect the terms of its last offer to the Union. B. Conclusions 1. The complaint alleges that the Respondent violated Section 8(a)(5) and (1) of the Act by refusing to bargain in good faith concerning wages, hours, and other condi- tions of employment from September 28, 1978, until Sep- tember 27, 1979. To determine whether the Respondent's conduct dem- onstrated a serious attempt to resolve differences and reach ultimate agreement, which the Act requires,'2 or directly obstructed or inhibited the actual process of dis- cussion, revealing a cast of mind against reaching agree- ment, in violation of Section 8(a)(5),'3 it is necessary to consider its conduct against the background of "the pre- vious relations of the parties [and] antecedent events ex- plaining behavior at the bargaining table and the course of negotiations."' 4 The background shows that the Re- spondent, in 1977, embarked on a course inimical to the Act by refusing to bargain with the Union over wages and other economic conditions until the Union agreed to reductions in existing benefits relating to pay rate when called to work at unscheduled time, payment of health insurance premiums during leaves of absence, and union representatives' access to the premises, and by refusing to bargain in good faith with respect to wages in that the Respondent on March 22, 1978, offered for the first time the same wage and benefit increases it had granted to ' The only variation was implementation of the dental plan April I instead of March 26, 1979, as offered to the Union. On September 27, 1979, the parties reached agreement on a new contract effective from Oc- tober , 1979, until September 30, 1980. 12 N.LR.B. v. Benne Katz et al.. d/b/a Williamsburg Steel Products Company, 369 U.S. 736, 747 (1962). "1 N.LR.B. v. Reed Prince Manufacturing Company, 205 F.2d 131, 139 (Ist Cir.); Electri-Flex Company, 238 NLRB 713, fn. I (1978), enfd. 104 LRRM 2612 (st Cir. 1979); M. R. d R. Trucking Company, 178 NLRB 167 (1969), modified 434 F.2d 689 (5th Cir. 1970). 14 In General Electric Company, 173 NLRB 253 (1968), enfd. as modi- fied 412 F.2d 512 (2d Cir. 1969), relied on by the Respondent, the Board held the parties to the same good-faith standard in bargaining about ground rules as in bargaining about wages, hours, and other terms and conditions of employment. nonunit employees 6 months before while refusing any retroactivity, in violation of Section 8(a)(5); and by with- holding from the unit employees the wage increases it had granted to nonunit employees in order to punish the unit employees for choosing to be represented by the Union, in violation of Section 8(a)(3) of the Act. There- after, the Respondent began the negotiations for a 1978- 79 contract with which we are here concerned by threat- ening not to bargain at all and delaying the opening ses- sion for 2 months after the Union's initial demand; and then, at the second session, which it delayed for almost another month, it announced its refusal to make a wage- and-benefit offer unless the Union would agree that the only subjects to be discussed were those items in dispute at the breakoff of the previous negotiations in April 1978. I agree with the General Counsel, bearing in mind that the hospital board of trustees had voted funds for the annual improvements in wages and benefits to become effective October I for nonunit employees, that this tactic virtually guaranteed that the critical issues would be the same issues which had previously led to the breakoff of negotiations after the Respondent's previ- ous bad-faith bargaining.' 5 I also agree with the General Counsel that the Re- spondent's bargaining tactics throughout the critical period beginning September 28, 1978, were strongly reminiscent of its conduct during the background period. Thus, the Respondent continued to engage in delays by declining to meet again until October 25, more than a month after the previous meeting, and by making its rep- resentatives available for only one meeting a month in 4 of the subsequent 6 months of bargaining, and by cutting meetings short despite the Union's entreaties to stay and hammer out an agreement. Moreover, the Respondent refused to make a wage-and-benefit offer until a month after it had granted improvements to nonunit employees and then offered less to the unit employees than it had granted to the nonunit employees, waited until the sixth bargaining session to offer unit employees the same bene- fits it had granted nonunit employees 3 months previous- ly and which it had authority to offer since before nego- tiations began, and remained inflexible on retroactivity for 6 months. The Respondent furthermore remained ab- solutely inflexible in its determination to reduce benefits previously won by the Union, in support of one of which, restricting access to the premises by union repre- sentatives, it advanced the specious argument of their past abuse by using public conveniences, thereby justify- ing the inference that its real purpose in making this pro- posal was to practically cut off contact between the em- ployees and their union representatives.' 6 By thus adher- ing to the same inflexible position on the four major issues which were predictably unacceptable, having pre- viously led to a breakdown in negotiations, the Respond- ent demonstrated a lack of interest in reconciling its dif- 16 Proposals designed to separate the employees from their union rep- resentatives have been held indicative of bad faith. Borg-Warner Controls. a Division of Borg-Warner Corporation, 198 NLRB 726, 737 (1972). '6 Proposals designed to separate the employees from their union rep- resentatives have been held indicative of bad faith. Borg-Warner Controls. a Division of Borg-Warner Corporation, 198 NLRB 726, 737 (1972). SOUTH SHORE HOSPITAL 7 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ferences with the Union, and a determination to continue along the path already found unlawful by the Board.'7 That this was the Respondent's true objective is rein- forced by its stressing the Union's alleged refusal to allow the Board to conduct an election on the decertifi- cation petition18 and castigating the Union for litigating the Respondent's previous unfair labor practices; by in- serting new issues late in the game regarding increases for red-circle employees and ambiguous language pur- portedly relating to shift differential; by proposing in the fifth session for the first time since before September 30, 1977, to eliminate the union security and checkoff provi- sions which had been incorporated in prior contracts, in violation of its own ground rules, insisting on its failure to understand why the Union would not immediately accept the proposal, and then cynically offering to drop it in exchange for the Union's capitulation on the four major issues; and by repeatedly blaming the Union for the parties' failure to reach agreement in September 1978, at which time the Respondent had not made any proposal on economic items because it was holding out for the Union's surrender to its ground-rules demand. There is no merit in the Respondent's argument that it was the Union's intractible stand insisting on full retroac- tivity which prevented the parties from reaching agree- ment, whereas the Respondent never failed to bargain over this issue, gave a business justification for refusing the Union's adamant demand for full retroactivity, and receded from its original position in its final offer. The record shows that the Union, seeking a breakthrough on this issue, offered several possible solutions, including concessions on the other three major issues in dispute, eventually to the extent of complete surrender, in ex- change for retroactivity, willingness to accept less than 100 percent retroactivity, and settlement of all money matters on a percentage basis. 19 By contrast, the Re- spondent, although professing the negotiability of its resistance to retroactivity adhered doggedly to its posi- tion until the last, even, as discussed above, to the extent of inserting an entirely new issue, in violation of its own ground rules, to create the appearance of giving some- thing in return. Even though the Respondent finally of- fered 2-1/2 months' retroactivity on health insurance and 4 days' retroactivity on wages, the latter amounted in effect to no retroactivity at all. Moreover, its so-called business justification consisted of a groundless charge that the Union had a propensity to prolong negotiations and was accompanied by an intransigence against all sug- 17 Borg-Warner Controls, a Division of Borg-Warner Corporation, suprao Gulf States Manufacturers, Inc.. 230 NLRB 558, 571, fn. 21 (1977), enfd in part 579 F.2d 1298 (5th Cir.), modified en bane 598 F.2d 896 (5th Cir. 1978) '8 It is Board policy not to conduct an election in the face of an 8(aX5) charge. See Bernel Foam Products Co., Inc., 146 NLRB 1277, 1282 (1964). Cf. Panda Terminals. Inc., 161 NLRB 1215, 1223 (1966). 19 Contrary to the Respondent, offers extended through a mediator are admissible evidence in bad-faith bargaining cases. See Neon Sign Corpora- tion, 229 NLRB 861, 862 (1977). N.L.R.B. v. Joseph Macaluso, Inc., d/b/a Lemon Tree, 104 LRRM 2097 (9th Cir. 1980), upholding the revocation of a subpena served on a mediator, is not applicable here. Offers made in so-called private sessions held by chief negotiators, with or without a me- diator present, are also admissible; it is in such sessions that the "serious bargaining" often takes place, as Union Representative Shea testified gestions by the Union designed to avert such alleged conduct in the future. Accordingly, I conclude that a preponderance of the evidence, considered in totality, establishes that from September 28, 1978, until March 16, 1979, the Respond- ent engaged in surface bargaining with no real intent to reach agreement but, on the contrary, with an intent to create and prolong a stalemate and destroy the unit em- ployees' support for the Union, and thereby refused to bargain in good faith in violation of Section 8(a)(5) and (1) of the Act. 20 2. The complaint alleges that the Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally chang- ing certain wages, benefits, and other terms and condi- tions of employment without bargaining in good faith with the Union. This allegation is based on the changes made in wages and working conditions of unit employees, in implemen- tation of the terms of the Respondent's last offer to the Union, on March 26, 1979, with respect to probationary period, overtime, call-to-work, pyramiding, assignment of work (Hospital Work), workday, holidays, vacations, health insurance coverage during unpaid leave, access to premises by union representatives, wage increase effec- tive March 12, 1979, shift differential, increase in health insurance premium effective January 1, 1979, and dental plan effective April 1, 1979. The Respondent contends it was justified in imple- menting the terms of its last offer because the negotia- tions had reached an impasse. However, the Respond- ent's surface bargaining with the intent of preventing agreement, as found above, precludes the existence of an impasse. 2t Accordingly, I conclude that the unilateral implementation of the Respondent's last offer to the Union constituted a further violation of Section 8(a)(5) and (1). 3. The complaint alleges that the Respondent withheld from employees in the unit wage increases it granted other employees from October 1, 1978, until March 12, 1979, to discourage membership in the Union, and there- by discriminated against the unit employees in violation of Section 8(a)(3) and (1) of the Act. 22 2( N.L.R.B. v. Insurance Agents' International Union, AFL-CIO, supra; NL.R.B. v. Patent Trader. Inc., 415 F2d 190, 197 (2d Cir. 1969), modi- fied en banc 426 F.2d 791 (2d Cir. 1970); Borg-Warner Controls, a Division of Borg-Warner Corporation, supra; N.L.R.B. v. Reed & Prince Mfg. Co., supra. 21 Clear Pine Mouldings, Inc. v. N.L.R.B, 105 LRRM 2132 (9th Cir 1980); Talbert Manufacturing, Inc., 250 NLRB 174 (1980). 22 The Respondent contends that this allegation is barred by Sec. 10(b) of the Act The original charge, filed on March 28, 1979, alleged that the Respondent had violated Sec. 8(a)(1) and (5) by failing to bargain in good faith between October 26, 1978, and March 16, 1979, and by announcing unilateral changes on March 16, 1979. The original charge also contained what the Board has called the usual catchall printed language, "By the above and other Acts, the above-named Employer has interfered with, restrained, and coerced employees in the exercise of the rights guaran- teed in Section 7 of the Act." The first allegation of a violation of Sec. 8(a)(3) by withholding wage increases appeared in an amendment to the charge dated January 2, 1979. I find no merit in the Respondent's 10(b) contention It is well established that "an amended charge, although filed more than 6 months after the occurrence of the unfair labor practice, will be timely if it relates to an unfair labor practice inherent in or connected with the original charge." Eugene and Veronica McManus, co-partners Continued 8 SOUTH SHORE HOSPITAL The pertinent background of the conduct here alleged to be unlawful consists of prior findings by the Board23 that the Respondent, in 1975, discharged two nonunit employees of the hospital to discourage their activities on behalf of the Union and otherwise interfered with em- ployees' union activities in violation of Section 8(a)(3) and (1) of the Act; and that the Respondent, from Octo- ber 1, 1977, until April 1, 1978, discriminatorily withheld from the same unit employees who are affected by this case wage increases which it granted to nonunit employ- ees in order to discourage membership in the Union, in violation of Section 8(a)(3). 245 NLRB 848.24 The evidence adduced in this proceeding shows that the hospital board of trustees authorized equivalent wage-and-benefit increases for unit and nonunit employ- ees before bargaining even began; and that the Respond- ent granted the authorized increases to its nonunit em- ployees at the same time it was beginning a second year of bargaining in bad faith with the Union. Adapting its conduct to the illegal pattern followed before, the Re- spondent refused to make any wage-and-benefit offer until the Union agreed to restrict bargaining to the four major issues in dispute. Moreover, it justified its desire to equalize the benefits of unit and nonunt employees, and yet for 3 months it persisted with a wage offer which would have placed the unit employees in a position infe- rior to that of the nonunit employees, and refused to equalize vacations for all employees within the unit. In addition, the Respondent called the unit employees' at- tention to the advantages gained by unrepresented em- ployees, advanced specious and pretextual reasons for its tenacious opposition to retroactivity, and falsely blamed the Union for its own disparate treatment of the employ- ees represented by the Union. In all the circumstances, therefore, including the union animus displayed by the Respondent in the past, the simi- larity of its conduct here to that which was recently found discriminatory by the Board, and the other unfair labor practices found herein of which the Respondent's attitude toward wage increases was part and parcel, I find that a preponderance of the evidence establishes that the Respondent again withheld from the employees in the unit wage increases it granted other employees from October 1, 1978, until March 12, 1979, to discourage membership in the Union, and I conclude that the Re- spondent thereby discriminated against these employees in violation of Section 8(a)(3) and (1) of the Act as al- leged in the complaint.2 5 d/b/a Sunrise Manor Nursing Home, 199 NLRB 1120, 1121 (1972). As the conduct involved in the 8(aX3) allegation in this case occurred dunng the same period of time, and is closely related to and connected with the conduct alleged in the original charge, and found above to be violative of Sec. 8(a)() and (1), I find that it is not barred by Sec. IO(b) of the Act. Examination of Husky Oil N.PR. Operations. Inc., 235 NLRB 418 (1978), The Herald Company, 181 NLRB 421 (1970), and other cases to which the Respondent had directed my attention, reveals that the conduct found to be time barred therein was, unlike this case, not part and parcel of the unfair labor practices originally charged. 23 South Shore Hospital, 229 NLRB 363 (1977). enfd. in part 571 F.2d 677 (st Cir). 24 See Heatrilator Fireplace. Division of Vega Industries. Inc.. 249 NLRB 544, fn 1(1980). 25 South Shore Hospital, 245 NLRB 848 (1979). II. REMEDY Having found that the Respondent has engaged in unfair labor practices in violation of Section 8(a)(l), (3), and (5) of the Act, I recommend that it be ordered to cease and desist therefrom, and, as the Respondent has now demonstrated a proclivity to violate the Act, from in any other manner restraining or coercing employees in the exercise of their Section 7 rights. Hickmort Foods, Inc., 242 NLRB 1357 (1979). Moreover, in order to ef- fectuate the purposes of the Act, I recommend that the Respondent be ordered to take certin affirmative action, including, upon request, bargaining in good faith with the Union as the exclusive representative of its employ- ees in the appropriate unit and embodying any under- standing in a signed agreement; and rescinding those un- lawful changes in wages, benefits, and working condi- tions unilaterally implemented on March 26, 1979 to which the Union objects and upon its request. Talbert Manufacturing, Inc., 250 NLRB 174, 183 (1980). In addi- tion, I recommend that the Respondent be ordered to make whole the unit employees for any monetary losses they may have suffered as a result of the Respondent's discriminatory withholding of wage increases from Octo- ber 1, 1978, until March 12, 1979, computed as provided in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest in accord with Florida Steel Corporation, 231 NLRB 651 (1977), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962).26 Upon the foregoing findings of fact and conclusions of law and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 2 7 The Respondent, South Shore Hospital, Weymouth, Massachusetts, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Discouraging membership in The Health Care Di- vision, Local 285, Service Employees International Union, AFL-CIO, or any other union, by withholding wage increases or otherwise discriminating against em- ployees in regard to hire or tenure of employment or any other term or condition of employment. (b) Unilaterally changing wages, benefits, or other terms or conditions of employment, or otherwise failing or refusing to bargain in good faith with The Health Care Division, Local 285, Service Employees Interna- tional Union, AFL-CIO as the exclusive representative of the following appropriate unit: All full-time, permanent part-time and part-time em- ployees of the Respondent at its Weymouth facility 26 There is no ment in the Respondent's contention that the Board does not have authority to order a make-whole remedy for the 8(aX3) and (1) violations found herein. South Shore Hospital, 245 NLRB 848, 862, fn. 26. 27 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 S O U T H S H O R E H O S P L 9 10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employed as X-ray technologists nuclear technolo- gists, laboratory technicians, laboratory technolo- gists, respiratory therapists, respiratory therapy technicians, physical therapy assistants, operating room technicians, EKG technicians, orthopedic technicians and pharmacy technicians, but excluding all licensed practical nurses, registered nurses, pro- fessional employees, clerical employees, students, temporary and casual employees, managerial em- ployees, guards, and supervisors as defined in Sec- tion 2(11) of the Act. (c) In any other manner restraining or coercing em- ployees in the exercise of the rights guaranteed them by Section 7 of the National Labor Relations Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Make whole the employees in the appropriate unit for any monetary losses they may have suffered as a result of discriminatory withholding of wage increases granted to nonunit employees, with interest, as provided in the remedy section of this Decision. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all timecards, payroll, social security, and personnel records and reports, and all other records necessary to determine the amount of backpay due under this Order. (c) Upon request bargain collectively in good faith with the Union as the exclusive representative of its em- ployees in the appropriate unit with respect to rates of pay, wages, hours of work, and other terms and condi- tions of employment and, embody any understanding reached in a signed agreement. (d) Rescind the changes unilaterally made in wages, benefits, and working conditions of employees in the unit on March 26, 1979, to which the Union objects and upon its request. (e) Post at its facility in Weymouth, Massachusetts, copies of the attached notice.2 8 Copies of said notice, on forms provided by the Regional Director for Region 1, after being duly signed by the Respondent's representa- tive, shall be posted by the Respondent immediately upon receipt thereof and be maintained by it for 60 con- secutive days thereafer, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region , in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 28 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."