St. Anthony Hospital Systems

46 319 NLRB No. 9 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 In adopting the judge’s rejection of the Respondent’s affirmative defense of laches, we note that the Respondent’s argument that it has been prejudiced by delay is based, in part, on its own destruction of its own personnel records after the timely unfair labor practice charge had been filed. 2 Member Browning agrees, for the above reasons, that American Diamond Tool is distinguishable from this case. In addition, how- ever, for the reasons set forth in Member Devaney’s dissent in American Diamond Tool, Member Browning does not subscribe to the panel majority’s holding in that case, and would overrule it. In Member Browning’s view, the union in that case, as well as the Union in this case, had no obligation to request bargaining after the employer implemented the layoffs without giving the union suffi- cient notice and an opportunity to bargain. Any subsequent bargain- ing over the layoffs would inevitably have been tainted by the em- ployer’s unilateral action. 3 In refusing to provide a monetary remedy for these unlawful uni- lateral changes, the judge was influenced by the fact that the parties had executed two collective-bargaining agreements in the intervening years, citing Emhart Industries, 907 F.2d 372, 379–380 (fiMDBUfl*ERR17*fiMDNM 1990)fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl, and St. John’s Hospita court, in Emhart denied enforcement of the Board’s order, finding no violation of the National Labor Relations Act and also stating that in any event, the court would not require a remedy. It stated that ‘‘unexcusable’’ delay by the Board had resulted in such a change in ‘‘the underlying situation at Emhart that enforcement of the order now not only would undermine more labor policies that [sic] it would advance, but would mock reality.’’ The holding, how- ever, turned on the particular circumstances of that case. At the time of the court’s decision, the reinstatement procedure at issue had been in use for 6 years, mostly with the Union’s agreement. Further, at the time of the court’s decision the affected facility was vacant. St. Anthony Hospital Systems and St. Anthony Fed- eration of Nurses and Health Professionals, AFT, AFL–CIO. Cases 27–CA–7640, 27–CA– 7767, 27–CA–9731, and 27–CA–12042 September 22, 1995 DECISION AND ORDER BY MEMBERS BROWNING, COHEN, AND TRUESDALE On November 12, 1993, Administrative Law Judge David G. Heilbrun issued the attached Decision. The Respondent, the General Counsel, and the Charging Party each filed exceptions and supporting briefs. The General Counsel and the Charging Party each filed an answering brief in response to the Respondent’s excep- tions. The Respondent filed an answering brief in re- sponse to the General Counsel’s and the Charging Par- ty’s exceptions, and filed a reply brief to the General Counsel and Charging Party’s answering briefs. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has de- cided to affirm the judge’s rulings, findings, and con- clusions1 and to adopt the recommended Order as modified. The Respondent relies on American Diamond Tool, 306 NLRB 570 (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl1992)fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17 that the Union waived its right to bargain concerning the Employer’s layoff of two employees in July 1991. In American Diamond Tool, the Board found that the employer violated Section 8(fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfla)fiMDBUfl*ERR17*fiMDNMflfiMDBUfl employees and subsequently transferring one of them to a nonunit position, without notifying the union and providing it with an opportunity to bargain, but that the union nevertheless waived its right to bargain sub- sequent to the layoffs by not requesting bargaining when it had the opportunity to do so during ongoing negotiations, in the particular circumstances of that case. The Board emphasized, however, that it was a combination of several circumstances that led it to con- clude that the union had waived its right to bargain, both because it did not request bargaining subsequent to the layoffs, and because it ‘‘expressly signaled its willingness to permit such conduct [i.e., the layoffs and the transfer] in the future.’’ Id. at 571. The Board stressed that it was not deciding if any of the cir- cumstances present in that case, standing alone, would prove a waiver, by conduct, of the union’s bargaining right. Id. We find that key circumstances present in American Diamond Tool are not present in this case, and that the Union did not waive its right to bargain by its conduct subsequent to the layoffs. The Board in American Dia- mond Tool relied in part on the fact that the union in that case proposed a management-rights provision that expressly authorized the type of layoffs that the Em- ployer had already put into effect. Id. at 570. In this case, there is no indication that the Union proposed the layoff provisions and the management-rights clause which were ultimately agreed to in the parties’ collec- tive-bargaining agreement. Further, the Respondent in this case, unlike the employer in American Diamond Tool, has not established that the procedures it used in effecting the 1991 layoffs were the procedures stated in the parties’ collective-bargaining agreement. Thus, contrary to the specific circumstances that, in their to- tality, led the majority to find a waiver of bargaining in American Diamond Tool, the Union’s simple failure in this case to request bargaining upon hearing rumors of an already implemented layoff does not suggest, much less expressly signal, that the Union either ac- cepted the Respondent’s unilateral action or condoned similar layoffs in the future.2 Contrary to the judge, we find that a monetary rem- edy is appropriate here and that it is feasible to make a reasonable determination of losses that employees suffered as a result of the Respondent’s unlawful changes in its staffing and leave policy, and that the appropriateness of the standard status quo ante remedy has not been rebutted.3 VerDate 12-JAN-99 15:44 Jul 27, 1999 Jkt 183525 PO 00000 Frm 00001 Fmt 0610 Sfmt 0610 D:\fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMflNLRB\fiMDBUfl*ERR17*fiM 47 ST. ANTHONY HOSPITAL SYSTEMS In this case, unlike Emhart, the delay in remedying the unfair labor practices was due in substantial part to the Respondent’s litiga- tion of the Union’s certification and to settlement discussions. As noted by the court in Emhart, ‘‘[r]emedies in unfair labor practice cases must be designed ‘to restore the status quo as nearly as pos- sible, had the wrong not been committed.’’’ [Citation omitted.] In St. John’s the Board simply concluded that unlawful changes had not been detrimental to the employees and therefore restoration was un- necessary. There is no such showing here. AMENDED REMEDY Having found that the Respondent, St. Anthony Hospital Systems, has engaged in unfair labor practices in violation of Section 8(fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfla)fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ER shall order it to cease and desist and to take certain af- firmative action designed to remedy its unfair labor practices and to effectuate the policies of the Act. Having found that the Respondent implemented its Personal Employee Time system (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMflPET)fiMDBUfl*ERR17*fiMDNMflfi 6, 1981, and issued revised staffing policies on No- vember 20, 1981, in violation of Section 8(fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfla)fiMDBUfl*ERR17*fiMD shall order the Respondent to rescind its PET system and revised staffing policies if requested to do so by the Union. We shall also order the Respondent to make its employees whole for any loss they may have suffered as a result of these unfair labor practices (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMflas determined at the compliance stage of this proceeding)fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl as prescribed in Ogle Protection Services, 183 NLRB 682 (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl1970)fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl, for the Retarded, 283 NLRB 1173 (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl1987)fiMDBUfl*ERR17*fiMDNMfl Having found that the Respondent laid off certain employees about May 30, 1986, and in July 1991, in violation of Section 8(fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfla)fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR shall, consistent with Rocky Mountain Hospital, 289 NLRB 1370, 1371 (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl1989)fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR diate and full reinstatement and make them whole for any loss of earnings and other benefits they may have suffered because of the layoffs in the manner pre- scribed in F. W. Woolworth Co., 90 NLRB 289 (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl1950)fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl, with ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge as modified below and orders that the Respondent, St. Anthony Hospital Systems, Denver, Colorado, its offi- cers, agents, successors, and assigns, shall take the ac- tion set forth in the Order as modified. 1. Add the following as paragraph 2(fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMflb)fiMDBUfl*ERR17*fiMDNM the subsequent paragraphs. ‘‘(fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMflb)fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl Res tem and unlawfully revised staffing policies, if re- quested to do so by the Union, and make employees whole for any losses they may have suffered as a re- sult of these unfair labor practices, in a manner deter- mined at the compliance stage of this proceeding.’’ 2. Substitute the attached notice for that of the ad- ministrative law judge. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT make changes in the leave system and staffing policies that affect the employees in the fol- lowing appropriate bargaining unit without providing prior notice and an opportunity to bargain to Denver Federation of Nurses and Health Professionals, as suc- cessor to St. Anthony Federation of Nurses and Health Professionals (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNM All full-time and regular part-time technical em- ployees employed at the St. Anthony Central and St. Anthony North facilities including Licensed Practical Nurses (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17* (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMflLPN)fi nicians, Orthopedic Technicians, Laboratory As- sistants, Phlebotomists, Surgical Technicians, In- strument Technicians, Pharmacy Technicians, Pul- monary Function Technicians, Radiology Tech- nologists, EEG/Neurodiagnostic Technicians, Res- piratory Therapy Technicians, Registered Res- piratory Therapists, Graduate Respiratory Interns, Ophthalmology Technologists, Histology Tech- nologists, Telemetry Technicians, Physical Ther- apy Technicians, OB Technicians, Traction Tech- nicians, Respiratory Equipment Technicians, GI Technicians, EKG Technicians, but excluding confidential employees, business office clerical employees, office clerical employees, guards, managers, and supervisors as defined in the Na- tional Labor Relations Act, and all other employ- ees. WE WILL NOT lay off employees in the above appro- priate bargaining unit without providing prior notice and an opportunity to bargain to the Union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL offer to Ann Gallagher, William Dalton, Ricky Ford, Eleona Duliga, Angie Pyeatt, Keith Cubedge, Larry Alirez, Cindy Glasgow, Florence Haeflinger, Pat Donaho, Barbara Fadely, and Marcie Ordunez immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to sub- stantially equivalent positions, without prejudice to their seniority or any other rights or privileges pre- viously enjoyed and WE WILL make them whole for VerDate 12-JAN-99 15:44 Jul 27, 1999 Jkt 183525 PO 00000 Frm 00002 Fmt 0610 Sfmt 0610 D:\fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMflNLRB\fiMDBUfl*ERR17*fiM 48 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD any loss of earnings and other benefits resulting from their layoffs, less any net interim earnings, plus inter- est. WE WILL rescind the PET system and revised staff- ing policies, if requested to do so by the Union, and make employees whole for any losses they may have suffered as a result of these changes, in a manner de- termined at the compliance stage of this proceeding. ST. ANTHONY HOSPITAL SYSTEMS Michael T. Pennington, for the General Counsel. James E. Hautzinger (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMflSherman & Howard)fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17 rado, for the Respondent. Joseph M. Goldhammer (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMflBrauer, Buescher, Valentine, Goldhammer & Kelman, P.C.)fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl, of Denver, Colorado, for the Charging Party. DECISION STATEMENT OF THE CASE DAVID G. HEILBRUN, Administrative Law Judge. These consolidated cases were tried at Denver, Colorado, on Au- gust 24, 1993. An originating charge was filed late in 1981 by St. Anthony Federation of Nurses and Health Profes- sionals, AFT, AFL–CIO (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMflthe Union)fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17 bered charges were filed in the years 1982 and 1986, respec- tively. The most recent charge, as Case 27–CA–12042, was filed by the Union on January 16, 1992. Complaints were duly issued shortly after the filing of each charge, and by order consolidating cases dated September 22, 1992, these were combined in an amended consolidated complaint of that date. The primary issues are whether St. Anthony Hospital Systems (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMflthe Respondent)fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl ditions of employees without prior notice to the Union, or af- fording it an opportunity to bargain with respect to such changes, and whether certain layoffs of bargaining unit em- ployees were made without comparable prior notice to the Union, all such conduct assertedly in violation of Section 8(fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfla)fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl(fiMDBUfl*ERR17*fiM amount of time that has passed since the originating charge in these now consolidated cases also presents a due process issue. On the entire record, including my observation of the de- meanor of witnesses, and after considering the briefs filed by the General Counsel, the Respondent, and the Charging Party, I make the following FINDINGS OF FACT I. JURISDICTION Respondent is a corporation with an office and place of business in Denver, Colorado, where it is engaged in the op- eration of an acute care hospital system. In the course and conduct of its business operations Respondent annually pur- chases goods, materials, and services valued in excess of $50,000 directly from points and places outside the State of Colorado, while also annually deriving gross revenues in ex- cess of $500,000. On these admitted facts I find that Re- spondent is an employer engaged in commerce within the meaning of Section 2(fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl2)fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl, ( Union is a labor organization within the meaning of Section 2(fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl5)fiMDBUfl*ERR II. ALLEGED UNFAIR LABOR PRACTICES A. Case Summary After certification of the Union in 1980 for a technical unit of hospital employees, Respondent pressed appeal litigation regarding its fundamental obligation to bargain. In the course of such activity this employer unilaterally made certain changes to preexisting terms and conditions of employment which affected the certified bargaining unit. Several years passed and then a substantial layoff of employees occurred in 1986, including various persons employed within the tech- nical unit here involved. Several more years again passed and in summer 1991, Respondent laid off two respiratory therapists, an occupation included within the bargaining unit. The parties had not commenced contract negotiations until June 1990, and this activity resulted in a first-time labor agreement between them as executed in March 1992. It ex- pired July 1, 1993, and has been succeeded by a new 2-year contract now in effect. B. Procedural Background In St. Anthony Hospital Systems, 282 NLRB 790 (fiMDBUfl*ERR17*fiMDN the Board granted a certain Motion for Summary Judgment by General Counsel, holding that Respondent had violated Section 8(fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfla)fiMDBU bargain with the Union as exclusive collective-bargaining representative under Section 9(fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17 an appropriate technical unit of hospital personnel as cer- tified earlier that year following a Board election. This Deci- sion and Order, issued by a panel majority on January 22, 1987, recounted numerous procedural happenings in the case up to that point, commencing with an election on April 16, 1980, in which a majority of valid and unchallenged ballots had been cast for the Union. Briefly and chronologically stated, the procedure that fol- lowed was: April 1980—Timely Employer (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR May (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMflest.)fiMDBU June 2, 1980—Regional Director’s (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl* tions, recommending that they be overruled. June (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMflest.)fiMDBU August 21, 1980—Board certification of the Union for the technical unit as completely described in 282 NLRB 790 at 791 and comprising approximately 327 employees. October 3, 1980—Union’s filing of charge as Case 27– CA–6947; this ultimately decided as 282 NLRB 790. October 22, 1980—R.D.’s issuance of complaint in Case 27–CA–6947. October 30, 1980—Respondent’s answer to complaint filed. January 25, 1982—General Counsel’s Motion for Sum- mary Judgment filed. February 2, 1982—Board transfers proceeding and issues Notice to Show Cause, to which both Respondent and Union file responses. August 24, 1984—Board denies Motion for Summary Judgment and remands to R.D. for further consideration con- sistent with St. Francis Hospital, 271 NLRB 948 (fiMDBUfl*ERR17*fiMDNM Decision and Order which had issued on August 13, 1984. VerDate 12-JAN-99 15:44 Jul 27, 1999 Jkt 183525 PO 00000 Frm 00003 Fmt 0610 Sfmt 0610 D:\fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMflNLRB\fiMDBUfl*ERR17*fiM 49 ST. ANTHONY HOSPITAL SYSTEMS November 5, 1985—R.D. reopens record while issuing no- tice of hearing. March 20, 1986—R.D. reaffirms 1980 certification by Supplemental Decision and Order. April 16, 1986—Respondent requests review of this Sup- plemental Decision. May 8, 1986—Board denies Respondent’s request for re- view. June 18, 1986—Board fixes this date as about when ‘‘the Respondent refuses to bargain with the Union.’’ July 10, 1986—General Counsel’s Motion for Summary Judgment filed. July 1986—Board transfers proceeding and issues Notice to Show Cause, to which Respondent files a response. January 22, 1987—Resultant Board Decision and Order. Respondent sought review of this decision in the court of appeals, resulting in St. Anthony Hospital Systems v. NLRB, 884 F.2d 518 (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl10th Cir. 1989)fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMD August 8, 1989, denied Respondent’s request for review and granted the Board’s cross-petition for enforcement. The court traced doctrine as to standards for bargaining unit determina- tions in the health care industry, and found that the technical unit here involved had been correctly fashioned under appli- cable law. The hospital’s petition for rehearing on the matter was denied on September 18, 1989. C. General Facts In the course of administrative law phases of this overall controversy, several actions were undertaken by Respondent which give rise to the majority of issues that are present for treatment. For context Respondent had maintained a com- prehensive, 10-page statement of ‘‘Staffing Policies’’ for its nursing department since at least 1979. These policies cov- ered numerous terms and conditions of employment, and par- ticularly as to work scheduling, variations thereto, and time off. By letter dated October 23, 1981, Claire Dernbach, presi- dent of the Denver Federation of Nurses and Health Profes- sionals (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMflDFNHP)fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl, wrote questing negotiations and information concerning ‘‘a new paid leave policy for employees’’ that was termed as having been brought to the Union’s attention. The area organization of which Dernbach was president included the St. Anthony Federation as the only health care facility chapter still viable in actively representing hospital employees. Her letter was answered on October 30, 1981, by then counsel to Respond- ent, denying the requests on the basis of Respondent’s non- recognition of the Union at that time. On the same date of October 30, 1981, Respondent administratively issued em- ployees notice of its implementing a Personal Employee Time (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMflPET)fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl system, to be written notice elaborately described the amount of PET time and conditions of its usage, all in substitution for what pre- viously had been the discrete categories of vacation, holi- days, and sick and funeral leave. On November 20, 1981, Respondent issued revised staff- ing policies as a new document with much the same format, and considerably similar content, to what had existed before. It resulted as an 11-page statement, with frequent reference to the new PET concept as it affected work scheduling and time off. On December 16, 1981, Dernbach again wrote to Respondent’s administrator, terming the revised staffing poli- cies as ‘‘changes in working conditions’’ and requesting ne- gotiations on the subject. This letter was not answered. Dorothy Mall is a long-service registered nurse (fiMDBUfl*ERR17*fiMDNM rently employed by Respondent as a part-time RN. She held office as president of the Union from July 1981 until January 1986. She had simultaneously held office as vice president of the DFNHP for this same period, then in January 1986 assumed the presidency of the Denver Federation and va- cated her position with the St. Anthony Federation. Mall cur- rently remains president of the DFNHP. She testified that during the latter months of 1981, Respondent neither notified her of the staffing policy revisions nor offered to bargain about them. In May 1986, Mall learned through a newspaper article that a reduction in force had occurred at Respondent. The Union had received no notice of this from the employer. By letter dated June 4, 1986, Mall wrote to Respondent’s per- sonnel official, referring to her indirect knowledge of the lay- offs and requesting negotiations on the subject and as to ef- fects on unit employees. Respondent’s then counsel answered this letter on June 18, 1986, denying the request for informa- tion or bargaining on the basis of continuing nonrecognition of the Union. The stipulated facts are that 10 individuals em- ployed within the technical unit were laid off as part of this 1986 reduction in force. When Mall assumed the presidency of DFNHP in January 1986, the St. Anthony chapter had become dormant. Its records were combined into those of DFNHP and no officers existed for the chapter. Following the court of appeals deci- sion in 884 F.2d 518, the parties for the first time com- menced contract negotiations. This process began in June 1990, with the representative for the technical unit as now finally recognized being the DFNHP. The agreement ulti- mately reached in March 1992 became effective on April 1, 1992. After the hiatus that had spanned several years, offi- cers were elected for the St. Anthony Federation following signing of this first contract. A printed booklet form of the agreement runs 82 pages covering typical subjects compris- ing wages, hours and conditions of employment, with a con- siderable amount of language devoted to the subject of PET as one of the contract articles. After the parties had commenced bargaining in June 1990 a corporate change occurred involving Respondent. The en- tity Provident Health Partners (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17 ary 1991, and Respondent became a part of that entity. David Black had become vice president of human resources in No- vember 1989 for the former business entity that Respondent constituted at that time. With the creation of PHP in January 1991, he assumed a broader position as vice president of human resources for that entity. Black has been Respondent’s chief negotiator throughout bargaining with the Union as first undertaken in June 1990. As the course of bargaining proceeded a point was reached in July 1991 when Respondent made two layoffs of res- piratory therapists. The employees chosen, Barbara Fadely and Marcie Ordunez, were the lowest and next to lowest in seniority, respectively, for this classification. The layoffs were made effective on July 16, 1991, for Fadely, and July 18, 1991, for Ordunez, at a time when the employees had previously discussed the prospects for layoff with Horace Kerr, another respiratory therapist and member of the Union’s bargaining committee. Mall testified that she had VerDate 12-JAN-99 15:44 Jul 27, 1999 Jkt 183525 PO 00000 Frm 00004 Fmt 0610 Sfmt 0610 D:\fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMflNLRB\fiMDBUfl*ERR17*fiM 50 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD heard from Kerr on July 20, 1991, how there were ‘‘rumors’’ of layoff in this classification being circulated. On a later date in 1991 Mall was also told by Jerry Fitzpatrick, also a respiratory therapist and similarly as with Kerr on the Union’s bargaining committee, that unnamed persons of this classification had been laid off. She did not, however, act on the information, and eventually forgot about it. Mall denied that Respondent had ever notified the Union of these layoffs before they occurred. D. Holdings The issues present in this attenuated proceeding are gov- erned by fundamental doctrine prohibiting an employer from unilaterally changing wages, hours, or other terms and condi- tions of employment where involved employees are rep- resented by a labor organization. NLRB v. Katz, 369 U.S. 736 (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl1962)fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl. The duty aris to apply during the period that is devoted to an employer’s challenge of a Board certification. Bob’s Big Boy Family Restaurants, 264 NLRB 432 (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl1982)fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17* well settled that making material and substantial unilateral changes while testing the validity of a certification shows an employer acting at its own peril. St. John’s Hospital, 281 NLRB 1163, 1168 (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl1986)fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl, several actions that assertedly violate Section 8(fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfla)fiMDBUfl*ERR17*fiMDNMflfiMDB not involve permissible alternatives to a scope or direction of business. As to the layoffs in particular they are instead, as the Board has written, decisions ‘‘to continue doing the same work [but] with fewer employees.’’ Holmes & Narver, 309 NLRB 146 (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl1992)fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl. The staffing policy changes of late 1981 created distinc- tively different working conditions in several significant re- gards. This resulted in changes in job assignments, periodic work schedules, guidelines for floating utilization between hospital units, vacation entitlement, and rules concerning ab- senteeism. With respect to the PET implementation numerous highly structured changes were made, which converted the several previous areas of paid leave into one general cat- egory. As evident from comparing modifications plainly or potentially stemming from the new PET system, the personal preferences of employees, and their random needs based on unexpected factors, would all be subject to an employer-pro- mulgated approach greatly different from what existed be- fore. Thus the staffing policy revisions and adoption of PET represented unilateral changes made without notice to the Union or bargaining on the subject. The Union’s written communications of October 23, and December 16, 1981, were sufficient as requests to bargain pursuant to the Union’s entitlement, which in each case were either denied or ig- nored. I hold from this that Respondent violated Section 8(fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfla)fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl(fiMDBUfl*ERR17*fiM changes. Much the same rationale applies to the bargaining unit lay- offs in May 1986. This action was impermissible under an employer’s basic statutory obligation to bargain over terms and conditions of employment. At that point in time Re- spondent was still following an incorrect strategy of expect- ing that litigation in progress about the Union’s entitlement to certification would insulate it from risk. This was simply a failed strategy, and Mall’s letter of June 4, 1986, amply preserved the Union’s standing to again accuse Respondent of violating the Act. By mid-1991 the parties were well along in contract nego- tiations, however, Respondent chose once more to disregard its obligation of notifying the representative of respiratory therapists that their layoffs were imminent and then actual. In this instance, contrasting with Mall’s prompt filing of a charge over the 1986 layoffs, the termination of two res- piratory therapists was not openly challenged until the Union’s final charge as Case 27–CA–12042 dated in January 1992. This does not, however, detract from the evident right of the Union to be offered bargaining about the layoff pros- pects, particularly with the parties in active contract negotia- tions at the time. I hold here that Respondent’s failure to give notice and accord the Union its opportunity to bargain over the two layoffs of July 1991 constituted the final viola- tion of Section 8(fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfla dated complaint. E. Affirmative Defenses Respondent has duly pleaded several separate defenses. These essentially amount to contentions of both waiver and laches and were briefed by Respondent’s counsel with that emphasis. As to waiver the basic of showing such effect on statutory rights must manifest in one of three ways; contractual lan- guage, conduct of the parties, or a combination of the first two. American Diamond Tool, 306 NLRB 570 (fiMDBUfl*ERR17*fiMDNMfl cases cited. If an employer fails to give prior notice of pro- posed change, a union will not be found to have waived its rights. San Antonio Portland Cement Co., 277 NLRB 309 (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl1985)fiMDBUfl*ER 924 (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl1988)fiMDBUfl Notice of the changes in late 1981 was pointedly withheld from the Union. Both staffing policy revisions and the PET system were disseminated strictly by direct information to the hospital’s employees. It does not suffice for Respondent to argue that actual notice would expectedly be in the Union’s possession because of the sweep these changes rep- resented. The two letters from the Union, or written on its behalf, amply demonstrated a desire to bargain about these subjects. Respondent’s handling of these requests, both by firm rejection in one instance and disregard in the other, not only highlighted its adamant stance in the early months fol- lowing certification, but also formed a basis for the Union to expect only futility in pressing similar requests for bar- gaining at future times. As to the 1991 layoffs I do not find the Union to have committed a waiver of statutory rights. Although the parties were in a course of bargaining, and their contract resulted in a layoff article where inverse seniority was the chief deter- minant, this fact is insufficient to settle the point. I hold this view even though Mall had actual informal knowledge of the layoffs and took no action to contest them. The more con- trolling consideration is that Respondent’s use of a consistent past practice in effecting layoffs could not supersede its obli- gation to refrain from unilateral action accompanying its own failure to give the Union prior notice. There was no showing of an urgent business necessity for the two 1991 layoffs, and the Union was presented merely with a classic fait accompli that does not suffice as valid notice. Overall these factors, coupled with an employer’s more pronounced obligation to VerDate 12-JAN-99 15:44 Jul 27, 1999 Jkt 183525 PO 00000 Frm 00005 Fmt 0610 Sfmt 0610 D:\fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMflNLRB\fiMDBUfl*ERR17*fiM 51 ST. ANTHONY HOSPITAL SYSTEMS acknowledge a labor organization’s entitlement to notice of changes, do not permit Respondent’s waiver defense to pre- vail. See Intersystems Design Corp., 278 NLRB 759 (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl1986)fiMDBUfl*ERR17*fiMDN Adair Standish Corp., 292 NLRB 890 (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl1989)fiMDBUfl*ERR17*fiMDNMflfiMDBU mountain Rural Electric Assn., 305 NLRB 783 (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl1991)fiMDBUfl*ERR17*fiMDNMflfi Intermountain case was decided on what the Board termed ‘‘limited circumstances’’ of that course of negotiations as it affected medical and dental insurance premiums, however I consider the Board’s reasoning supportive here of a conclu- sion that this Union did not ‘‘clearly intend, express, and manifest a conscious relinquishment of its right to bargain.’’ Respondent also invokes the doctrine of laches, couched in terms of classic estoppel theory against the Board because of long delay in bringing these consolidated issues to adjudica- tion now. Respondent concedes that generally the defense of laches is inapplicable to the Board’s public proceedings. F. M. Transport, 302 NLRB 241 (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl1991)fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ER Examination of the procedural history in the case shows a di- verse number of factors that caused 12 years to pass from the time of the earliest allegedly unlawful unilateral changes until now. These included not only Respondent’s own exten- sive litigation activity, but more importantly the evolving state of the law respecting unit determinations for the health care industry. Favorable consideration toward this defense would require both a showing of delay entirely attributable to General Counsel, and that Respondent has been prejudiced by a lack of due process that veritably precludes it from ef- fectively presenting its case. But as General Counsel has pointed out Respondent actually once argued for a stay of proceedings as an affirmative defense filed in May 1982 an- swering the complaint in Case 27–CA–7767. This position statement was never modified, and part of the long delay was consumed by settlement negotiations in which Respondent participated. As to prejudice, Respondent made a record of the exten- sive changes it experienced over the 12-year span. These in- cluded a transfer of operating responsibilities to a different religious order, a complete turnover in human resource ex- ecutives, the loss of all staff persons having labor relations responsibilities during the years 1980 through 1986, and the purging of personnel records after a 7-year period. Such ob- stacles are noted, however they do not in the aggregate rise to a due-process level of prejudice. This is particularly true where institutional foresight was the principal cause for a lack of litigation records, and no showing was made that in- dividuals with germane knowledge of the past could not be located. In sum, the element of prejudice to Respondent is not present as to case merits, however I shall develop below my recommended belief as to how these factors impinge on an appropriate remedy in this situation. CONCLUSIONS OF LAW 1. St. Anthony Hospital Systems is an employer engaged in commerce within the meaning of Section 2(fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl2)fiMDBUfl*ERR17*fiMDNMflfiMDBU of the Act. 2. St. Anthony Federation of Nurses and Health Profes- sionals, AFT, AFL–CIO and the Denver Federation of Nurses and Health Professionals, AFT, AFL–CIO are each a labor organization within the meaning of Section 5 of the Act. 3. Since August 21, 1980, the Union has been certified as the exclusive representative for purposes of collective bar- gaining of Respondent’s employees in a technical unit as de- scribed in that certification and later modified by voluntary agreement of the parties as set forth in article I,A of their collective-bargaining agreement that was effective until July 1, 1993. 4. By unilaterally revising its staffing policies effective November 20, 1981, without providing the Union with notice and opportunity to bargain about that decision and its effects, Respondent violated Section 8(fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17* 5. By unilaterally implementing the PET system effective December 6, 1981, without providing the Union with notice and opportunity to bargain about that decision and its effects, Respondent violated Section 8(fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17* 6. By laying off 10 individuals from the certified bargain- ing unit on or about May 30, 1986, without providing the Union with notice and opportunity to bargain about that deci- sion and its effects, Respondent violated Section 8(fiMDBUfl*ERR17*fiMDNM (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl5)fiMDBUfl*ERR1 7. By laying off Barbara Fadely and Marcie Ordunez from their bargaining unit positions as respiratory therapist in July 1991 without providing the Union notice and opportunity to bargain about that decision and its effects, Respondent vio- lated Section 8(fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfla)fiM 8. The unfair labor practices found above are unfair labor practices affecting commerce within the meaning of Section 2(fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl6)fiMDBUfl*ERR REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. Ordinarily an unlawful unilateral change in working condi- tions that is ‘‘material, substantial, and significant’’ warrants a monetary remedy so that a make-whole order may be ful- filled. Adair Standish, supra, at 892. See also Intermountain, supra, and Toyota of Berkeley, 306 NLRB 893 (fiMDBUfl*ERR17*fiMDNMflfi the working conditions imposed by Respondent’s unilateral actions of late 1981 had the potential for major effect on em- ployees of this bargaining unit. The changes involved all manner of work scheduling under the general heading of ‘‘staffing’’ (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMflpolicies created a major change in the way personal time off was planned and taken by employees. I recognize the principle that wronged employees are not to be penalized for extreme delay in the ordering of a legal remedy for unfair labor practices. However the particular fact situation here sufficiently compels another view. It is that re- gardless of reasons the extensive personnel records that would typically form a basis for reconstructing individual employee losses attributable to the ‘‘staffing’’ changes and PET system simply no longer exist. Absent such records a burdensome effort would need to be mounted in reconstruct- ing from secondary sources any quantifiable losses. There is a myriad of variations in how, and even why, employees were gainfully utilized by the hospital under its revised poli- cies as to staffing versus its original ones. Similarly with the PET system there could well be reconstructions showing how given employees were disadvantaged by the change, but this would all be based on circumstances and motivations now al- most historical in content. I do not believe the effort is justi- fied as a matter of conserving agency resources. The task of VerDate 12-JAN-99 15:44 Jul 27, 1999 Jkt 183525 PO 00000 Frm 00006 Fmt 0610 Sfmt 0610 D:\fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMflNLRB\fiMDBUfl*ERR17*fiM 52 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and rec- ommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes. 2 If 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 Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.’’ looking back into employment dynamics as they were occur- ring up to 12 years ago seems too daunting for what could reasonably be yielded by the effort. I am also influenced by the fact that these very passing years have resulted in two collective-bargaining agreements between the parties, and the extent to which lessons of the staffing policy revisions bene- fitted current contract provisions is a possibility too great to be ignored. Cf. Emhart Industries v. NLRB, 907 F.2d 372, 379–380 (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl2d Cir. 1990)fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl. changes rendered by Respondent in 1981 from normal reme- dial action. Cf. St. John’s Hospital, supra at fn. 3. Other than this exception, the remedy is intended to be complete as de- scribed immediately following. Having found that Respondent violated Section 8(fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfla)fiMDBUfl*ERR17*fiMDNMflfiM (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl5)fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl by laying off employe in July 1991 without advance notice to or bargaining with the Union before the layoffs, I shall order Respondent, on re- quest, to bargain with the Union concerning those layoffs. I shall further order that Respondent reinstate and make whole the employees laid off on those dates by paying them their normal wages from the date of their layoffs until the earliest of the following conditions are met: (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl1)fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR laid-off employees; (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl2)fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl m method, and effects of the layoffs; (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl3)fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR1 resulting in a bona fide impasse; (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl4)fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17* to commence such negotiations within 5 days of Respond- ent’s notice of its desire to bargain with the Union; or (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl5)fiMDBUfl*ERR17*fiMD the subsequent failure of the Union to bargain in good faith. The individuals to whom this portion of the remedy applies are Ann Gallagher, William Dalton, Ricky Ford, Eleona Duliga, Angie Pyeatt, Keith Cubedge, Larry Alirez, Cindy Glasgow, Florence Haeflinger, Pat Donaho, Barbara Fadely, and Marcie Ordunez. Backpay shall be based on the earnings the laid-off employees normally would have received during the applicable period, less any net interim earnings, and shall be computed in the manner set forth in F. W. Woolworth Co., 90 NLRB 289 (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl1950)fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNM in the manner set forth in New Horizons for the Retarded, 283 NLRB 1173 (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl1987)fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended1 ORDER The Respondent, St. Anthony Hospital Systems, Denver, Colorado, its officers, agents, successors, and assigns, shall 1. Cease and desist from (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfla)fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl Making unilateral c providing adequate notice of proposed changes, and adequate opportunity to bargain about them, to the collective-bargain- ing representative of the employees affected by those changes. (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMflb)fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl Making unilateral Time (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMflPET)fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl system with proposed changes, and adequate opportunity to bargain about them, to the collective-bargaining representative of the em- ployees affected by those changes. (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMflc)fiMDBUfl*ERR and Health Professionals as successor to St. Anthony Federa- tion of Nurses and Health Professionals by unilaterally laying off employees without notifying the Union of the decision to lay off and without giving such bargaining representative an opportunity to bargain over the effects of the decision to lay off employees from the following bargaining unit: All full-time and regular part-time technical employees employed at the St. Anthony Central and St. Anthony North facilities including Licensed Practical Nurses (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMflLPN)fiMDBU Technicians, Medical Technicians, Orthopedic Techni- cians, Laboratory Assistants, Phlebotomists, Surgical Technicians, Instrument Technicians, Pharmacy Techni- cians, Pulmonary Function Technicians, Radiology Technologists, EEG/Neurodiagnostic Technicians, Res- piratory Therapy Technicians, Registered Respiratory Therapists, Graduate Respiratory Interns, Ophthalmol- ogy Technologists, Histology Technologists, Telemetry Technicians, Physical Therapy Technicians, OB Techni- cians, Traction Technicians, Respiratory Equipment Technicians, GI Technicians, EKG Technicians, but ex- cluding confidential employees, business office clerical employees, office clerical employees, guards, managers, and supervisors as defined in the National Labor Rela- tions Act, and all other employees. (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfld)fiMDBUfl*ERR ing, or coercing employees in the exercise of the rights guar- anteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act. (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfla)fiMDBUfl*ERR Eleona Duliga, Angie Pyeatt, Keith Cubedge, Larry Alirez, Cindy Glasgow, Florence Haeflinger, Pat Donaho, Barbara Fadely, and Marcie Ordunez immediate and full reinstate- ment to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously en- joyed, and make them whole for any loss of earnings and other benefits suffered as a result of the discrimination against them, in the manner set forth in the remedy section of this decision. (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMflb)fiMDBUfl*ERR or its agents for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMflc)fiMDBUfl*ERR attached notice marked ‘‘Appendix.’’2 Copies of the notice, on forms provided by the Regional Director for Region 27, after being signed by the Respondent’s authorized representa- tive, shall be posted by the Respondent immediately on re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the VerDate 12-JAN-99 15:44 Jul 27, 1999 Jkt 183525 PO 00000 Frm 00007 Fmt 0610 Sfmt 0610 D:\fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMflNLRB\fiMDBUfl*ERR17*fiM 53 ST. ANTHONY HOSPITAL SYSTEMS Respondent to ensure that the notices are not altered, de- faced, or covered by any other material. (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfld)fiMDBUfl*ERR from the date of this Order what steps Respondent has taken to comply. VerDate 12-JAN-99 15:44 Jul 27, 1999 Jkt 183525 PO 00000 Frm 00008 Fmt 0610 Sfmt 0610 D:\fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMflNLRB\fiMDBUfl*ERR17*fiM