Chester County Hospital

604 320 NLRB No. 25 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 On July 14, 1995, Administrative Law Judge Marvin Roth issued the attached decision. The Respondent filed exceptions and a sup- porting brief. The General Counsel filed a brief in support of the judge’s decision and an answering brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. 2 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an admin- istrative law judge’s credibility resolutions unless the clear prepon- derance of all the relevant evidence convinces us that they are incor- rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. The Respondent also has excepted to the judge’s decision asserting that it evidences bias and prejudice. On our full consideration of the entire record in these proceedings, we find no evidence that the judge prejudged the case, made prejudicial rulings, or exhibited im- permissible bias against the Respondent in his analysis and discus- sion of the evidence. 1 All dates are here are for 1992 unless otherwise indicated. 2 By a ruling and order dated April 6, 1995, I directed that the stenographic transcript of proceedings be corrected in certain re- spects. The Chester County Hospital and International Brotherhood of Teamsters, AFL–CIO, Local 312. Case 4–CA–21243 December 28, 1995 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS BROWNING AND TRUESDALE This case presents questions whether the judge cor- rectly found that the Respondent violated Section 8(a)(5) and (1) of the Act by failing to bargain in good faith with the Union and by unilaterally failing to give bargaining unit employees a scheduled across-the- board wage increase, and that the Respondent violated Section 8(a)(1) by engaging in surveillance of, or cre- ating the impression of surveillance, of protected em- ployee union activities.1 The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,2 and conclusions and to adopt the rec- ommended Order. ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge and orders that the Respondent, the Chester County Hos- pital, West Chester, Pennsylvania, its officers, agents, successors, and assigns, shall take the action set forth in the Order. Richard P. Heller, Esq., for the General Counsel. G. Roger King, Esq., of Columbus, Ohio, and Julia M. Bros, Esq., of Washington, D.C., for the Respondent. Mark P. Muller, Esq., of Chester, Pennsylvania, for the Charging Party. DECISION STATEMENT OF THE CASE MARVIN ROTH, Administrative Law Judge. This case was heard at Philadelphia, Pennsylvania, on February 1, 2, and 3, 1995. The charge and amended charges were filed respec- tively on November 23 and 30, 1992, and January 11 and 21, 1993, by International Brotherhood of Teamsters, AFL– CIO, Local 312 (the Union).1 The complaint, which issued on July 20, 1993, alleges that the Chester County Hospital (the Company or Respondent) violated Section 8(a)(1) and (5) of the National Labor Relations Act. The gravamen of the complaint is that the Company allegedly (1) engaged in surveillance of employees’ union activities, (2) unilaterally failed and refused to provide bargaining unit employees with a scheduled across-the-board wage increase, and (3) failed and refused to bargain in good faith with the Union over the terms of a collective-bargaining contract. The Company’s an- swer denies the commission of the alleged unfair labor prac- tices, and affirmatively contends, in sum, that: (1) the Com- pany fulfilled its bargaining obligations, (2) the Union bar- gained in bad faith, (3) the instant charge was not timely filed with respect to the alleged unilateral failure to grant a wage increase, and (4) the Union and the Board are estopped from proceeding with respect to the alleged 8(a)(5) viola- tions, by reason of positions taken by the Union in the nego- tiations. All parties were afforded full opportunity to partici- pate, to present relevant evidence, to argue orally, and to file briefs. The General Counsel and the Company each filed a brief. On the entire record in this case,2 and from my observa- tion of the demeanor of the witnesses, and having considered the arguments of counsel and the briefs filed by the parties, I make the following FINDINGS OF FACT I. JURISDICTION The Company, a Pennsylvania corporation, is engaged in the operation of an acute-care not-for-profit hospital (the Hospital) located in West Chester, Pennsylvania. In the con- duct of its operations, the Company annually derives gross revenues in excess of $250,000, and annually purchases and receives at its hospital goods and materials valued in excess of $50,000 directly from points outside Pennsylvania. I find, as the Company admits, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and a health-care institution within the meaning of Section 2(14) of the Act. II. THE LABOR ORGANIZATION AND THE BARGAINING UNIT INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. On December 3, 1991, following a Board-conducted election, the Union was certified as collec- tive-bargaining representative of the Company’s employees in the following unit: 605 CHESTER COUNTY HOSPITAL All full-time and regular part-time skilled maintenance and groundskeeping employees employed at the Com- pany’s 701 East Marshall Street, West Chester, Penn- sylvania facility, excluding all other employees, office clericals, guards and supervisors as defined by the Act. The certified unit consisted of about 20 skilled maintenance employees. At all times since December 1991, the Company has employed about 1400 employees. Other than the certified unit employees, none of the Company’s employees were rep- resented by any labor organization during this time period. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Preliminary Contacts Between the Parties and an Overview of the Negotiations By letter dated December 3, 1991, Company Counsel Ste- ven B. Silverman informed Union Secretary-Treasurer Tim Lehman that: Historically, the Hospital has had a wage pol- icy for all of its employees consisting of an annual across- the-board wage increase, together with an annual review for each employee on the employee’s individual anniversary date of employment’’ (Emphasis added.) Company counsel indi- cated that some bargaining unit employees had upcoming employment anniversary dates. He added that the Company had a discretionary Christmas bonus ‘‘which it intends to grant to all of its employees.’’ Company counsel added that in view of the Union’s certification, and the Company’s wish to avoid taking unilateral action, he was requesting the Union’s view on how to handle these matters. Union Secretary-Treasurer Lehman promptly replied. By letter also dated December 3, 1991, he asserted that when ne- gotiations began, all issues, including wages, would be bargainable, and that until that time, the Union had ‘‘no problem with the Company continuing its normal policies concerning wage and salary review and Christmas bonus.’’ Lehman declared: ‘‘As long as the hospital adheres to its es- tablished policy concerning the items raised in your letter during the interim, until an agreement is reached, we do not intend to challenge it.’’ (Emphasis added.) Lehman requested a copy of the Company’s wage and Christmas bonus policies in order to ‘‘monitor them.’’ In a subsequent letter dated Jan- uary 3, 1992, Lehman requested additional information, in- cluding the classification and wage schedules and benefit policies. The General Counsel does not contend that the Company failed to furnish the Union the requested informa- tion. It is undisputed that in July 1991 the Company granted an across-the-board wage increase to all its employees. The Company, by its December 3, 1991 letter, unequivo- cally told the Union that the Company had an established policy of granting an annual across-the-board increase to all its employees, i.e., that it did not regard the increase as dis- cretionary (apart from the amount) or subject to limitation to less than all its employees. The Company highlighted this as- sertion by distinguishing the increase from annual individual reviews, and from the Christmas bonus, which it regarded as discretionary, albeit granted to all employees. The Union, in its response, made clear that it had no objection to the Com- pany’s asserted policies, and anticipated that until a contract was reached, the Company would follow such practices with respect to the unit employees, including the annual across- the-board wage increase. On February 21, union and company representatives met preliminary to commencement of formal contract negotia- tions. Present for the Union were then Union Secretary- Treasurer Timothy Lehman, Union Vice president Ted Uniatowski, and Union General Counsel Mark Muller. Present for the Company were its counsel, Roger King, and Assistant Director of Human Resources Mark Felici. The union representatives asserted in sum that they wanted to maintain existing benefits and wages. They said the unit employees were principally concerned about job security and their perceived need for a grievance-and-arbitration proce- dure. They indicated they would request standard ‘‘boiler plate’’ language on union security, dues checkoff, grievance and arbitration, and several other matters. Lehman opined that the negotiations should be easy. Attorney King, the Company’s principal spokesperson, dis- agreed with Lehman’s appraisal. He opined that there would be difficulty in accepting the Union’s boilerplate language. King said the Company was concerned that the Union would expand its organizing efforts throughout the Hospital. Leh- man said that the Union was not then interested in organizing other employees, but its main concern was getting a contract for the unit employees. The company representatives did not, at this meeting, indicate any problems with maintaining ex- isting benefits and wages. The parties scheduled negotiations to commence on March 17. The parties met in 20 negotiating sessions over a period of nearly 2 years. They met on March 17, April 9, May 27 and 28, June 19, 25, and 26, July 8, 22, and 23, August 25, September 2, October 7, 28, and 30, and November 9, 1992. After the Union filed the present unfair labor practice charges, the parties resumed contract negotiations. They met on March 29, May 17, July 14, and December 22, 1993. They never reached agreement on a contract. The Union’s negotiating team initially consisted of Vice President Uniatowski, Secretary-Treasurer Lehman, and Unit Steward Doyle Donovan. Uniatowski served as union chief negotiator in the first two sessions. Thereafter, he remained on the union team throughout the negotiations. Lehman, who had supervisory authority over Uniatowski, occasionally at- tended negotiating sessions. Unit employee Ed Hoxter some- times substituted for Donovan. Donovan last attended a bar- gaining session on October 30, 1992. Sometime thereafter, the Company discharged Donovan. Dan McCullough re- placed him as union steward. Union Counsel Mark Muller did not attend the first two bargaining sessions. The Union preferred that its counsel not participate in negotiations. However, Muller subsequently as- sumed union office (on April 1 as vice president and on May 4 as business agent). Thereafter, Muller functioned as the Union’s chief negotiator. Attorney King was the Company’s chief negotiator. Com- pany Assistant Director of Human Resources Mark Felici at- tended the negotiations through March 29, 1993. Subse- quently, he left the Company’s employ. Company Director of Human Resources Richard Bramble replaced Felici in the ne- gotiations. Company Assistant Vice President for Support Services Louis Guardiani was present throughout the negotia- tions. 606 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Among the participants, Muller, Felici, and Guardiani took notes during the negotiations. These notes were presented in evidence. Felici took the most copious notes. Muller testified that his purpose in taking notes was to keep track of contract proposals and their status. Among the participants, Muller, Felici, Guardiani, and Bramble testified concerning the negotiations. Muller and Felici were the principal witnesses respectively for the Gen- eral Counsel and the Company. Felici testified in sum as follows concerning his approach to the negotiations. He wanted a contract which was in the best interests of the Company and the Union. He did not know or even consider how the Union or the unit employees would react to each company proposal. He viewed the bar- gaining as a ‘‘give and take’’ process. At a subsequent point in this decision, I shall discuss the significance of this testi- mony. During the course of the negotiations, the Union on four occasions presented comprehensive contract proposals (March 17, October 30, and November 9, 1992, and by letter dated February 25, 1993). The Company never submitted a comprehensive contract proposal. Rather, the Company pre- sented its proposals on a piecemeal basis, beginning with its first proposals at the May 27, 1992 session, and continuing thereafter. The Company variously submitted initial subject matter proposals on May 27 and 28, June 19 and 25, July 8, 22 and 23, and November 9, 1992. B. The First Phase of Negotiations (March 17–June 26) and Company Actions with Respect to Personnel Policy Union Vice President Ted Uniatowski drafted the Union’s proposed contract, which he presented to the Company at the first session on March 17. The following is a summary of the Union’s principal proposals: 1. Union recognition. Recognition for the certified unit, i.e., in the language of the certification. The certified unit in- cluded one regular part-time employee. The other employees were fulltime. 2. Union security and checkoff. A standard, or conven- tional, 30-day union-security clause and checkoff of union dues and initiation fees. The Company would also deduct voluntary employee contributions to DRIVE. Both union se- curity and checkoff are subject to and as permitted by law. 3. Seniority. Promotional opportunity and job security should increase in proportion to length of continuous service. Both full-time and part-time employees would have seniority rights. 4. Layoffs would be in inverse order of seniority. 5. Recall would be in inverse order of layoff. 6. Job stewards. The proposal spelled out the duties of stewards, including investigation, presentation, and process- ing of grievances, without loss of pay. Stewards would have superseniority as to job security. The Company could impose greater discipline against a steward for violation of the no- strike clause. 7. Inspection Privileges (visitation). The Union would be entitled to access to the Hospital to investigate working con- ditions, adjust disputes, collect dues, and determine contract compliance, provided there was no interruption of the Hos- pital’s working schedule. 8. Suspension and Discharge. These required ‘‘just cause,’’ written notice to the employee and the Union, and one prior written warning (except for four causes). If proven that the suspension or discharge was unjust, the employee would be entitled to reinstatement with backpay. Disciplinary notices would remain in effect for a maximum of 6 months (Inserted change to 12 months). 9. Grievance procedure–Arbitration. A three-step proce- dure with ‘‘final, conclusive and binding arbitration’’ as the final step. A grievance is defined as any question raised under the contract or dispute raised by the employee or the Union. The arbitrator has no power to change the contract. Arbitration fees are divided equally between the Company and the Union. The steward is permitted time to investigate and adjust grievances. Settlements and decisions are final and binding. 10. No-strike or lockout. Employees are subject to dis- cipline, including discharge, for striking during contract term. However, it is not a contract violation for employees to refuse to cross a primary picket line or enter premises in- volved in a primary labor dispute. 11. Military Service. (In accordance with law.) 12. Wages. Annual successive increases of 20 cents, 25 cents, and 30 cents per hour, plus C.O.L.A. based on current company policy. Time and one-half for all hours worked over 8 hours per day or 40 hours per week. The proposal added a stricken notation concerning certain alleged prob- lems, specifically, working alone on off-shifts, and pay for weekend work. 13. Benefits. All current benefits shall remain in effect and increased whenever increased for nonunit personnel (‘‘me- too’’ clause). These include vacations, holidays, sick leave, jury duty, health and welfare, pension, shift differential, leadman premium, and funeral leave. As will be discussed, these benefits were described in the Company’s employee handbook and other company-generated documents. 14. (Omnibus). All current practices and policies would be presented to the Union for discussion at the bargaining table. 15. Subcontracting. Not permitted if such would result in layoff or reduction of work or earnings opportunity for unit employees. 16. Posting of Notices. The Company will provide the Union with a bulletin board. 17. Extra Contract Agreements. The Company will not enter into agreements with its employees which conflict with the contract. 18. Non-Discrimination. Insertions limit clause to bargain- ing unit employees. 19. Savings and Severability. If a contract section is held invalid, the parties will negotiate. If no agreement, the Com- pany will be bound by the Union’s position if upheld by a tribunal of competent jurisdiction or an agreed-on tribunal. 20. Term of Contract. Three years. The parties reviewed the Union’s proposals, with the Com- pany asking questions concerning the proposals. The Union asserted that grievance-arbitration was important, as this was the main reason they were there. The Union said they had union security and checkoff in all their private sector con- tracts, and expected both in this contract. The Union also stated that both were in boilerplate language, and that the proposed steward clause tracked the language of the Union’s International constitution and bylaws. The parties also set certain ground rules. They agreed to share the cost of the negotiations. Union Counsel Muller tes- 607 CHESTER COUNTY HOSPITAL tified (with respect to the February 21 meeting) that they agreed to discuss wages last. Company Assistant Director of Human Resources Felici testified that the Company pro- posed, and the Union agreed, that where possible they would hold off on economic issues until a substantial part of the contract was discussed. However, Company Assistant Vice President for Support Services Guardiani’s notes indicate that among other ground rules, the parties agreed: ‘‘non-economic issues first. Then money.’’ I find that his notes probably re- flect what was agreed. By letter dated January 30 (prior to commencement of ne- gotiations) Company President H. L. Perry Pepper informed all hospital employees that during the period February 12 to 15, the Company would conduct an opinion survey to deter- mine how to improve the organization. Participating employ- ees were eligible for inclusion in a drawing for a free vaca- tion trip. By letter dated February 12, the Union confirmed to the Company that it had no objection to unit employees participating in the survey. The Company proceeded with the survey, which was con- ducted by an outside consultant. Although ostensibly provid- ing for anonymity, the survey questionnaire requested em- ployees to identify themselves by department, position, length of service, shift, and status (full or part time). The questionnaire solicited employee opinion on a wide range of attitudes, including whether they were treated fairly, whether tardiness and absenteeism were handled fairly, whether bene- fits (generally and specifically) compared favorably, whether discipline was consistent, and whether employees got a fair hearing. The employees were invited to add their comments. In addition, some employees were selected for interview with the outside consultant. In mid-April, Company President Pepper informed the em- ployees concerning the survey results. Pepper asserted that most employees felt that pay and benefits were generally comparable to other area hospitals, and that pay was gen- erally fair, but that dental coverage, pension, and time off for disability should be reviewed. Pepper reported that the em- ployees wanted a fair hearing on their grievances, and im- provements in the merit increase system. Pepper further reported to the employees concerning com- pany measures (in addition to the survey), which, he submit- ted, were designed to improve the quality of the Hospital’s operation and ‘‘the quality of work life here for each em- ployee.’’ One such measure was a ‘‘Continuous Quality Im- provement’’ program (CQI), which included the formation of a ‘‘Quality Improvement Team’’ (QIT) in each department. The Company had, earlier in 1992, already commenced im- plementation of this program. Pepper requested the employ- ees to participate in the program. Assistant Company Vice President for Support Services Guardiani testified that the CQI program was voluntary, i.e., that employees were not re- quired to participate. Pepper also informed the employees that in response to their desire for a fair hearing on their grievances, the Com- pany would implement a ‘‘Peer Review Grievance process.’’ In December 1992, Pepper informed the employees that the Company would be implementing such process in March 1993. The process included two systems of review. One (‘‘Dispute Resolution Process’’) purported to be a three-step grievance procedure providing for appeals to management up to the level of corporate vice president. This would include review of suspensions pending discharge. The grievant would have the benefit of an ‘‘employee assistance representative.’’ The second system dealt with certain issues involving em- ployee dissatisfaction. A ‘‘Peer Review Panel,’’ consisting of two managers and three employees, would render a final de- cision. The Peer Review Grievance Process applied only to nonbargaining unit personnel. When the parties convened at their second bargaining ses- sion on April 9, they discussed the CQI program (sometimes referred to as ‘‘Total Quality Management’’ or ‘‘TQM’’), the Company explained CQI, and asked if the Union would agree to the unit employees joining the program. Union Steward Donovan, after reading a description of the program, said he saw no problem with the employees joining a QIT. Guardiani testified that the Union expressed concerns about the program but seemed receptive. The Company asked the Union to get back on this. Felici’s notes indicate a reference to employees resigning from the QIT, and ‘‘we cannot force anyone to join.’’ The Company then proceeded to give verbal responses to the Union’s proposals. The Company agreed that the intro- ductory paragraph was generally acceptable, but they wanted different wording. On recognition, the Company wanted to exclude the regular part-time employee, coupled with a for- mula applicable to temporary help. The Company indicated, in sum, that it was categorically opposed to union security and/or dues checkoff. Felici testi- fied that on several occasions, the Company explained its ‘‘philosophy’’ that the unit employees ‘‘should have the abil- ity to choose whether or not to join the Union and that the Union should be responsible for collecting the dues.’’ Muller testified that the Company said they didn’t collect for other organizations and would not start with union dues. The Com- pany never deviated from its opposition to either union secu- rity or checkoff. Union Attorney Mark Muller testified that he did not re- call the Company objecting to the union security proposal on the ground that the proposal failed to comply with Commu- nication Workers v. Beck, 487 U.S. 735 (1988), although it is possible that the Company did so (as indicated, Muller was not present at the March 17 and April 9 sessions). None of the company witnesses testified that the Company took such position, nor do their notes indicate such position. I find that the Company asserted its objection to union security solely on its alleged philosophic position as testified by Felici. The Union told the Company that all but two unit employ- ees had signed membership cards. Felici testified that on sev- eral occasions the Union said it would not sign or agree to a contract without union security or checkoff. The Company will, on request, make deductions from em- ployee paychecks for 16 different items, including taxes, health insurance programs, tax shelter annuity, credit union, and repayment of advances. Code numbers are available for additional deductions. Company Human Resources Director Bramble testified that all deductions were for company-spon- sored programs or governmental entities. However, the Com- pany will deduct for contributions to United Way, which is neither company sponsored nor governmental. When con- fronted with this fact, Bramble gave two explanations: (1) United Way contributions were appropriate for deduction be- 608 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD cause ‘‘not required,’’ and (2) the Company has been deduct- ing for United Way for a long time. The following is a summary of the Company’s principal further responses to the Union’s proposal: On Seniority, the Company wanted seniority only for full-time employees, pro- posed 90-day probation for new full-time employees and 180 days for part-time employees (instead of 30 days as proposed by the Union) and questioned the need for posting of senior- ity. On Layoff, the Company wanted choice based on needed skills, with seniority only as a tie breaker. On Recall, the Company wanted choice based on its needs. On Stewards, the Company rejected compensation for time spent on stew- ard business, and rejected superseniority. On Inspection privileges, the Company expressed some thoughts for a coun- terproposal, including provision for advance notice. On Sus- pension and discharge, the Company gave various responses, including agreement, rejection, questions, put on hold, quali- fication, or that it would submit a counterproposal. On Grievance-arbitration, the Company indicated that it would submit a counterproposal, discussed some specifics, and stat- ed that it wanted the right to appeal the arbitrator’s decision. On No-Strike or lockout, the Company rejected the primary picket line-primary strike exception. On Military Service, the Company indicated no problems. On Wages, the Company requested a hold, because economic issues had not yet been addressed. On Benefits, the Company also requested a hold, in order to review costs. On Omnibus, the Company indi- cated it would discuss policies and procedures, and propose a zipper clause which would preclude bargaining on any mat- ter not in the contract. On Subcontracting, the Company re- jected the Union’s proposal, indicating that it intended to continue operating as it saw fit. On Posting of Notices, the Company indicated that it wanted such posting limited to the maintenance shop and to unit business. On Extra-Contract Agreements, the Company indicated ‘‘okay.’’ On Non-Dis- crimination, the Company indicated that the concept was agreeable, but they had to work on the language. On Savings and Severability, the Company also indicated that the con- cept was agreeable, and that the Union would provide addi- tional language. On Term of Contract, the Company re- quested a hold, and raised a question as to whether there should be a wage reopener. Felici’s notes indicate that the Union responded to the Company’s statements of position. By letter dated May 13 to the Union, Felici confirmed that the Union agreed to formation of a QIT which would include the unit employees, and that Union Unit Steward Donovan would be the team leader. When the parties met in their third negotiating session on May 27, they again discussed the CQI program; although (as stated by Company counsel King and noted by Company As- sistant Vice President for Support Services Guardiani) CQI and the negotiations were separate issues. The Company complained that unit employees were dropping out of the program. Uniatowski pointed out that the program was vol- untary. Donovan said that the employees were upset because the negotiations were taking too long. He also raised a ques- tion as to the legality of the program, referring to E. I. du Pont & Co., 311 NLRB 893 (1993). At the May 27 session, the Company submitted five writ- ten contract article proposals: shift differential, overtime, management rights, alteration of contract and waiver, and no strike-no lockout. On shift differential, the Company proposed a 75-cent-per- hour differential for hours worked on both the second and third (evening and night shifts). This differed from the Com- pany’s existing practice, under which second-shift employees received a differential of 75 cents per hour, and third-shift employees received a differential of $1.50 per hour. The Company’s proposal did not require any minimum number of hours scheduled or worked in order to qualify for differential pay. Under the existing practice, employees had to be scheduled for at least 4 hours of premium work in order to qualify. According to Felici, this was an example of the ‘‘give and take’’ process which the Company used as a ‘‘chip’’ to get a good contract. However, among the unit em- ployees, the Company had one full-time employee working the third shift, with a relief employee replacing the third-shift employee on weekends when the regular third-shift employee was not working. Consequently, the presence or absence of a 4-hour minimum requirement had little or no relevance to the situation of the unit employees. The only significant ef- fect of the Company’s proposal would be a 75-cent-per-hour pay reduction for the third-shift employee and his weekend replacement. In sum, the proposal was one of ‘‘take’’ with- out any meaningful ‘‘give.’’ Company Officials Felici and Guardiani gave conflicting explanations as to the basis for the Company’s shift-differen- tial proposal. According to Felici, the Company conducted an area wage survey, which constituted the rationale and basis for the Company’s wage proposals, including shift differen- tial. Felici testified that he and Guardiani used the survey in developing their wage proposals. The survey was not shown to the Union. Felici testified that the survey showed that some area employers paid shift differentials which exceeded $1.50 per hour. The Company introduced in evidence a pur- ported wage survey, covering only maintenance positions, which indicated that one area hospital (Brandywine) paid a wage differential comparable to the Company’s third-shift differential (range of $1 to $1.50 per hour). Nevertheless, Felici testified that he concluded that the shift differential for the unit employees was ‘‘above market.’’ Felici testified that the wage survey was prepared about 1 month before the Company presented its wage proposal (July 8). His testimony raises a question as to whether the Com- pany even had the alleged survey by May 27, when it pre- sented the shift-differential proposal. Guardiani testified in sum that he took the initiative in preparing the shift-differen- tial proposal, that he did not know whether the proposal was prepared before or after the wage survey, and he was not fa- miliar with the survey. Guardiani testified that he based his consideration of area wages on his knowledge of the Potts- town Hospital union contract (Guardiani previously worked at that hospital). The Company has about 1100 full-time employees and about 300 part-time employees. About 60 to 65 percent work the day shift, about 25 percent are on the evening shift, and about 10 percent are on the night shift. In sum, about 100 to 140 employees qualify for the $1.50-per-hour shift dif- ferential. The Company had more than nine classifications of employees who were eligible for shift differential. Felici tes- tified that the differential was ‘‘above the market’’ for ‘‘nursing and physical therapists,’’ but this was traditional 609 CHESTER COUNTY HOSPITAL for a ‘‘country hospital.’’ However, Felici admitted that al- though the company hospital is located outside of the Phila- delphia metropolitan area, it is not in a rural area. Felici fur- ther testified that he considered the shift differential for reg- istered nurses to be ‘‘within . . . [a]cceptable market,’’ al- though their differential might be as much as 25 cents per hour above market. Felici testified that the Company conducts annual wage surveys, which sometimes include wage differential. How- ever, Company Human Resources Director Bramble (who has held his position since 1972), testified that the Company annually reviews shift differential, together with other wage issues. Felici and Bramble testified in sum, that the Company has never reduced the wage differential for any of its em- ployees. The Company never deviated from its position on shift differential, and the parties never reached agreement on this matter. In sum, the Company contends that in May 1992, it sud- denly discovered that among all of its employees who were eligible for third-shift differential, the only ones who were so overpaid as to warrant a drastic reduction in that differential were those in the small unit represented by the Union. I find this assertion incredible. In light of the testimony of the com- pany witnesses, it is evident that the Company had long been well informed concerning prevailing area shift differentials, and saw no reason to change its practices until the Union came on the scene. Their testimony and in particular the con- tradictions and inconsistencies in their testimony further demonstrate that the Company had no new wage survey or other pertinent information when it prepared and presented its shift-differential proposal. I find that the Company had no valid objective or subjective basis for proposing drastic re- duction of third-shift differential, and that the proposal was not made in good faith. On overtime, the Company proposed time-and-one-half for hours worked over 8 hours daily and 80 hours during a 14- day period for employees on the ‘‘8/80’’ basis, and for hours worked over 8 hours daily and 40 hours weekly for employ- ees on the ‘‘8/40’’ basis. The Company proposed that sick days, vacation time, and any other nonworktime shall not be counted as hours worked for the purposes of overtime. In other respects, the proposal did not materially differ from current hospital policy. Under current company policy, as set forth in the em- ployee handbook, holiday, vacation, and sick pay are counted as time worked for purposes of calculating overtime pay. In this regard, the Company was proposing a reduction in pay standards for unit employees. Union Negotiator Muller testified that under current prac- tice, the Company paid time-and-one-half after 8 hours per day and 40 hours in a pay period. Human Resources Director Bramble testified that under current practice, the Company paid daily (over 8 hours) overtime only for employees on an ‘‘8/80’’ schedule. However, Bramble testified that he did not know whether the unit employees worked on an 8/40 or 8/80 schedule. The employee handbook is silent on this matter. There is no indication that this alleged distinction was dis- cussed in the negotiations. In the absence of any testimony or other evidence from the Company that the unit employees were not receiving daily or weekly overtime pay, I credit Muller’s testimony that unit employees, at least, were paid both daily and weekly over- time. If in fact the Company was offering the employees a benefit which they did not currently enjoy, and which was not apparent on the face of the proposal, then it is probable that the Company would have pointed this out in the negotia- tions. However, there is no indication that the Company did so. In sum, with respect to overtime, the Company proposed a reduced pay scale, without any pertinent ‘‘give.’’ As will be discussed, the Company did not offer any explanation for its overtime proposal until the 16th negotiating session on November 9. With respect to management rights, the Company proposed a sweeping clause, which on its face, would effectively pre- clude the Union from any meaningful negotiating rights dur- ing contract term, and preclude the unit employees from any meaningful grievance-arbitration procedure. The Company proposed that management of the Hospital and direction of the unit employees be vested exclusively in the Company, and that such rights, included (among others) the right to suspend, discharge, lay off, assign, and evaluate employees, subcontract or transfer unit work, change working hours, du- ties and qualifications, and test employees for substance abuse. The clause further provided, in sum, that such man- agement rights were not limited to those enumerated in the clause, but that the clause should be construed broadly. On alteration of contract and waiver, the Company pro- posed a clause which, in part, backed away from the Compa- ny’s previously stated position with respect to the Union’s proposal on savings and severability. As indicated (Company Assistant Director of Human Resources Felici’s notes), the Company stated on April 9 that the Union’s concept was agreeable. However on May 27, the Company presented a diametrically opposite proposal. The Company proposed that if any contract provision were held invalid, that ruling would ‘‘govern and prevail,’’ and the balance of the contract would remain in effect. On no strike-no lockout, the Company proposed language which varied in several material respects from the Union’s proposal. The Company proposed, in sum, that the Union was required to take specific measures to end any work stop- page, review of related discipline was limited to the question of whether the employees engaged in any work stoppage dur- ing contract term, and the Company could invoke the griev- ance-arbitration procedure in the event of such work stop- page. The proposal also limited the definition of a lockout under this clause. The Company’s proposal did not include a primary strike-primary picket line exception. Although the Union proposed no strike-no lockout as a corollary to griev- ance-arbitration, the Company did not present its proposal on grievance until June 19, and on arbitration, until June 26. The parties discussed no strike-no lockout. The Company expressed concern that the employees might engage in a sympathy strike. The Union responded that a construction site picket line on hospital premises would not be a primary picket line, and that if a supplier or carrier were on strike, roving pickets could only picket the delivery truck, i.e., they could not picket the Hospital. The Union also expressed con- cern that the Company’s proposal would make the Union re- sponsible for the actions of its job steward. The Union point- ed out that the steward had no authority to call a strike. 610 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The Company again stated its opposition to union security. There was no movement or agreement on any issues at this session. The parties met again the following day (May 28). The Company proposed a zipper clause as an addition to its pro- posed article on alteration of agreement and waiver (and counterpart to the Union’s proposal on current practices). The Company proposed that it could unilaterally eliminate any past practice or local privilege not covered by the con- tract. The Company also proposed articles on sick days, lay- off and recall, and vacations. On sick days, the Company proposed (for full-time em- ployees only), paid sick leave commencing with the fourth day of absence due to illness. However, the Company could require a physician’s statement for any absence due to sick- ness or disability. Sick leave could be accumulated at the rate of 5/6 day per month, up to a maximum of 180 days. However, sick leave would not be payable on termination of employment. The Company’s existing practice, as stated in its employee handbook, provided for sick pay for full-time employees, without any minimum absence. The handbook also indicated that sick leave could be accumulated to a maximum of 65 days. However, the Company’s summary of benefits states that there is ‘‘no maximum limit on accumulation’’ of sick days. Therefore, it is evident that this was in fact the Compa- ny’s practice. In other respects, the Company’s proposal was substantially consistent with company practice. In sum, the Company proposed to reduce sick leave for unit employees by eliminating paid leave for the first 3 days of any illness (even proven), without offering any pertinent ‘‘give.’’ The Union never asked for any increase in permis- sible accumulation of sick leave. Even if the Company’s pro- posal would increase allowable sick leave, the proposal would have little if any benefit for the unit employees. As sick leave was not payable on termination of employment, an accumulation above 65 days would be of value only in the rare event of a catastrophic illness or injury. The Company’s professed rationale for its sick leave pro- posal, as testified by Felici and Guardiani, was that unit em- ployees were abusing the sick leave privilege, in particular, by taking off on Mondays, Fridays, or other individual days. Therefore, according to Felici, the Company needed guide- lines on use of sick leave. Felici and Guardiani formulated the proposal. Muller testified that the Company explained that the proposal was because of absenteeism on Mondays and Fridays. In support of its asserted position, the Company presented in evidence, a study of absenteeism in the unit over a 4-year period (1989 through 1992). The study is dated November 2, 1992, and purports to be complete through the pay period October 18, 1992. Therefore, it is evident that the Company did not have the benefit of this study when it prepared and presented its contract proposal. Moreover, the study demonstrated that, in fact, the unit employees had a generally good attendance record. The study shows that in 1991, the last full year before the negotiations, there were a total of 22 absences on Mondays or Fridays or day before a scheduled day off, and a total of 19 other sin- gle-day absences. In sum, this showed an average of one ab- sence per employee in each such category, over the entire year. Guardiani, who prepared the study, was unable in his testimony to identify any unit employee whom he could characterize as a sick leave abuser during the period of the negotiations. There are other obvious fallacies in the Company’s ration- ale. The Company made no comparative study of other de- partment personnel attendance. Even if unit personnel were abusing sick leave as alleged by Felici and Guardiani, the Company’s proposal was a clear case of overkill. The pro- posal did not simply exclude single-day absences from sick pay. Rather, it excluded the first 3 days of any absence, even if the employee furnished a physician’s statement. Thus, even a hospitalized unit employee would not be able to use accumulated sick leave for the first 3 days of absence. The Company never modified or withdrew its proposal on sick leave. I find that the proposal was designed to be puni- tive rather than remedial and, like the proposal on shift dif- ferential, was not made in good faith. On vacations, as with shift differential, overtime and sick days, the Company proposed terms which were less favor- able to the unit employees than current company practice. The Company, as indicated in the employee handbook, paid part-time employees a bonus, based on a percentage of earn- ings, in lieu of paid vacation. The Company’s proposal would eliminate any vacation compensation for part-time unit employees. The handbook provided, in a flexible manner, that vacations be scheduled by previous and timely arrange- ment, and approved by the department manager. However, the Company’s proposal would impose a strict deadline for vacation requests (March 31), require employees requesting a weekend vacation to obtain a qualified replacement, and prohibit use of vacation time for less than a full day. The Company did not even bother to offer an explanation or jus- tification for its position. I find that the proposal for less fa- vorable vacation provisions was not made in good faith. On layoff and recall, the Company proposed, with respect to reductions-in-force of more than 60 days, that reductions would be ‘‘based on the abilities and skills of the remaining employees.’’ Seniority would be used as a tie breaker only if, in the opinion of the Company, the employees had equal ability and occupational skill. Laid-off employees would be recalled in inverse order of their layoff, subject to the Com- pany’s job skill needs. The proposal was silent as to layoffs of 60 days or less. Therefore, under the Company’s propos- als, the management-rights clause would govern, i.e., the Company would have unlimited discretion as to such layoffs. Company policy, as set forth in the employee handbook, provides that regular full-time employees have seniority rights. The handbook states that: ‘‘In matters of promotion, demotion, layoff and recall after layoff, physical capability and occupational skill are prime considerations. Where in the opinion of the Hospital, employees have equal skill or enti- tlement, the decision will be based on seniority.’’ The com- pany policy contained no limitation with respect to duration of layoff. Therefore, in this regard, the Company proposed terms which were less favorable to the unit employees than those provided under current company policy. In sum, with respect to layoffs generally, under existing policy the Company retained sole discretion to decide when seniority would govern, i.e., by determining that the other factors were equal. However, under the Company’s proposal, the Company would retain total discretion with respect to layoffs of 60 days or less, without restriction as to seniority, 611 CHESTER COUNTY HOSPITAL skills, abilities, or any other factor. Indeed, the Company could extend this discretion to cover any layoff, e.g., by ini- tially laying off employees for 60 days or less, and then ex- tending the layoff. The Company offered no pertinent ‘‘give,’’ and offered no explanation or justification for the proposed deviation from its current policy. As discussed, the Company was well aware that job security was a principal concern for the unit employees. I find that the Company’s proposal, insofar as the Company proposed less favorable conditions than those under its current policy, was not made in good faith. Felici testified that at the May 28 session, the Company presented its proposal on job classifications. However, the proposal is dated June 19 (the date of the next session), and the parties stipulated that the proposal related to the June 19 session. Therefore, I shall discuss the proposal in connection with that session. The parties discussed the issues presented by the Compa- ny’s proposals. The Union rejected the management-rights proposal. Discussion of sick days focused on requirement of a physician’s statement for first-day absence. Felici noted that the union members were ‘‘antsy,’’ so they didn’t want CQI. He also noted that on union security and checkoff, the Company held to its position that the ‘‘choice is the mens’.’’ There was no movement or agreement on any issue. There- after, the parties did not discuss CQI until the 16th bargain- ing session, on November 9. The parties next met on June 19. By agreement, a Federal mediator entered the negotiations. King summarized the sta- tus of negotiations for the mediator. King added that the Company had an old line, ‘‘straight-laced’’ management, and they were concerned about unionization spreading throughout the Hospital. The Company presented contract proposals on job classi- fications, holidays, and grievance-arbitration, and revised proposals on sick days, vacations, layoff and recall, and man- agement rights. The Union presented counterproposals on management rights and sick days. The Company’s revised proposals on sick days, vacations, layoff and recall, and management rights reflected no mate- rial change from the Company’s initial proposals. On vaca- tions, the Company proposed to tighten the restriction on weekend vacation by providing that the replacement would not be eligible for overtime pay, without departmental ap- proval. On management rights, the Company proposed an ad- dition which would authorize the Company to act unilaterally and deal directly with employees with respect to matters cov- ered by the Americans with Disabilities Act, including work assignment and schedules, and that the Union waived any right to bargain concerning such matters. In sum, the Compa- ny’s revised proposals either made no change in the Compa- ny’s positions, or moved away from, rather than toward, agreement. On job classifications, the Company proposed to abolish existing job titles and, instead, to group the employees in four job classifications roughly ranging from most skilled to least skilled. The Company further proposed to eliminate the third classification (former title of ‘‘general mechanic’’ or ‘‘general maintenance worker’’) by attrition. Felici testified at one point that the Company made this proposal in order to make it easier to formulate the Compa- ny’s wage proposal. At another point, Felici testified that he could not tell, from the Company’s wage proposal, either under the existing or proposed job classifications, whether the unit employees would receive higher, lower, or the same pay, and that the Company did not even consider that factor in formulating its proposals. Guardiani noted that King said they would address the matter of job classifications when they talked about wages. It is evident that the Union could not intelligently respond to the Company’s job classification proposal, until it received and had an opportunity to evaluate the Company’s wage proposal. Whether or not the proposed classifications made the Company’s task any easier, it is evi- dent that the proposal was not designed to facilitate negotia- tions over wages. On holidays, the Company sounded a familiar theme, by proposing terms which were inferior to those under current company policy. Under the existing policy, as set forth in the employee handbook, regular full-time employees, on comple- tion of 1 month’s employment, were entitled to six paid holi- days and 3 paid personal days, and a fourth personal day after 3 months’ employment. Regular part-time employees were eligible to receive bonus pay, based on earnings, in lieu of paid holidays. Holidays, like vacations, were scheduled by arrangement and approval. The Company proposed that regular full-time unit employ- ees, on completion of probationary period (66 working days) would be entitled to six paid holidays. They would earn 3 personal days at the rate of one per year, to a maximum of three personal days. Regular part-time employees would not receive any holiday benefits. The Company also proposed (as with vacations) strict standards for taking personal holidays, including a requirement that the employee obtain a qualified replacement for a weekend personal day. The Company proposed no pertinent improvements in hol- iday benefits, and gave no explanation or justification for re- ducing or eliminating such benefits. I find that the Compa- ny’s proposal on holidays was not made in good faith. On grievance-arbitration, the Company presented an in- complete proposal. The Company proposed to define a griev- ance as a disagreement between the Company and an em- ployee concerning interpretation or application of or compli- ance with the contract, subject to the management-rights arti- cle of the contract, and other limitations contained in the contract. The Company proposed a four-step grievance pro- cedure, with arbitration as the fourth step, However, the Company did not at this time, submit any language covering the arbitration process. On management rights, the Union counterproposed a more restricted article than that proposed by the Company. The Union proposed that suspension and discharge be for ‘‘just cause,’’ and that subcontracting be excluded. On disabilities, the Union proposed that company actions could not violate the rights of other employees, and that company actions would be subject to grievance-arbitration. The Union pro- posed to delete the broad interpretation language. On sick days, the Union counterproposed sick leave for regular full-time and part-time employees, accumulation of sick days up to 180 days, and deletion of the 3-day mini- mum. The parties did not reach agreement on any contract provi- sions at the June 19 session. The parties next met in their sixth and seventh sessions, on June 25 and 26. 612 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD At the June 25 session, the Company presented proposals on subcontracting, jury duty, bereavement leave, dental insur- ance, and pension. The Union presented counterproposals on management rights, pension, and holidays. Although the record does not contain a complete company proposal for grievance-arbitration for June 25, the evidence indicates that the Company submitted such proposal on that date. On subcontracting, the Company proposed that it would reserve the right to subcontract work performed by unit em- ployees, and the Union would waive any right to bargain over company decisions to subcontract such work, or the ef- fects of such decisions. However, the Company would en- deavor to provide work for bargaining unit employees, sub- ject to cost and other considerations. Felici testified that this proposal was a response to the Union’s counterproposal to exclude subcontracting from management rights. However, the Company’s proposal did not, in substance, change the Company’s initial proposal to include subcontracting under management rights. The parties discussed subcontracting at the June 26 session, but did not reach agreement. On jury duty, the Company proposed compensation for regular full-time employees, as provided under current com- pany policy, but with added restrictions. The employee would be required to give immediate notice upon being sum- moned, obtain company approval, and call in for work if jury duty was completed during the employee’s shift. The Com- pany agreed to delete the requirement for approval, and the parties signed off on the Company’s jury duty article as so modified. On bereavement leave, the Company’s proposal tracked current company policy. The parties signed off on the Com- pany’s proposal. On dental insurance, the Company proposed to continue coverage under its current plan for regular full-time employ- ees. However, the Company would reserve the right to uni- laterally adjust copayment amounts after June 30, 1993. There was no agreement at this time. On pension, the Company proposed continued coverage under its retirement plan. However, the Company would re- serve the right to unilaterally change the plan, and the Union would waive any right to bargain over the change or its ef- fects. The Union counterproposed to accept the Company’s proposal, with the proviso that if the Company terminated the plan during contract term, the Company would, on re- quest, negotiate with the Union concerning a plan. There was no agreement. On grievance-arbitration, the Company presented its pro- posals concerning arbitration. The Company proposed, in sum, to reserve the right to appeal the arbitrator’s decision, i.e., arbitration would not be final and binding. The arbitrator could not alter discipline if the arbitrator found that the al- leged act or omission involving the grievant occurred, and could not substitute his judgment for the Company’s business judgment. Muller testified that nothing was said about costs of arbitration. However, his notes indicate that at the June 26 session, arbitration was a sticking point, and that the Com- pany proposed to drop ‘‘loser pays’’ if the Union agreed that the arbitrator could not modify discipline. I find that this oc- curred, and that the Company initially proposed that the loser would pay the costs of arbitration. On June 26, the Union presented a counterproposal on grievance-arbitration. The Union revised language from its initial proposal, including a narrowed definition of a griev- ance. However, the principle elements of the Union’s pro- posal, including those on which the parties differed, re- mained intact. Grievable matters would include discharge and suspension, which would begin at 2. Arbitration would be final and binding, the arbitrator could alter discipline, and the parties would share arbitration costs. There was no agree- ment on grievance-arbitration. On sick days, the Union proposed to modify its June 19 counterproposal to exclude part-time employees. The parties agreed on language concerning calculation of sick pay, and employees receiving workers’ compensation benefits. The June 25 session was lengthy, but the sessions of June 25 and 26 resulted in only a few minor agreements. On June 26, the Company restated its categorical opposition to union security and dues checkoff, asserting again that these were matters of employee choice. Uniatowski said that the em- ployees would not ratify a contract which did not include union security and checkoff. C. Alleged Unilateral Denial of Wage Increase to Unit Employees, and the Second Phase of Negotiations (July 8 through November 9) By letter dated June 25, Company President Pepper in- formed the hospital employees that they would receive a 4.5- percent wage increase, effective June 29, but that the in- crease would not apply to ‘‘employees involved in collective bargaining.’’ The parties stipulated that in July 1992, the Company gave all its employees, except the unit employees, an across-the-board wage increase of 4.5 percent. Company Assistant Director of Human Resources Felici testified that he told the Union about the wage increase at either the June 25 or July 8 bargaining session. Muller testi- fied that he learned of the increase sometime after it was granted, but before the July 8 session. In light of their testi- mony, it is evident that the Union did not receive notice of the increase prior to Pepper’s announcement to the employ- ees, and possibly not prior to the effective date of the in- crease. Felici and Guardiani testified in sum that when they told the Union that nonunit employees would receive the increase, the Union did not object. However, the question of whether nonunit employees received an increase was not a matter of concern to the Union. The Company did not ask the Union whether it objected to unit employees either receiving, or not receiving, the across-the-board increase. As will be dis- cussed, the Company was equivocal about this matter when it presented its wage proposal at the July 8 session. Company Assistant Human Resources Director Felici and Company Human Resources Director Bramble testified in sum as follows: In April 1992, the Company conducted its annual study of area wage surveys. On the basis of that study, the Company prepared a plan which proposed to give a 4.5-percent across-the-board wage increase to all non- bargaining unit employees. On June 16, the Company’s board of trustees approved the plan. I do not credit the testimony of Felici and Bramble that the Company decided in 1992 to grant an across-the-board wage increase. In light of the Company’s December 3, 1991 letter to the Union, I find that as of 1992, the Company had an established policy of annually granting such increase, leaving open only a determination as to the amount. If the 613 CHESTER COUNTY HOSPITAL Company did not have such a policy, then the December 3, 1991 letter constituted a misrepresentation as to company policy. At the July 8 bargaining session, the Company presented its wage proposal, although it had not yet presented all of its noneconomic proposals. The wage proposal may fairly be described as a masterpiece of obfuscation. The Company proposed, in sum, starting rates for each of the job classifications under its June 19 proposal, based on annual progression over a 4-year period. The proposal pur- ported to factor a 4.5-percent increase into the rates. The Company further proposed that unit employees presently earning above the maximum of the described scales would not be eligible for an increase. The Company also proposed that progression through the established rate range would be subject to a successful annual appraisal by the employee’s supervisor. The appraisal would not be subject to grievance- arbitration. Management would set rates for new employees, within the pertinent job classification range, based on their skills and years of experience. As indicated by the above-described provisions, the Com- pany’s proposal would vest in the Company broad and unreviewable discretion in establishing wage rates for both new and current employees. Also as indicated, the proposal referred to ‘‘starting’’ rates. However, the text of the Compa- ny’s proposal tends to indicate that these were actually maxi- mum rates. The Company’s proposal was silent as to whether employees currently making more than their appropriate rate under the proposal would be red circled, i.e., frozen. Felici testified that Company Chief Negotiator King said that they would be red circled. Muller testified that he did not recall such a statement. I credit Felici, in that at some point, King probably expressed such an opinion. However, in the absence of any such provision in the Company’s proposal, and in light of the Union’s subsequent (October 30) proposal for red-circling, I find that the parties did not have an under- standing in this regard. A comparison of existing unit wage scales (effective July 1, 1991) with the Company’s proposal indicates that the Company was generally proposing lower wage scales. As discussed, Felici testified that he could not tell from the Company’s proposal, whether unit employees were currently making more, less, or the same as that provided in the Com- pany’s proposal. That would depend on their present step. Felici testified that it was his understanding that 15 employ- ees, comprising about three-fourths of the unit, were cur- rently making more than the rates proposed for them by the Company. The remaining employees might be eligible for wage increases, although, under the Company’s proposal, this would be subject to company discretion. As discussed in connection with shift differential, the Company presented conflicting testimony concerning the basis for its wage proposal. Felici testified that the proposal was based on area wage surveys. Guardiani testified that he based the proposal on his knowledge of wages at Pottstown Hospital. Felici and Bramble conceded, in sum, that some categories of employees were paid more than prevailing area wage rates. Bramble testified, in sum, that although the Com- pany annually reviews area wage rates, the Company to his knowledge has never reduced employee pay, but has some- times increased wage rates. The Company never asserted that its wage, benefits, or other proposals were based on the Company’s economic circumstances. The Company’s assertion, or implication, that a 4.5-per- cent general increase was included in its wage proposal, was plainly a sham. A wage increase means just that, namely, an actual increase in pay. Indeed, Bramble conceded as much. Bramble testified that after the Company lowered the pay scale for its cooks, the affected cooks were red circled, and in addition, received a 1-percent bonus, which the Company gave in 1993 in lieu of an across-the-board general increase. The Union’s wage proposal had been on the table since the first bargaining session on March 17. The Company’s wage proposal was so complex and confusing that the Union could not intelligently evaluate or respond to that proposal without reviewing the records, including step, length of serv- ice, qualifications, and performance record of each unit em- ployee. Therefore, it is not surprising that the Union did not submit a second wage proposal until it presented its second comprehensive contract proposal on October 30. At the July 8 session, the Company also presented its ini- tial proposals on job stewards and initial employment (proba- tionary) period. On job stewards, the Company proposed, in sum, that stewards would not be compensated for time spent on stew- ard functions. The Company explained that it had a ‘‘philo- sophical problem’’ with paying stewards to investigate and process grievances. The Company also proposed tight restric- tions on steward movement and activity. The steward would be required to fill out a special timesheet for steward activ- ity, obtain permission from his supervisor to engage in stew- ard activity or leave his department to engage in such activ- ity, obtain permission from the head of another department (if he wished to enter that department on steward business), and explain the purpose of his business, and report back to his supervisor on completion of steward business. Steward business was defined as ‘‘processing grievances,’’ and noth- ing else. The Company also proposed that it have ‘‘sole dis- cretion’’ to discipline stewards for violating the no-strike clause of the contract. The Union protested that the Company’s proposed restric- tions on job stewards were ‘‘onerous.’’ The Company re- sponded that the maintenance unit had a small staff, unit em- ployees worked throughout the Hospital, and the Company needed accountability. The Company agreed to inclusion of a Weingarten clause (right to have steward present at dis- ciplinary hearing) and definition of steward duties to include grievance investigation, dues collection, and transmission of union messages. On initial employment period, the Company proposed, in sum, continuation of its present policy, with sole discretion in the Company to terminate, suspend, or discipline proba- tionary employees. On grievance-arbitration, the Company proposed language which tightened the time limits on proc- essing of grievances. The parties signed off on this language. On subcontracting, and holidays, the Company presented proposals which did not change its earlier proposals. The Union presented a counterproposal on subcontracting which substantially capitulated to the Company’s position. The Union proposed, in sum, to accept the Company’s proposal, with a proviso that before subcontracting work which would result in a layoff of unit employees, the Company would ‘‘meet and discuss’’ such subcontract with the Union, i.e., 614 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD without any bargaining obligation. The parties tentatively so agreed, and signed off on subcontracting at the next session on July 22. On management rights, the Company proposed to permit adversely affected employees to invoke the griev- ance-arbitration procedure with respect to company actions under the Americans with Disabilities Act. At the July 22 session, the Company complained that unit employees were violating the Company’s no-solicitation pol- icy by trying to organize employees on working time or in patient care areas. Union Secretary-Treasurer Lehman angrily replied that the Union was not interested in organizing nonunit employees, and questioned why the Company was unwilling to accept the Union’s proposed boilerplate lan- guage. There was a prolonged argument which had a disrup- tive effect on the meeting. The Company presented its initial proposals on leave of absence without pay or benefits, and visitation. The parties signed off on the former, and as indicated on subcontracting. On visitation, as with job stewards, the Company proposed tight restrictions on union activity. Union visitation would be limited solely to handling of grievances, would require ad- vance appointment and approval, and be limited from 8:30 a.m. to 5 p.m. Union representatives might be prohibited from any solicitation or distribution. The Union would be provided with one bulletin board, but notices would require company approval, be limited, in sum, to business notices, and could not contain anything political, controversial, or critical of the Company or any person. The proposal also in- cluded company restrictions on employee solicitation and distribution. As with stewards, the Union characterized the proposed article as ‘‘onerous.’’ On alteration of contract and waiver, the Company pro- posed a broad zipper clause, which would permit the Com- pany to unilaterally eliminate or change past practices or local privileges. This was the third time, since the April 9 session, that the Company shifted away from its indicated agreement with the Union’s concept, by proposing terms more favorable to the Company. Nevertheless, the Union capitulated, and the parties signed off on the Company’s July 22 proposal. On management rights, the Company presented a typed proposal which did not vary from the Company’s previously stated position. The proposal incorporated by reference, the parties’ agreement on subcontracting. The Union capitulated, and the parties signed off on the Company’s proposal. As the article purported to give the Company unrestricted rights, among others, to suspend and discharge unit employees, it would appear that employees would not have the right to in- voke any grievance procedure with respect to such action. The Union accepted this proposal, notwithstanding its prior assertion that the unit employees were principally concerned with job security and their need for a grievance-and-arbitra- tion procedure. On job stewards, the Company adhered to its previously stated positions, except to add additional language on dis- ciplinary hearings, which would restrict participation of the steward at such hearings. There was no agreement. Muller’s notes indicate that the only problem was pay for stewards. On grievance-arbitration, the Company presented a pro- posal which did not materially vary from its previously stated positions. There was no agreement. On no-strike no lockout, the Company adhered to its pre- viously stated positions. The Union counterproposed to ac- cept part of the Company’s proposal, including definition of the job steward as a union agent, and Company right to in- voke grievance and arbitration in the event of a violation. At the 10th bargaining session, on July 23, the Company presented its proposal on union recognition, i.e., the article to define the unit about which the parties presumably had been negotiating for more than 4 months. The Company pro- posed to exclude from the unit, part-time employees who worked less than 32 hours per (2 weeks) pay period. As the only regular part-time employee in maintenance worked a 15-hour week, this would operate to exclude him from the unit. The Company also proposed a formula under which temporary, casual, seasonal, and student employees, to the extent that they numbered more than four, would be included in the unit. As indicated, the Board certified a unit which consisted of ‘‘all full time and regular part time’’ skilled maintenance and groundskeeping employees, ‘‘excluding all other employees.’’ Therefore, the Company was proposing to alter the certified unit. On suspension and discharge, the Company proposed a clause which provided that disciplinary notices could remain in effect for 1 year. The Company did not present its pro- posed complete article at this time. The Union accepted, and the parties signed off on, the Company’s proposed articles on job classifications and initial employment. The parties discussed, but did not reach agree- ment on the Union’s proposed primary strike-primary picket line exception to the no-strike clause. The parties next met on August 25. On grievance-arbitra- tion, the Company presented a proposal which did not change its previously stated positions, except that the Com- pany proposed that the parties share the expenses of the arbi- trator. Muller noted that the Company adhered to its position on company discretion (‘‘In the opinion of the Hospital’’). The Union agreed to the Company’s proposal, and the parties signed off on grievance-arbitration. On layoff and recall, the Company modified its proposal to apply to reductions-in-force of more than 14 days. As dis- cussed, the proposal remained less favorable to the unit em- ployees than current company policy. There was considerable discussion. The Union said they were unhappy about giving the Company everything, and would have to sell the griev- ance-arbitration proposal to the employees. Nevertheless, the Union agreed, and the parties signed off on this proposed ar- ticle. On visitation, the Company adhered to its previously stat- ed positions, except to propose that stewards be compensated for scheduled time spent attending meetings called by the Company. The Union agreed to the Company’s proposal, and the parties signed off on visitation. The Company presented its complete proposal on suspen- sion, discharge, and resignation. The Company proposed that: ‘‘Discharge or suspension must be for just cause.’’ However, the Company did not propose to include such language in the management-rights clause. The Company proposed to have discretion to retain disciplinary notices for more than 1 year (in place of its prior proposal that the Company and the Union could agree to such extension). The Union argued that in a grievance proceeding, the Company could present evi- dence of an employee’s prior record, even with respect to 615 CHESTER COUNTY HOSPITAL disciplinary notices which were no longer in effect. The Company rejected this argument. The Company agreed to the Union’s proposal to insert examples of cases warranting ex- tended retention of disciplinary notices, and to afford the Union the right to examine the employee’s file in such cases. The Union agreed to the Company’s proposal as so amended. On October 7, the parties signed off on suspension, dis- charge, and resignation. At the next session on September 2, the parties signed off on the Company’s dental insurance proposal. The Company also presented its proposal on health insurance, proposing, in sum, to continue in effect the Company’s current plans. (The parties previously discussed health insurance at the June 25 session.) The plans provided for coverage for regular full- time employees, and company payment of one-half of the monthly premium for regular part-time employees working at least 32 hours per pay period. Therefore, the only regular part-time employee in the unit would not be entitled to cov- erage. Nevertheless, the Union agreed, and the parties signed off on the Company’s proposal. On holidays, the Company proposed, in sum, to tighten the requirements for a weekend holiday, by requiring that the employee give 4 weeks’ advance notice. The employee hand- book contained no such requirement. There was no agree- ment. The Union presented a counterproposal on recognition. The Union proposed to include regular part-time employees working 31 to 80 hours per pay period. However, the present part-time employee (working a 15-hour week) would be red circled. The Union also proposed, in sum, to accept the Company’s proposal on nonregular part-time employees, but with time limit on such status. The Union’s counterproposal constituted significant movement toward the Company’s pro- posal. However, there was no agreement. The parties also discussed other unresolved issues, includ- ing union security, checkoff, overtime, and job steward lan- guage, without reaching agreement. Felici testified that the Company expected, but did not receive, union proposals on tools, replacement on call-outs, and days off. At the close of the September 2 session, Union Counsel Muller and Union Vice President Uniatowski told Company Attorney King they were concerned about the pace of nego- tiations. They said the Union wanted negotiations completed by November 2, and would send a letter in this regard. By letter dated September 3, Muller informed King that the Union obtained International strike approval, and that he hoped a strike would not be necessary, but the Union was setting a November 2 deadline on negotiations. By letter dated September 15, King responded that the Company would continue to negotiate, and he hoped there would be no strike. The parties next met on October 7. They signed off on nondiscrimination and military service articles. Both articles simply confirmed unit employee rights under law. The par- ties discussed some issues in dispute, without movement or agreement. The Union said they read the Company’s wage proposal, but did not have an opportunity to review how the proposal would affect each unit employee. The Union said that if the Company had not changed its position on any- thing, there was nothing to discuss. By letter dated October 22, Muller gave notice to the Company, pursuant to Section 10(g) of the Act, of the Union’s intent to picket and strike the Company, effective as of November 2. Muller added that if negotiations were suc- cessfully concluded by that date, the notice would be with- drawn. During the period of October 27 to 30, the Company placed newspaper advertisements for unit positions, i.e., for replacements in the event of a work stoppage. The advertise- ments indicated wage rates comparable to those currently paid by the Company, i.e., higher than those proposed by the Company in the negotiations. Felici testified that the Com- pany received about 750 applications. None of the applicants were hired. The parties next met on October 28. There was consider- able discussion on no-strike no-lockout. The parties also dis- cussed job steward pay, and in Felici’s words, ‘‘open shop.’’ The Union inquired about posting of union notices. King re- minded Muller that the parties signed off on visitation on August 25. The balance of the meeting was devoted prin- cipally to the prospect of a strike. The parties had previously agreed to a 48-hour waiting period before giving information to the media. The Company wanted to change this agree- ment, in view of the Union’s strike notice. The parties next met on October 30. This was Union Steward Donovan’s last session. The Union began the ses- sion by presenting its second comprehensive contract pro- posal. The proposal included significant concessions in most major areas of dispute. On wages, the Union proposed, in sum, to accept the Company’s July 8 proposal, with certain modifications. Em- ployees making above the maximum of their pay scale would be red circled. All unit employees, including those red cir- cled, would receive a 4.5-percent wage increase, effective as of the date of the July 1992 general increase. The appraisal procedure would not be exempted from grievance-arbitration. Three unit employees (Hoxter, Ireson, and Phillips) would be placed in job classification I instead of classification II. The unit would retain the present shift differential. On union security and checkoff, the Union adhered to its proposal for checkoff, coupled with an ‘‘agency shop’’ pro- posal. The Union proposed, in sum, that present union mem- bers would have to remain members during the contract term. The Union told the Company that all but one of the unit employees were union members. Muller testified that he considered this proposal to provide for a modified union shop, and that the Union submitted the proposal in response to the Company’s position that it did not want to force any- one to join the Union. On pensions, holidays, and recognition, the Union stood by its counterproposals, respectively, of June 25, June 25, and September 2. However, the record does not reflect any prior union counterproposal on holidays. On sick days, the Union proposed acceptance of its June 25 counterproposal, including the agreed-on language on calculation of sick pay and employees receiving workers’ compensation benefits. On overtime, the Union proposed to accept the Company’s June 19 proposal (actually presented on May 27), with the qualification that overtime calculation would conform to any changes in the employee handbook. Muller testified that he made this proposal in response to the Company’s assertion that they were in the process of revising the handbook. On vacations, the Union proposed, in sum, to accept the Company’s proposal, provided that the Company agreed to 616 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD give vacation benefits to part-time employees in accordance with the employee handbook, and delete the requirement that employees obtain a replacement for weekend vacation days. On seniority, the Union proposed, in sum: (1) seniority rights for both full-time and part-time employees; (2) the Union’s proposal that opportunities and security would in- crease with seniority, but ‘‘unless modified or covered by an- other (contract) provision,’’ (3) the Union’s proposed lan- guage on break in seniority, with modification as to layoffs (8 months rather than 3 years, as the cutoff), and (4) the Union’s proposed language on seniority rank and posting. On job stewards, the Union proposed to accept the Com- pany’s July 22 proposal, with a broadened definition of dis- ciplinary hearings at which a steward could be present. On no-strike no-lockout, the Union proposed to accept the Com- pany’s July 22 proposal, without qualification. The Union further proposed, in sum, to resolve other mat- ters on the basis of the prior signoffs. The Union proposed a 1-year contract (October 30, 1992, to October 31, 1993). The Union also raised the matter of tools. However, the Union’s position in this regard constituted more of an inquiry rather than a contract proposal. The Union questioned the Company concerning its policy, asserting the Union’s view that if personal tools were required, the Company should pay for them, but if the tools were personal property, the employ- ees should be permitted to take them home. The Union stated that its comprehensive contract proposal was not a final offer. In sum, the Union proposed to make major concessions in an effort to reach a contract, including acceptance of terms and conditions less favorable than those afforded to nonunit employees. The Union proposed to accept reduced wage scales for unit employees, with no pay increase other than the 4.5-percent across-the-board increase. The Union pro- posed to accept such bitter pills as no compensation for stew- ards on union business, and tight restrictions on their activi- ties, no primary strike-primary picket line exception to the no-strike article, and a largely symbolic seniority article. The parties tentatively agreed on job stewards and no- strike language (as indicated, the Union proposed to substan- tially or totally accept the Company’s proposals on these matters). The parties engaged in considerable discussion over the Union’s ‘‘agency shop’’ proposal. Felici testified, in sum, that he did not understand the proposal. According to Felici, he could not tell the difference between the Union’s proposal and a ‘‘closed shop.’’ Felici testified that he understood a closed shop as one in which new hires would become union members. Felici’s assertions are incredible. The Company’s chief ne- gotiator was also its counsel. As anyone with a modicum of knowledge of labor law would promptly recognize, the Union, although mislabeling its proposal, was in substance proposing a maintenance-of-membership clause. Indeed, Felici indicated in his notes that he clearly understood what the Union was proposing. It is evident that the Company’s professed confusion was simply filibustering. Felici and Guardiani, in their testimony, also professed in- ability to understand the Union’s wage proposal. However, almost in the same breath, they indicated that they did under- stand the proposal, specifically, that the Union was proposing to accept the Company’s proposed wage scales, with employ- ees above the maximum for their scale being red circled, coupled with a 4.5-percent wage increase. The parties reviewed the Union’s proposals. The Company was generally noncommittal, although at one point indicating they wanted a contract of more than 1 year’s duration. King said he would take the Union’s comprehensive proposal to the Company. He added that he thought the Union made good movement, and the parties were close to the area where they could reach agreement. By the end of the meeting, Muller was under the impres- sion that the Company was pleased with the Union’s propos- als. In light of King’s statement, the Union announced that it was withdrawing its notice of intent to strike. The parties agreed to meet next on November 9. At the November 9 session, the Company delivered a rude shock to the Union. The Company presented, for the first time, a contract proposal on CQI, a second proposal on pen- sions, and third a proposal on vacations. On CQI, the Company proposed in sum that unit employ- ees would be required to participate in the program, subject to the Company’s determination; the job steward could not serve as a team (QIT) leader; the Company would oversee the program; the team could discuss terms and conditions of employment, but not change the contract; and the CQI pro- gram would not be subject to the grievance procedure. On pensions and vacations, the Company submitted pro- posals which did not materially change its previously stated positions. The Company adhered to its positions that the Union waive any rights to bargain over changes in or termi- nation of the pension plan, or the effects of such changes or termination. On vacations, the Company adhered to its posi- tion that employees requesting weekend vacation obtain a qualified replacement (if possible). During the meeting, the Company offered to agree to bar- gaining over a successor pension plan, if the Union accepted the Company’s proposal on overtime. The Company also of- fered to agree to a 4-percent vacation bonus for regular part- time employees (as provided in the employee manual) if the Union agreed to the 4-day minimum for paid sick days. The Union presented another comprehensive contract pro- posal. The Union stood by its October 30 proposals on most issues, but made further concessions in some areas. On vaca- tions, the Union proposed to accept the Company’s require- ments for weekend vacation days, provided that unit part- time employees received the same vacation benefits as nonunit part-time employees. On holidays, the Union pro- posed, in sum, to accept the Company’s proposal (with re- strictions on use and no benefits for part-time employees) provided that full-time unit employees received the same per- sonal day benefits as nonunit employees (under the employee handbook). On sick days, the Union proposed, in sum, to ac- cept the Company’s proposal, as modified and agreed, but without the 4-day minimum. On recognition, the Union pro- posed a modification to its September 2 counterproposal. The parties could agree to extension of initial employment of nonregular employees, and neither party would unreasonably withhold consent. With respect to tools, the Union stated that it was willing to work out an ‘‘equitable solution.’’ The Union rejected the Company’s CQI proposal with an em- phatic ‘‘[NO].’’ There was no further movement from either side. The Company’s rejection of any form of union security or check- 617 CHESTER COUNTY HOSPITAL off, coupled with its CQI proposal, and evident preparations for a strike, prompted angry outbursts from the union side. Secretary-Treasurer Lehman asserted that the Union would be working for nothing if there were an open shop. He asked how the Company would like it if the Union bussed indigent patients from Philadelphia and Chester to the Hospital’s doorstep. He told the Company to ‘‘take your CQI and shove it.’’ He said he was tired of accusations against the Union. One union representative suggested that the Union could pull up a big trailer with a union logo in front of the Hospital. Muller, the Union’s chief negotiator, took a moderate tone. He asserted that the Union was not in the business of strik- ing, but just wanted an agreement. He said that stewards should be team (QIT) leaders. Muller asked Company Attorney King why the Company would not agree to ‘‘me too’’ on overtime, vacation, and sick days, i.e., the same terms and conditions enjoyed by nonunit employees. King responded that the Company had given more in some areas than was enjoyed by nonunit employees, and that the Company’s policy on overtime was wrong and probably would change. King added that if the Company wanted to hurt the Union, they could have made other pro- posals. King’s explanation for the Company’s position was pal- pably false. The Company never revised its overtime policy, or otherwise reduced wages or benefits as set forth in the employee handbook. In a letter to all employees, dated No- vember 24, Company President Pepper declared unequivo- cally and emphatically: ‘‘We do not have plans to change any benefit in our handbook unless it is a change that bene- fits you’’ (emphasis in original). Meanwhile, in the negotia- tions, the Company was steadfastly proposing reduced wage rates and reduced rates or benefits with respect to shift dif- ferential, overtime, sick days, vacations, and holidays. The Company also steadfastly proposed more stringent standards for such benefits and other benefits (jury duty). In no area of wages, hours, and benefits, did the Company offer or agree to any term or condition which was even slightly supe- rior to those in effect under current company policy. With respect to nonmonetary matters, e.g., job security and union representation, the Company steadfastly adhered to proposals which would deprive the unit employees of rights which they would have enjoyed in the absence of any con- tract. The Union would have no right to bargain, or the em- ployees to utilize the grievance procedure, in such critical areas as subcontracting, suspension, and discharge and wage rate progression. The unit employees would have no right to refuse to cross a primary picket line. In light of the Compa- ny’s proposed broad management-rights article and other provisions relating to management discretion, the grievance- arbitration procedure would be largely devoid of any sub- stantive significance. These matters will be further discussed at a later point in this decision. In view of the foregoing fac- tors, and my previously discussed findings with respect to the Company’s proposals on shift differential, sick days, va- cations, and holidays, I find that the Company’s proposals, including overtime, insofar as they offered lesser benefits or stricter standards than those currently in effect under com- pany policy, were not made in good faith. With regard to the Company’s CQI proposal, the Company offered varying explanations. Felici testified that the Com- pany decided to formulate and present the proposal, based on the parties’ discussion of the Du Pont case at the May 27 session. Felici added that the Company wanted maximum participation. Guardiani testified that the Company was con- cerned because the unit was the only department not partici- pating in the CQI program, and was also concerned because the Union filed an unfair labor practice charge alleging that the Company engaged in direct dealing with employees con- cerning tool policy. The Company’s explanations do not withstand scrutiny. By May 28, the parties had reached an understanding that the CQI program was voluntary, that the program was not a sub- ject for contract negotiation, and that the union steward could be (and was in fact chosen as) team leader. At no time prior to November 9 did the Company indicate any change in this position, or even indicate that it was considering such change. The Company’s November 9 proposal constituted a viola- tion of the parties’ understandings. By May 28, the Company already knew that the unit employees had dropped out of the CQI program, and that Union Steward Donovan had raised a question about the legality of the program. If the Company were acting in good faith, it would make no sense for the Company to wait more than 5 months, and then, without warning, spring this proposal on the Union. Moreover, even if the Union accepted this proposal, such agreement would not preclude any employee from filing an unfair labor prac- tice charge, alleging that the program was unlawful, under Du Pont, with respect to nonunit employees. Moreover, the Company offered no explanation for its pro- posal that the job steward could not serve as team leader. That proposal, particularly when considered in the context of the Company’s reference to the unfair labor practice charge, tends to indicate that the proposal was designed as punitive and humiliating to the Union. By the time the parties adjourned on October 30, the Union had made major concessions. By reason of such con- cessions, the parties appeared to be moving toward a con- tract. The Company’s CQI proposal marked a turning away from such agreement, and the Company was well aware of this fact. The Company was well aware, from the parties’ prior discussions and prior events, that the Union could not accept such proposal, or seriously consider it, and still main- tain the respect of the unit employees. I find that the Company presented its CQI proposal in order to thwart the prospect that the November 9 session might result in further union concessions or other discussions which could result in agreement on a contract. I find that the proposal was not made in good faith, and may properly be considered as evidence that the Company was negotiating without intent to reach agreement. The November 9 meeting ended, in Felici’s words, ‘‘nega- tively.’’ Muller testified that he was disappointed at the lack of company reciprocation. When Muller asked how the initial employment article fit in with the Company’s proposal on seniority (i.e., no seniority for part-time employees), King answered brusquely that ‘‘it didn’t.’’ The Federal mediator said he would schedule the next meeting. He did not do so. 618 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 3 At the November 9 session, the Company complained that the Union had not paid its share of the negotiation expenses. This matter will be discussed at a later point in this decision. The parties next met on March 29, 1993, under cir- cumstances which will be discussed.3 D. Alleged Evidence of Company Animus Toward the Union, and Alleged Unlawful Surveillance of Employee Union Activity Theresa Leo was in charge of the Company’s food service department from about 1989 until December 1993. She con- ducted periodic meetings of department supervisory person- nel. Leo testified that the meetings were designed to ‘‘keep the supervisors informed so we’re all doing the same thing, for consistency, really.’’ Leo conducted one such meeting on July 29, 1992. Assist- ant Department Director Bonnie McLaughlin took minutes of the meeting. Copies of the minutes were distributed to all su- pervisory personnel. Leo kept a copy of the minutes in the department file. Item 17 of the minutes stated as follows: 17—Unions—Educate staff on unions. We are per- mitted to give examples, opinions. (i.e. ‘‘I wouldn’t join a union because of dues and someone else speaks for you regarding policies and procedures’’) We (mgr/supv) are not to acknowledge union cards or offi- cers. If a union representative (outside CCH) ap- proaches, contact Human Res. or Security. Let staff know why you wouldn’t sign a card—they are legally binding from day signed & rights are for- feited at that time. Item 17 continued on the next page, as follows: Unions (cont) Please keep an eye on our staff during working time if the[y] are speaking with Maint. for [more than] 5 min—this is a Quantity of Work issue. Maint can only speak to them on break time or when off the clock. The Company stipulated that the minutes were accurate. Leo, who was presented as a company witness, testified that the Company did not have a formal 5-minute rule, she felt that any conversation of more than 5 minutes was not a busi- ness conversation, she gave maintenance as an example, which could have applied to any conversation, and her re- marks concerned quantity of work, and were not related to the Union. However, this would not explain why her remarks were placed under the topic heading of ‘‘Unions.’’ Moreover, the minutes indicated that Leo referred only to conversations with maintenance employees. The minutes also indicated that Leo instructed that maintenance employees could speak to food service employees only on breaks or when off the clock, although the Company had no general rule prohibiting conversations between employees during companytime. In light of Leo’s testimony concerning the purpose of de- partmental supervisory meetings, I find that Leo’s remarks reflected company policy. I find that Leo’s remarks reflected a company policy and intent to isolate the maintenance em- ployees in order to prevent the spread of unionization. The Company recognized that the food service department em- ployees, in particular, were potentially receptive to unioniza- tion. I further find that Leo’s remarks at the meeting may properly be considered as evidence of the Company’s over- riding determination to prevent the spread of unionization at the Hospital, and that this goal governed its course of con- duct in the unit negotiations. The complaint alleges that on or about November 24, 1992, the Company by its security director, Kenneth Sensening, and by Assistant Director of Human Resources Felici, outside the Hospital, engaged in surveillance of its employees’ union activities, by taking photographs and vid- eotapes of those activities. Felici and Guardiani testified in sum as follows: In Sep- tember, when the Company heard rumors of a strike, the Company implemented contingency plans. Among other ac- tions, the Company drew a yellow line around, but about 20 feet within, its actual unmarked property line. The Company did not at any time post signs prohibiting trespassing on its premises. The hospital premises are open to the public, and persons routinely enter its premises without being checked. The Company does not care if the general public comes onto its premises. The Company has previously asked solicitors to leave its premises, but never photographed them. The Com- pany has a no-solicitation policy. However, the only such stated policy (contained in the employee handbook) purports to restrict only solicitation by employees. The Company’s premises, including a portion within the yellow line, contains a public easement (Marshall Street). Therefore, vehicles pro- ceeding on Marshall Street travel on company premises. The purpose of the yellow line was to enable a court to determine the propriety of an order enjoining the Union from trespass picketing. On November 24, Union Officials Muller, Lehman, and Uniatowski, accompanied by nonemployee union members, went to the hospital area for the purpose of distributing union literature. There were a total of 16 or 17 handbillers (not all at the same time). They posted themselves at three or four entrances to the hospital premises. The hospital premises oc- cupy more than 50 acres. In the morning, and again in the afternoon, they distributed, or attempted to distribute hand- bills to occupants of vehicles entering or leaving the prem- ises. Typically, there were four or fewer handbillers at each entrance. The handbills were addressed to the Company’s employees. The handbills asserted, in sum, that the Company was cutting union employees, including not giving union em- ployees a pay increase that other employees received, in order to keep other employees from joining the Union. They urged the employees to ‘‘join us.’’ The Union did not give the Company advance notice of the handbilling. Muller testified that the union officials be- lieved that the yellow line marked a property line, and there- fore instructed the handbillers not to cross the line. The handbillers usually, but not always, remained outside the line. On some occasions, they crossed over the line inadvert- ently, or in the course of distributing or attempting to distrib- ute the handbills. A videotape taken by Company Security Director Sensening, indicates that at one entrance, the handbillers might have blocked the view of exiting drivers if they remained outside the yellow line. Muller testified that none of the handbillers blocked in- gress or egress to the hospital premises. Felici, who was 619 CHESTER COUNTY HOSPITAL present, testified that the handbillers sometimes blocked en- trances. Muller testified that the handbillers moved only in response to vehicles, and did not engage in patrolling. No witness testified that the handbillers engaged in patrolling. Felici testified that in his opinion, the handbillers were not picketing. It is undisputed that Felici and Sensening videotaped and photographed still pictures of the handbillers, handbilling, and attempted handbilling. Videotaping and photograping of handbilling included, in some instances, vehicles and their occupants. Felici testified in sum as follows: At 6 a.m. on November 24, Sensening informed him of the handbilling. Felici went to the hospital premises. Although Sensening was videotaping and photographing the handbillers and handbilling, company President Pepper, Company Attorney King, and company chief operating officer Prisitis instructed him to do likewise. They told him to do so because the Company needed physical evidence of illegal activity, includ- ing trespassing. Felici had never previously operated a video camera, and admittedly, ‘‘was not an accomplished user of one of those.’’ Although he sometimes videotaped the handbilling, there were significant periods of time when he held the camera to his eye without pressing the ‘‘on’’ button, i.e., when he knowingly pretended to be filming when not actually doing so. Assistant Vice President Guardiani testified that the Com- pany treated the Union in the same way as any other solicit- ing organization. However, the Company never told the union handbillers that they were trespassing, or asked them to leave. As indicated, the Company never previously photo- graphed solicitors, whether or not they were on hospital premises. Guardiani’s assertions were patently inconsistent, and at least in part, incredible. On the same day as the handbilling, Company President Pepper issued a letter to the Company’s employees. Pepper stated the Company’s position on the negotiations and union organization. Pepper cautioned the employees that they should not sign union cards unless they were comfortable with what it meant for their future. Pepper added that the employees should know that union cards ‘‘can be considered public information.’’ This was the same letter in which Pep- per assured the employees that the Company did not intend to reduce their benefits. I do not credit the Company’s explanation for the conduct of Felici and Sensening in photographing and videotaping the handbillers and handbilling, and in pretending to do so. As indicated, Felici testified that they acted pursuant to legal ad- vice, in order to provide evidence of illegal activity, includ- ing trespassing. It is axiomatic that in order to establish a case of trespass, an attorney in such circumstances would ad- vise his client to inform the alleged offenders that they were trespassing, and request them to leave the premises. See 18 Pa. C.S. Sec. 3503. Nevertheless, although the Company contends that the union handbillers distributed literature on hospital premises, the Company never took such action. Company Officials Guardiani and Bramble testified, in sum, that company security personnel have previously requested solicitors to leave the hospital premises. The Company’s fail- ure to do so in the present situation was inconsistent with its purported concern to build a case against illegal union activ- ity. If the Company sought to obtain physical evidence of ille- gal activity, in order to make a case against the Union, it is unlikely that the Company would assign that task to a person who had no prior experience in operating a video camera. It would also make no sense, and serve no useful purpose, if that person, for significant periods of time, pretended to vid- eotape the handbilling without actually doing so. However, if the Company sought to intimidate its employees, and dis- courage them from taking union literature or otherwise mak- ing contact with the Union, then it would make sense to as- sign that task to a high-ranking personnel official like Felici, regardless of his lack of qualifications as a photographer. It would also make sense, for that purpose, for Felici to pretend to videotape the handbilling without actually doing so. As discussed, the Company determined to prevent further unionization among its employees, and toward that end, to discourage its unorganized employees from contact with the Union and the unit employees. I find that this was the Com- pany’s motive in photographing and videotaping the handbillers and handbilling on November 24, and in pretend- ing to engage in such conduct. This is not a case in which an employer, in an inconspicu- ous manner, simply and passively observes open union activ- ity. Rather, the Company, in a conspicuous manner, engaged in conduct which predictably tended, and was in fact de- signed, to intimidate its employees and thereby discourage them from receiving union literature. Therefore, the Com- pany violated Section 8(a)(1) of the Act by engaging in sur- veillance of employee union activity. New Process Co., 290 NLRB 704, 717 (1988), enfd. mem. 872 F.2d 413 (3d Cir. 1989). The Company further violated Section 8(a)(1) in cre- ating the impression of surveillance of union activity by photographing and videotaping the handbilling, and in par- ticular, by pretending to engage in such conduct. As the Company’s motivation for its conduct was unlaw- ful, it is immaterial whether the union handbillers, at times, entered onto company property, temporarily blocked en- trances, or otherwise engaged in unprotected conduct. Dayton Hudson Corp., 316 NLRB 85 (1995). The employees who were entering or leaving the Company’s premises had a statutorily protected right, if they wished, to accept union lit- erature. The Company, by its conduct, interfered with, re- strained, and coerced its employees in the exercise of that right. If necessary to determine whether the Union engaged in unprotected activity, I would find, first, that the Union did not violate the notice provision of Section 8(g) of the Act. Section 8(g) requires, in sum, that a labor organization give a 10-day notice ‘‘before engaging in any strike, picketing, or other concerted refusal to work at any health care institu- tion’’ (emphasis added). Here, the Union did not engage in or induce any employees to engage in a work stoppage, and there were in fact no work stoppages. The Union did not even engage in picketing. Rather, the Union engaged in pub- licity other than picketing, by distributing and attempting to distribute handbills to the Company’s employees. See NLRB v. Servette, Inc., 377 U.S. 46 (1964). I further find that the Union’s handbilling was substan- tially, if not totally protected conduct under the Act. The Company failed to establish that the Union engaged in ‘‘tres- passing.’’ As indicated, the company’s premises were gen- erally open to the public, the alleged company premises in- 620 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD cluded a public right of way, and the Company never told the handbillers that they were trespassing, or requested them to leave the premises. Evidence of temporary blocking of en- trances was at best isolated and inconclusive. Moreover, most of the photographing and videotaping was directed at clearly protected union activity, i.e., handbillers or handbilling outside of the yellow line, which did not involve any arguable blocking. Most significantly, as discussed, the employees were engaged in statutorily protected activity. E. Concluding Findings with Respect to the Alleged Failure to Provide the Unit Employees with the July 1992 General Wage Increase I find without merit the Company’s affirmative contention that the Union’s charge with respect to this allegation was not timely filed. The Union’s first amended charge, filed on November 30, 1992, alleged that the Company violated Sec- tion 8(a)(1), (3), and (5) of the Act, in part, by discriminating against bargaining unit employees in terms of wages and working conditions. That charge encompassed the present al- legation. Therefore, the present charge was timely filed. Addressing the merits, I find that the Company violated Section 8(a)(1) and (5) of the Act by unilaterally failing and refusing to grant the unit employees the July 1992 general 4.5-percent wage increase. The Company’s December 3, 1991 letter speaks for itself. As discussed, the Company un- equivocally informed the Union that it had an established policy of granting an annual across-the-board increase to all its employees. The Union promptly responded, in sum, that it anticipated the Company would continue that practice until a contract was reached. Nevertheless the Company, without any advance notice to the Union, or affording the Union an opportunity to bargain over the matter, proceeded to an- nounce to its employees, and then implement, a 4.5-percent general wage increase, excluding the unit employees. The Company thereby violated Section 8(a)(1) and (5). ‘‘An employer has a duty not to change past practices for employees who are represented by a union until it has bar- gained to impasse on that subject with the union.’’ Rocky Mountain Hospital, 289 NLRB 1347 (1988), citing NLRB v. Katz, 369 U.S. 736, 745–747 (1962); see also Central Maine Morning Sentinel, 295 NLRB 376 (1989). In particular, ‘‘an employer that has a practice of granting merit raises that are fixed as to timing but discretionary as to amount may not discontinue that practice without bargaining to agreement or impasse with the union.’’ Lamonts Apparel, 317 NLRB 286 (1995), citing Daily News of Los Angeles, 315 NLRB 1236 (1994). Here, the Company compounded its violation by fail- ing even to give the Union advance notice of its action. Talsol Corp., 317 NLRB 290 (1995); Century Wine & Spir- its, 304 NLRB 338, 347 (1991). This is not a case such as Postal Service, 261 NLRB 505 (1982), relied on by the Company, which involved wage in- creases ‘‘randomly given’’ at ‘‘irregular intervals.’’ The Company’s reliance on Winn-Dixie Raleigh, Inc., 267 NLRB 231, 235 (1983), is also misplaced. In Winn-Dixie, the em- ployer gave advance notice of its intentions, the parties were engaged in intensive negotiations over wages, the increases granted by the employer varied among job classifications, and the employer and union could not agree as to the amount of increase which would be applicable to the unit employees. In these circumstances, the Board held that the employer did not act unlawfully in failing to give an increase to the bar- gaining unit employees. In the present case, the Company and the Union had an express understanding that the unit em- ployees would receive the same general increase as that given to all other employees, the Company violated that un- derstanding, the Company gave no advance notice to the Union of its action, and the Company announced and imple- mented the increase before presenting its wage proposal, and before the parties had even began negotiations over wages. I further find that the Union did not, through the subse- quent negotiations over wages, waive its right to object to the Company’s unilateral failure to grant the 4.5-percent wage increase to the unit employees. As the Company failed to afford the Union prior notice and an opportunity to nego- tiate the matter, the Union, as of the July 8 bargaining ses- sion (when the Company initially presented its wage pro- posal), was presented with a fait accompli. Century Wine, supra. Moreover, the Company clouded the issue by taking the position that a 4.5-percent wage increase was incor- porated into its wage proposal. In these circumstances, the Union did not clearly and unmistakably waive its right to ob- ject to the Company’s unilateral failure and refusal to grant the unit employees an actual, not fictional, 4.5-percent wage increase. Indeed, the Union, through its October 30 and No- vember 9 proposals, maintained its position that the unit em- ployees were entitled to the 4.5-percent general wage in- crease, retroactive to July 1992. I further find that the Company’s course of conduct with respect to this matter may properly be considered as evidence of an overall failure and refusal to bargain in good faith with the Union. See Rocky Mountain Hospital, supra at 1348. In this regard, I find particularly significant, the Company’s ac- tions in violating its understanding with the Union, mislead- ing the Union, and failing to inform the Union of its inten- tions. F. Tentative Concluding Findings with Respect to the Company’s Alleged Overall Failure and Refusal to Bargain in Good Faith with the Union The complaint alleges in sum that the Company and the Union met in negotiations at various times from March through November 1992, and that during this period the Company made harsh and regressive proposals. The com- plaint further alleges that by its overall conduct, including the Company’s unilateral exclusion of the unit employees from the general wage increase, the Company failed and re- fused to bargain in good faith with the Union. As indicated, the complaint focuses on the negotiations during the period from March through November 1992. When the parties adjourned on November 9, no further meet- ings were scheduled, and there was no indication of further movement from either the company or the union side. The Federal mediator, who said he would schedule the next meet- ing, never did so. The Union sought recourse through other means. On November 23, the Union filed its initial unfair labor practice charge, followed by amended charges. On No- vember 24, as discussed, the Union sought, through handbilling, to enlist support from the Company’s unorga- nized employees. Thereafter, the Union sought to use its charges as a lever to resume negotiations. By letter dated February 25, 1993 (which will be discussed), the Union pro- posed, in sum, to withdraw its charges in exchange for con- 621 CHESTER COUNTY HOSPITAL cessions by the Company, including acceptance of the Union’s November 9 contract proposal. On March 29, 1993, the parties resumed negotiations. If there was good-faith bargaining between the parties dur- ing the negotiations from March through November 1992, then as of November 9, the parties were at least arguably at an impasse. In these circumstances, and in light of the com- plaint allegations, I shall at this point address the merits of the complaint with respect to the negotiations from March through November. If the Company bargained in good faith during this period, then the pertinent complaint allegations should be dismissed. If the complaint allegations are meri- torious, then I should next address the question of whether a remedial order would be warranted in light of the resumed negotiations in 1993. See and compare Fire Fighters, 304 NLRB 401, 403, 416 (1991). In determining the merits of an alleged overall failure and refusal to bargain in good faith, it is necessary to consider the totality of the evidence concerning the negotiations and the circumstances surrounding those negotiations. In making that appraisal, the Board and the administrative law judge cannot be limited as a practical matter, and are not limited to particular elements set forth in the complaint or otherwise argued by the General Counsel. The allegation of failure and refusal to bargain in good faith is complete in itself, as an alleged unfair labor practice. Griffin Inns, 229 NLRB 199 (1977); Lee Deane Products, 181 NLRB 1047, 1048 (1970). On consideration of the evidence, including matters pre- viously discussed, I find that the Company had at all times an overriding concern to prevent the spread of unionization at its facility. That concern governed its strategy in the nego- tiations. To achieve its goal, the Company entered the nego- tiations with a fixed determination to avoid reaching a con- tract with the Union. As part of its strategy, the Company advanced and adhered to harsh, regressive, and discrimina- tory proposals, and adamantly rejected union proposals, with- out any valid subjective or objective basis, advancing false reasons or no reasons at all, knowing that its positions were predictably unacceptable to the Union. The Company thereby failed and refused to bargain in good faith with the Union. As indicated, Felici testified with respect to the negotia- tions, that he neither knew nor considered how the Union or the unit employees would react to each company proposal. Rather, he (or the Company) would decide what was in the best interests of the Company and the Union. Felici added that he viewed the bargaining as a ‘‘give and take’’ process. Felici’s professed approach to the negotiations represented the antithesis of good-faith bargaining. In order to engage in good-faith bargaining, it is necessary to understand the wish- es of the other party, and to attempt, where feasible, to ac- commodate those wishes. In fact, the Company understood from the outset, the preferences and aspirations of the union and the unit employees. The Company was fully aware, from the preliminary discussions and the Union’s initial contract proposal, that the unit employees were generally satisfied with existing benefits and wages, but were concerned about job security. They wanted meaningful union representation, including a grievance-and-arbitration procedure, and some form of union security, coupled with dues checkoff. Knowing and understanding the unit employees’ wishes, the Company deliberately presented and adhered to proposals and positions which were plainly calculated to thwart those wishes. The Company proposed, for the unit employees, sig- nificant reductions or restrictions on existing benefits and conditions of employment. These included, as discussed, the Company’s proposals on shift differential, overtime, sick leave, holidays, jury duty, and layoff and recall. The Com- pany also proposed wage reductions for most of the unit em- ployees, although it had never reduced employee wages, and did not plead financial hardship. The Company advanced and adhered to such proposals, without any rational basis, ad- vancing false or pretextural reasons, or no reasons at all. Notwithstanding the unit employees’ desire for job secu- rity and meaningful union representation, the Company ad- vanced and adhered to proposals which would significantly deprive the Union and the unit employees of rights which they would have even in the absence of a contract. Under the Company’s proposals, the Union would have no rights to bargain over such critical matters as subcontracting, pen- sions, and wage rate progression. Employees could not grieve over discipline and discharge (under the management- rights clause), or refuse to cross a primary picket line. The Company’s proposals, when viewed in their entirety, ren- dered its agreement on a grievance-and-arbitration procedure largely meaningless. The Company’s professed indifference to the wishes of the Union and unit employees contrasted sharply with its dem- onstrated solicitude toward the wishes and attitudes of its un- organized employees. Shortly after the Union’s certification, and prior to commencement of negotiations, the Company initiated its intensive survey of employee attitudes. The Com- pany repeatedly expressed its determination to accommodate its employees’ preferences, and redress their grievances. The Company assured the unorganized employees that it would not change existing benefits, unless the changes benefited the employees. The Company pointedly informed the employees on June 25 that they, but not the unit employees, would re- ceive a 4.5-percent wage increase. The Company also imple- mented a grievance procedure for the unorganized personnel, which in some respects was superior to its proposals in the contract negotiations. The grievance procedure included mat- ters reserved to the Company under its management-rights proposal, e.g., suspension pending discharge. The Company further demonstrated its bad faith by its uni- lateral failure to grant the unit employees the general wage increase, and by its related course of conduct. That conduct, as discussed, included misrepresentations and failure to in- form the Union of the Company’s intentions. The Company also demonstrated its bad faith by present- ing its last-minute (November 9) CQI proposal. As dis- cussed, the Company repeatedly assured the Union that CQI was voluntary, and not a matter for contract negotiation. When, as a result of significant union concessions, the parties appeared to be moving toward a contract, the Company in- jected its mandatory CQI proposal into the negotiations, in- cluding its punitive proposal that the job steward could not serve as team leader. As discussed, the CQI proposal was not made in good faith, but was designed to thwart agreement between the parties. The Board certified the Union as representative of all full- time and regular part-time skilled maintenance and groundskeeping employees, excluding all other employees. Nevertheless, the Company adamantly adhered to its proposal on recognition to exclude the only regular part-time em- 622 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 The case authorities relied on by the Company are not in point. City of Charlotte v. Firefighters Local 660, 426 U.S. 283 (1976), in- volved a constitutional question, and not one arising under the Act. In Glomac Plastics v. NLRB, 592 F.2d 94, 97 (2d Cir. 1979), the court affirmed the Board’s determination that the employer failed to bargain in good faith. Other cases cited by the Company did not in- volve factual situations comparable to the present case. ployee, and to include in the unit, casual and other employ- ees who were neither full-time nor regular part-time employ- ees. The Company refused even to agree to the Union’s counterproposal to red circle the incumbent regular part-time employee. The Company, by insisting on changing the cer- tified bargaining unit, engaged in conduct violative of Sec- tion 8(a)(5) of the Act. NLRB v. Southland Cork Co., 342 F.2d 702, 706 (4th Cir. 1965); Beyerl Chevrolet, 221 NLRB 710 (1975). Therefore, the Company’s conduct may properly be considered as evidence of an overall refusal to bargain in good faith. It is also significant that notwithstanding union proposals concerning part-time employees (including reten- tion of existing benefits), the Company misled the Union by waiting until the 10th bargaining session, on July 23, to present its proposal on recognition. I further find that the Company’s adamant refusal to con- sider either checkoff or any form of union security dem- onstrates that the Company entered into the negotiations with a fixed determination not to agree to either, and further evi- dences overall bad-faith bargaining. The Company was well aware that dues checkoff and union security were matters of great importance to both the Union and the unit employees. Nevertheless, from the outset of the negotiations, the Com- pany asserted an unyielding position. The Company asserted, in sum, and adhered to its position, that its ‘‘philosophy’’ was that the unit employees should decide whether to join the Union, and that the Union should be responsible for col- lecting dues. The Company further asserted that it did not collect for other organizations, and would not start with union dues. In fact, the Company had no policy against collecting for other organizations. The Company makes deductions from employee paychecks for a multitude of items, including United Way contributions. When confronted with this fact, Director of Human Resources Bramble lamely explained that United Way contributions were voluntary, and the Company had been deducting for United Way for a long time. How- ever, dues checkoff is also voluntary. Union dues cannot be deducted from an employees’ paycheck unless the employee authorizes such deduction, and the Union’s checkoff proposal so provided. Whether the Company had been deducting for United Way for a long time or a short time was irrelevant. The Company’s records indicate that it reserves code num- bers for additional deductions, i.e., that it has a flexible pol- icy which provides and allows for new or additional deduc- tions. In its brief, the Company argues that it proposed, as an al- ternative to checkoff, that job stewards be authorized to col- lect union dues. However, in the negotiations, the Company never told the Union or took the position that it would agree to such authorization as a substitute for checkoff. Moreover, dues checkoff is not simply an accommodation to the Union. It is equally important as a convenience and benefit to the unit employees. Furthermore, the steward article, as proposed by the Company and as tentatively agreed to by the parties, was virtually useless as an effective means of dues collec- tion. The unit employees worked on three shifts, and worked throughout the Hospital. The article tightly restricted the steward’s movements and times when he could perform his union duties. In these circumstances, the proposed article did not provide a viable method for dues collection. This leaves the Company’s ‘‘philosophical’’ assertion that the Union should be responsible for collecting dues. In light of the Company’s overall course of conduct, including its un- lawful efforts to isolate the unit employees and insulate the unorganized employees from unionization, I find that the Company’s adamant position on checkoff was motivated solely by hostility toward unionization. The Union’s initial proposed union-security clause, provid- ing in sum for a ‘‘union shop,’’ was lawful. Electronic Workers Union v. NLRB, 41 F.3d 1532, 1538 (D.C. Cir. 1994). The proposed clause provided that it would be opera- tive only to the extent permitted by law. The Company, in the negotiations, never objected to the Union’s proposal on grounds that the proposal was unlawful. Rather, the Com- pany based its opposition solely on its alleged philosophy that the unit employees should decide whether or not to join the Union. In an effort to meet the Company’s stated objection, the Union proposed an alternative maintenance of membership clause, under which only those employees who had volun- tarily joined the Union, would be required to maintain their membership during contract term. The Company responded by filibustering, i.e., pretending not to understand the Union’s proposal, although the Company knew full well what it meant. The Company offered no new reason for re- jecting this proposal. In its brief, the Company suggests that it refused to con- sider or agree to union security because the Company had a good-faith doubt as to the Union’s continued majority status. However, in the negotiations, the Company never questioned the Union’s majority status, and never disputed the Union’s assertion that nearly all of the unit employees were union members. Such a belated assertion further tends to indicate a lack of good faith by the Company. In sum, for the reasons discussed, I find that the Compa- ny’s asserted positions with respect to dues checkoff and union security demonstrated that the Company was not bar- gaining in good faith. Where, as here, the employer ada- mantly opposes union security and checkoff on vague or gen- eralized ‘‘philosophical’’ grounds or questionable assertions of policy, the inference is warranted that the Employer en- tered negotiations with a fixed intention not to consider or agree to any form of union security or checkoff, and thereby violated Section 8(a)(5) and (1) of the Act. Hospitality Motor Inn, 249 NLRB 1036, 1040 (1980), enfd. 667 F.2d 562 (6th Cir. 1982), cert. denied 459 U.S. 969 (1982); Sweeney & Co. v. NLRB, 437 F.2d 1127, 1134–1135 (5th Cir. 1971); Rock- ingham Machine-Lunex Co., 255 NLRB 89, 107 (1981), enfd. 665 F.2d 303 (8th Cir. 1981); Carolina Paper Board Corp., 183 NLRB 544, 551 (1970).4 The Company further evidenced lack of good faith by its piecemeal approach to the negotiations, which predictably frustrated the pace of negotiations, and frustrated movement toward a contract. The Company never presented a com- prehensive proposed contract, or offered to use the Union’s 623 CHESTER COUNTY HOSPITAL 5 All dates in this sec. III,G are for 1993, unless otherwise indi- cated. comprehensive proposals as a framework for negotiations. In- stead, the Company, over a period of nearly 6 months, pre- sented its proposals on a piecemeal basis, in no coherent order, culminating in its last-minute CQI proposal. The Com- pany presented its job classification proposal before present- ing its wage proposal, and presented its no strike-no lockout proposal before presenting its proposal on grievance and ar- bitration. This approach further demonstrated a lack of good- faith intent to reach a contract. See Hotel Roanoke, 293 NLRB 182, 184–185 (1989); Preterm, Inc., 240 NLRB 654 fn. 3 (1979). G. The 1993 Negotiations Having determined that the Company failed and refused to bargain in good faith with the Union, I shall at this point re- view the resumed negotiations in 1993 in order to determine whether a remedial bargaining order is warranted in light of those negotiations. By letter dated February 25, 1993,5 to company counsel, the Union proposed in sum as follows: The Union would withdraw its unfair labor practice charges and give the Com- pany a release to date. Employees Kevin Ireson and Edward Hoxter (evidently terminated) would also give releases to the Company for conduct to date. The Company would reinstate Ireson and Hoxter to their former positions, make them whole for their losses, and accept the Union’s November 9 contract proposal. The parties thereafter resumed negotiations, meeting on March 29. This was Company Assistant Director of Human Resources Felici’s last session. The Company presented modified versions of its proposals on CQI and seniority. On CQI, the Company eliminated ref- erences to topics of discussion, and provided that the Union would receive copies of minutes. On seniority, the Company included provision for seniority rank and posting of a senior- ity roster. There were no other material changes. The Union accepted the Company’s seniority proposal. There was no agreement on CQI. The parties reviewed the Union’s October 30 comprehen- sive proposal. The Company requested a clearer definition of the Union’s ‘‘Agency Shop’’ proposal (as discussed, the Company understood that the Union was proposing a mainte- nance of membership clause). The Company continued to re- ject checkoff and any form of union security, whether union shop or maintenance of membership, asserting that it wanted nothing to do with locking in membership. The Union indi- cated a willingness to accept CQI in exchange for a modified union shop. On wages, the parties discussed red-circling, coupled with a 4.5-percent wage increase. There was no agreement. How- ever, with respect to establishment of rates and wage pro- gression, the Union agreed in principle to a company pro- posal that decisions could be grieved to the company presi- dent, but would not be subject to arbitration. The parties discussed, but remained in disagreement on, other matters, including shift differential, overtime, vacations, holidays, sick days, pension plan, contract duration, and placement of employee Phillips. The Company adhered to its offer to agree to a 4-percent vacation bonus for regular part- time employees, if the Union accepted the 4-day minimum for paid sick days. The Company rejected the Union’s Octo- ber 30 and November 9 counterproposals on vacations. The Union indicated a willingness to accept the Company’s pro- posal on recognition. The Company stated that it would ad- here to its practice of replacing personal tools broken on the job, although the plant operating manual provided otherwise. There was no disagreement on this. The parties next met on May 17. Bramble replaced Felici in the negotiations. At this session, the Union made numer- ous and significant concessions, signing off on the Compa- ny’s last proposals. The Company made no new substantive concessions. Muller testified that the Union made its conces- sions in order to narrow the areas of disagreement, but could not agree to all of the Company’s proposals. The parties signed off on the following company (last) proposals: vacations (with nothing for part-time employees), CQI, seniority (not for part-time employees), pension (with no union bargaining rights), job stewards, overtime (with ex- clusion of nonworktime in determining overtime), and no- strike no-lockout (with no primary picket line exception). The parties also signed off on a company proposal on tool storage, distribution, and inventory. The proposal incor- porated the Company’s current practice and position, that maintenance personnel must provide their basic handtools, but must keep such tools on the company premises. The Union also agreed to withdraw its proposal for reclassifica- tion of employee Phillips. The Union offered to accept the Company’s proposal on holidays if the Company agreed to red circle incumbent employees at their present level of holi- days. The parties agreed in principle on the Company’s rec- ognition article. The parties next met on July 14. The Company offered to agree to the Union’s red-circling offer on holidays, if the Union withdrew its proposal for checkoff. The Union em- phatically rejected the Company’s offer. The Union an- nounced that it was withdrawing its maintenance of member- ship proposal, and would consider only a standard union-se- curity clause. The Union said that there was no purpose in talking further if the Company was unwilling to move on union security and checkoff. The Union asked if the Company would agree to a 4.5- percent wage increase, retroactive to July 1992. The Com- pany said that it would consider the matter, but made no for- mal proposal. There were no agreements at the July 14 session. Guardiani testified, and his notes indicate, that at that ses- sion, the Company presented a slightly revised version of its sick days’ proposal, which was not signed off on. No such proposal was presented in evidence. Muller initially testified that at some point in the 1993 negotiations, the parties agreed to the Company’s sick days’ proposal, including the 4-day minimum. However, he subsequently testified that the matter was still open as of the last session on December 22. Guardiani’s notes for the last session indicate that sick time was one of the remaining open issues. No signed-off pro- posal on sick days was presented in evidence. In sum, the evidence tends to indicate that the parties never reached agreement on a sick days’ article. At the July 14 session, the Company raised the matter of the Union’s failure to pay its share of the cost of negotia- 624 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tions. The Company previously raised this matter in letters to the Union. During the interval between the July 14 and December 22 bargaining sessions, the Company on several occasions noti- fied the Union of proposed changes in terms and conditions of employment. The Company on each occasion asked the Union if it objected to the changes. The Union did not object to any of the changes. At the last session on December 22, the Company pro- posed that the Union withdrew all pending unfair labor prac- tice charges, including an 8(a)(3) charge filed by or on be- half of Unit Steward Doyle Donovan, in exchange for a 4.5- percent retroactive wage increase. By this time, the Regional Director (on July 20) had issued the present complaint. The Regional Director subsequently declined to proceed on Donovan’s charge. Guardiani testified that the Company’s proposal did not include red-circling, i.e., that for most of the unit employees, the Company was proposing a theoretical rather than an actual wage increase. By an exchange of cor- respondence shortly before the December 22 session, the Company proposed, and the Union agreed, that the unit em- ployees would receive the same 1-percent bonus (ranging in amount from $20 to $500) as other company personnel, in lieu of a 1993 across-the-board rate increase. The Union responded that it would discuss wages in the context of a total contract package. The Union indicated that it would be receptive to ‘‘me too’’ on wages, i.e., that the unit employees would receive the same increases as other personnel. After a caucus, the Company amended its pro- posal to exclude reference to Donovan’s charge. The Union adhered to its position. There was no further movement by either party, and the session adjourned. As of December 22, the parties had not reached agreement on wages, shift differential, holidays, sick days, union secu- rity, dues checkoff, and contract duration. They had agreed in principle on recognition, but had not reduced their agree- ment to writing. Muller testified that if union security and checkoff were the only outstanding issues, the Union might have attempted to persuade the unit employees that they could seek such provisions in the next contract. However, the Union never so informed the Company. Guardiani testified that he understood that the Union would not agree to a con- tract without union security and checkoff. H. Concluding Findings Concerning the Effect of the 1993 Negotiations on the Company’s Unlawful Failure and Refusal to Bargain in Good Faith On consideration of the 1993 negotiations, I find that the Company continued on its course of failing and refusing to bargain in good faith with the Union. Therefore, the Com- pany was and continues to be in violation of Section 8(a)(5) and (1) of the Act, and a remedial bargaining order is war- ranted. The Company rigidly adhered to positions taken in the 1992 negotiations, including those, as previously found, which were not advanced in good faith. For its part, the Union demonstrated flexibility, and a continued willingness to make deep and significant concessions in order to move toward agreement on a contract. Virtually all movement to- ward such agreement was generated by union acceptance of company proposals. The Union offered to accept the Compa- ny’s humiliating CQI proposal in exchange for a modified union shop. The Company would not budge from its pre- determined rejection of any form of union security, but the Union nevertheless signed off on CQI. The Union withdrew its proposal for a maintenance-of-membership clause, only after it became apparent that the Union’s broad concessions of May 17 did not stimulate any significant movement by the Company. The fact that the Union, in a desperate effort to move to- ward a contract, accepted company proposals, including those made in bad faith, does not preclude a finding that the Company failed and refused to bargain in good faith. Gen- eral Electric Co. v. NLRB, 400 F.2d 713, 727 (5th Cir. 1968), cert. denied 394 U.S. 904 (1969). Indeed, even if a union totally capitulates in the face of bad-faith bargaining, and agrees to a contract (in essence, on the employer’s terms), that result does not preclude a finding of employer failure and refusal to bargain in good faith. NLRB v. General Electric Co., 418 F.2d 736, 746 (2d Cir. 1969), cert. denied 397 U.S. 965 (1970). Rather, the Union’s conduct, as here, demonstrates good-faith bargaining on its part. I find without merit, the Company’s argument that the Union failed or re- fused to bargain in good faith. In finding that the Union bargained in good faith, I spe- cifically find that the Company was not excused from rem- edying its unlawful conduct by reason of the Union’s evident failure to pay its share of the cost of negotiations. Rather, that is a matter to be taken up in resumed negotiations, when the Company commences bargaining in good faith. CONCLUSIONS OF LAW 1. The Company is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time skilled maintenance and groundskeeping employees employed at the Company’s 701 East Marshall Street, West Chester, Pennsylvania facil- ity, excluding all other employees, office clericals, guards and supervisors as defined by the Act, constitute a unit ap- propriate for collective-bargaining within the meaning of Section 9(b) of the Act. 4. Since December 3, 1991, the Union has been and is the exclusive collective-bargaining representative of the Compa- ny’s employees in the unit described above. 5. By interfering with, restraining, and coercing its em- ployees in the exercise of the rights guaranteed them by Sec- tion 7 of the Act, the Company has engaged and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 6. By failing and refusing to bargain in good faith with the Union as the exclusive collective-bargaining representa- tive of the employees in the appropriate unit, and by unilater- ally failing and refusing to provide the unit employees with a scheduled annual across-the-board wage increase without affording the Union advance notice and an opportunity to bargain concerning such action, the Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 625 CHESTER COUNTY HOSPITAL 6 Under New Horizons, interest on and after January 1, 1987, is computed at the ‘‘short-term Federal rate’’ for the underpayment of taxes as set out in the 1986 amendment to 26 U.S.C. § 6621. 7 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. 8 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.’’ THE REMEDY Having found that the Company has committed violations of Section 8(a)(1) and (5) of the Act, I shall recommend that it be required to cease and desist therefrom and from any like or related unlawful conduct, to post appropriate notices, and to take certain affirmative action designed to effectuate the policies of the Act. I shall recommend that the Company be ordered to, on request, bargain in good faith with the Union, and compensate the unit employees for its failure to grant them the July 1992 general wage increase. Compensa- tion shall be computed in the manner set forth in Ogle Pro- tection Service, 183 NLRB 682 (1970), with interest as com- puted in New Horizons for the Retarded, 283 NLRB 1173 (1987).6 The Company shall be required to preserve and make available to the Board or its agents, on request, payroll and other records to facilitate the computation of reimburse- ment due. The General Counsel has requested (G.C.’s Br. p. 62) that as part of an appropriate remedy, the certification year should be extended to enable a reasonable period of good- faith bargaining. The Union was certified on December 3, 1991. Contract negotiations began on March 17, 1992. The Company commenced its unlawful conduct on April 9, when it responded to the Union’s proposals with a fixed determina- tion to avoid reaching a contract, asserting positions which were not made in good faith. By engaging in a course of bad-faith bargaining, the Company substantially deprived the employees of the benefit of representation by a certified union, and deprived the Union of the benefit of such certifi- cation. Therefore, I am granting the General Counsel’s re- quest, and recommending that, on resumption of bargaining and for 8 months thereafter, the Union be regarded as if the initial year of certification had not yet expired. See Mar-Jac Poultry Co., 136 NLRB 785 (1962); Burnett Construction Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). On these findings of fact and conclusions of law and on the entire record, I issue the following recommended7 ORDER The Respondent, the Chester County Hospital, West Ches- ter, Pennsylvania, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to bargain collectively in good faith with the Union as the exclusive collective-bargaining representative of all its employees in the above-described ap- propriate unit. (b) Unilaterally changing terms and conditions of employ- ment of unit employees without affording the Union prior notice and an opportunity to negotiate and bargain concern- ing such changes as the collective-bargaining representative. (c) Engaging in surveillance of its employees’ union ac- tivities, or creating the impression of surveillance of such ac- tivities by photographing or videotaping employee union ac- tivity or pretending to engage in such conduct. (d) In any like or related manner interfering with, restrain- 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. (a) On request, bargain collectively with the Union as the exclusive collective-bargaining representative of the employ- ees in the appropriate unit described above, with regard to rates of pay, hours of employment, and other terms and con- ditions of employment and, if an understanding is reached, embody such understanding in a signed agreement. (b) Regard the Union on resumption of bargaining and for 8 months thereafter as if the initial year following certifi- cation had not yet expired. (c) Compensate the unit employees for its failure to grant them the July 1992 general 4.5-percent wage increase, as set forth in the remedy section of this decision. (d) Preserve and, on request, make available to the Board 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 reimbursement due under the terms of this Order. (e) Post at its West Chester, Pennsylvania facility copies of the attached notice marked ‘‘Appendix.’’8 Copies of the notice, on forms provided by the Regional Director for Re- gion 4, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent imme- diately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vio- lated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT fail or refuse to bargain collectively in good faith with International Brotherhood of Teamsters, AFL–CIO, Local 312 as the exclusive collective-bargaining representa- tive of our employees in the appropriate unit. The appro- priate unit is: 626 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD All full-time and regular part-time skilled maintenance and groundskeeping employees employed by us at our 701 East Marshall Street, West Chester, Pennsylvania facility, excluding all other employees, office clericals, guards and supervisors as defined by the Act. WE WILL NOT unilaterally change terms and conditions of employment of our unit employees without affording Local 312 prior notice and an opportunity to negotiate and bargain concerning such changes as the exclusive collective-bargain- ing representative. WE WILL NOT engage in surveillance of our employees’ union activities, or create the impression of surveillance of such activities by photographing or videotaping employee union activity or pretending to engage in such conduct. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of your right to engage in union or concerted activities or to refrain therefrom. WE WILL, on request, bargain collectively with Local 312 as the exclusive collective-bargaining representative of our employees in the appropriate unit described above, with re- gard to rates of pay, hours of employment, and other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement. WE WILL regard Local 312 on resumption of bargaining and for 8 months thereafter as if the initial year following certification has not expired. WE WILL compensate the unit employees for our failure to grant them the July 1992 general 4.5-percent wage increase, with interest. THE CHESTER COUNTY HOSPITAL