337 NLRB 202
Washoe Medical Center
202
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Washoe Medical Center, Inc. and Operating Engi
neers Local No. 3, International Union of Oper
ating
Engineers,
AFL–CIO.
Cases
32–CA–
17934–1 and 32–CA–18179–1
December 20, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS LIEBMAN
AND WALSH
On December 14, 2000, Administrative Law Judge
Lana H. Parke issued the attached decision. The Re
spondent and the General Counsel filed exceptions and
supporting briefs, and the Respondent filed a response
brief.
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,1 and conclusions and
to adopt the recommended Order.2
We affirm the judge’s finding that the Respondent vio
lated Section 8(a)(5) and (1) of the Act by continuing to
unilaterally set starting wage rates for newly hired em
ployees after the union election, without providing the
Union with advance notice and an opportunity to bargain
about these wages. We agree with the judge’s applica
tion of Oneita Knitting Mills, 205 NLRB 500 (1973), in
finding this violation, and with her view that News Jour
nal Co., 331 NLRB 1331 (2000), is distinguishable.
In Oneita, the Board held that once employees choose
to be represented by a union, their employer may not
unilaterally discontinue a discretionary merit wage in-
crease program. Further, the employer may not continue
unilaterally to exercise its discretion in determining the
amounts or timing of the merit increases. 205 NLRB at
500 fn. 1, quoted in pertinent part in the final section of
the judge’s decision.
1 There are no exceptions to the judge’s recommended dismissal of
the allegation that the Respondent violated Sec. 8(a)(5) and (1) by
unilaterally changing its policy governing shift schedule changes in its
labor and delivery department.
We affirm the judge’s recommended dismissal of the allegation that
the Respondent unlawfully failed to bargain before-the-fact, i.e., before
the planned imposition of specific discipline on particular employees.
The record does not establish that the Union at any time sought to en-
gage in such before-the-fact bargaining.
In light of the Board’s holding in Oneita Knitting Mills, 205 NLRB
500 (1973), discussed infra, we reject the judge’s comment at the end
of the third par. from the end of sec. III,A of her decision, that “[I]t is
not sufficient that the General Counsel show only some exercise of
discretion to prove the alleged violation; the General Counsel must also
demonstrate that imposition of discipline constituted a change in Re
spondent’s policies and procedures.” (Footnote omitted.)
2 The Respondent has requested oral argument. The request is de
nied as the record, exceptions, and briefs adequately present the issues
and the positions of the parties.
In News Journal Co., the issue was whether the em
ployer unilaterally discontinued its discretionary practice
of granting merit wage increases to selected employees
when they completed their 90-day probationary period,
without providing the union with advance notice and an
opportunity to bargain about this alleged discontinuation.
Unlike here, the General Counsel did not allege that the
employer had violated the Act by failing to bargain over
implementation of the discretionary aspects of the prac
tice. The Board found that the employer did not in fact
discontinue its practice. The Board found that the em
ployer’s decision to award post-probationary merit wage
increases was discretionary, based on numerous criteria.
However, the record failed to establish that employer
officials applied different criteria after the advent of the
union than they did before-hand. Thus the record failed
to establish that the ongoing practice had been altered or
discontinued. 331 NLRB 1332 (2000).
Here, on the other hand, the issue is not whether the
Respondent unilaterally discontinued its practice of es
tablishing discretionary starting wage rates for newly
hired employees based on numerous criteria. Rather, the
issue is whether the Respondent failed to provide the
Union with advance notice and an opportunity to bargain
about the implementation of these discretionary wage
rates, as required by Oneita, supra. We agree with the
judge that the Respondent failed to do so.
Our dissenting colleague contends that the Respon
dent’s policy and procedure for setting initial wage rates
entails the consistent application of uniform standards
and, thus, curtails its exercise of discretion. On the con
trary, we agree with the judge that the procedure used by
the Respondent to place new employees in a quartile
within the wage range for the relevant position is in no
sense automatic. Rather, it entails the application of a
large measure of discretion. The Respondent is unfet
tered in its comparison of applicants’ professional quali
fications, experience, and specialty certifications and,
importantly, the value it assigns to those criteria in rating
the new hires relative to other departmental employees
(“internal equity” factor). Such judgments are necessar
ily subjective, as it is unlikely that any two applicants or
employees will be precisely comparable. It is this sub
stantial degree of discretion, as well as the unavoidable
exercise of such discretion each time the Respondent
establishes a wage rate for a new employee, that requires
the Respondent to bargain with the Union, pursuant to
the Board’s holding in Oneita.
ORDER
The National Labor Relations Board adopts the rec
ommended Order of the administrative law judge and
orders that the Respondent, Washoe Medical Center,
337 NLRB No. 32
WASHOE MEDICAL CENTER, INC.
203
Inc., Reno, Nevada, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.
CHAIRMAN HURTGEN, dissenting in part.
Contrary to my colleagues, I would not adopt the
judge’s finding that the Respondent violated Section
8(a)(5) and (1) of the Act by unilaterally setting the start
ing wage rates for newly hired employees.
The judge found that, pursuant to the Respondent’s ex
isting policy and practice, it had applied objective criteria
for determining the placement of new employees into
one of four quartiles. Each quartile had an established
wage range for a particular position.1 The judge con
cluded that the Respondent’s pay-setting policy vested it
with “unfettered discretion” over the determination of the
specific wage rate within a quartile. Accordingly, citing
Oneita Knitting Mills,2 the judge found that, in exercising
its discretion to fix wages for new employees within a
quartile range, the Respondent acted unilaterally in viola
tion of Section 8(a)(5).
Under Oneita, if an employer has a wholly discretion
ary wage-determination policy prior to the advent of a
union, the employer may not, upon certification of the
union, unilaterally discontinue the policy, nor may it con
tinue to exercise its unfettered discretion under that pol-
icy. However, in the instant case, the Respondent’s pol-
icy was to place a new employee into a particular quar
tile, based on objective criteria. These criteria were:
professional qualifications; prior experience; and spe
cialty certifications. In addition, Respondent determined
the precise wage rate within that quartile, again based on
objective criteria, i.e., comparing her to other employees
of the Respondent in terms of skills, qualification and
experience.3 In my view, the Respondent was privileged,
indeed required, to continue the status quo, pending bar-
gaining with the Union. That is what the Respondent
did.
Concededly, the objective criteria involved herein do
not lead to a mathematically precise result. That is, some
discretion, within the criteria, must be exercised. How-
ever, it is not inconsistent with collective bargaining
principles to have a system in which discretion is exe r
cised under objective criteria.4 Accordingly, the Re
spondent’s policy was not unlawful.
1 For example, the salary range for experienced nurses is $18.15 to
$25.41 per hour; and the first quartile ranges from $18.15 to $19.97 per
hour.
2 205 NLRB 500 (1973).
3 Compare Oneita , supra at 502, where the wages were wholly dis
cretionary, i.e., not based on wages paid to comparable employees.
4 See News Journal Co., 331 NLRB 1331 (2000), in which the em
ployer was privileged to have a system under which discretion was
exercised under objective criteria. Indeed in that case, the discretion
within those criteria was “highly subjective.” I recognize that the Gen-
Sharon Chabon, Atty., for the General Counsel.
Stephanie Dodge, of Chicago, Illinois, for the Respondent.
Matthew J. Gauger, Atty., of Sacramento, California, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
LANA H. PARKE, Administrative Law Judge. This case was
tried in Reno, Nevada, on October 3 and 4, 2000. Operating
Engineers Local No. 3, International Union of Operating Engi
neers, AFL–CIO (the Union) filed the following charges: Case
32–CA–17934–1 on February 1, 2000,1 Case 32–CA–18179–1
on May 24, and first-amended charge in Case 32–CA–18179–1
on August 18. Complaints and notices of hearing issued on
March 31 and July 24 pursuant to the charges in Cases 32–CA–
17934–1 and 32–CA–18179–1, respectively, and an order con
solidating the above cases issued July 24. The complaints al
lege that Respondent engaged in unfair labor practices within
the meaning of Sections 8(a)(5) and (1) of the Act by imple
menting new starting wages for newly hired employees since
November 1, 1999, changing its shift-trade policy on or about
December 28, 1999, and issuing various disciplinary measures
to unit employees commencing sometime after July 16, 1999,
including disciplinary written warnings, a 1-day suspension,
and subsequent termination to employee Terry DeVault
(DeVault), the latter occurring on April 12, all without prior
notice to or affording the Union an opportunity to bargain about
said actions. Respondent’s timely answers deny the commis
sion of the alleged unfair labor practices.
On the entire record, including my observation of the de
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
Respondent, a corporation, operates an acute-care hospital at
its facility in Reno, Nevada, where it annually derives gross
revenues in excess of $250,000. Respondent admits and I find
that it is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act and that the Union is a
labor organization within the meaning of Section 2(5) of the
Act.2
eral Counsel alleged in News Journal Co. that the employer had wholly
discontinued a discretionary practice. My colleagues thus say that
News Journal Co. is distinguishable because the General Counsel in
that case did not allege a failure to bargain about the exercise of em
ployer discretion. My colleagues thereby suggest the somewhat
anomalous position that an employer can wholly discontinue a discre
tionary practice, but an employer cannot continue the status quo of such
a practice.
1 All dates are in 2000, unless otherwise indicated.
2 Where not otherwise noted, the findings herein are based on the
pleadings, the stipulations of counsel, and/or unchallenged credible
evidence.
204
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
II. BACKGROUND
A. Representation History
A Board-conducted representation election was held among
Respondent’s employees in a unit of all full-time and regular
part-time registered nurses, including graduate nurses awaiting
licensing, and per diem nurses (all nurses who have worked an
average of at least 4 hours a week during the quarter prior to the
eligibility date), employed by Respondent at its Reno, Nevada
facility (the unit), on July 14, 15, and 16, 1999. On October 21,
1999, the Union was certified as the exclusive collective-
bargaining representative of the employees in the unit. Since
December 1, 1999, Respondent and the Union have been en-
gaged in negotiations for a collective-bargaining agreement
covering employees in the unit. Pete Ford (Ford), was the Un
ion’s chief negotiator during all times material to this com
plaint. Stephanie Dodge (Dodge), Respondent’s attorney, was
chief negotiator for Respondent. In the course of negotiations,
Respondent invited the Union to bring issues that involved
bargaining unit employees to the negotiation table for discus
sion, and the Union did so from time to time.
B. Respondent’s Written Policies and Procedures Corrective
Action Policy
Since December 1993, Respondent has had a written policy
and procedure identified as “Corrective Action, No. 605.810.”
It provides for five levels of corrective action to be followed “in
the majority of typical circumstances” and while Respondent
“reserves the right not to apply the following procedures in any
given case at the discretion of management, all supervisors are
encouraged to apply it under ordinary circumstances.” Re
spondent also “reserves the right to utilize only portions of the
. . . procedures, to skip certain types of corrective action in
appropriate cases, or to discharge any employee, in the discre
tion of management, without first taking any other type of cor
rective action.”
The types of corrective action include verbal counseling,
written reprimand, suspension, demotion, reassignment, and
termination. Section II of the policy and procedure classifies
specific offenses in three levels of severity: type “A” offenses,
type “B” offenses, and type C offenses. Representative of
fenses are delineated for each level, and the type of discipline is
dependent on the type of offense.3 Except for the disciplinary
3 Under Type “A,” such conduct as tardiness, unexcused absence or
failure timely to notify a supervisor of inability to report to work, loaf
ing, solicitation of patients, failure to comply with dress code, unau
thorized bulletin board use, and unsatisfactory work performance are
listed as representative offenses. Under Type “B,” careless use of
company property, improper conduct, leaving work without permission,
misuse of company records, giving false information to qualify for
benefits, taking gratuities of a certain value, repeated absenteeism,
failure to follow patient care standards, failure to support the culture
statement, engaging in conduct which contributes to discord among
employees, patients, or others dealing with the company, discourteous
treatment of others, failure to report an accident, smoking in unauthor
ized areas are representative offenses. Under Type “C,” inefficiency or
incompetency, insubordination, misdemeanor or felony, willful damage
of property, abuse of patients or other personnel, fighting, threats, pos
session of a lethal weapon or explosives, reporting for work while
measures of suspension and termination, Respondent’s supervi
sors use the “Corrective Action” policy as a framework to
guide their judgment. Proposed suspensions and terminations
require consultation with Respondent’s Human Resources De
partment to ensure compliance with the policy.
2. Attendance and punctuality policy
Since January 1994, Respondent has had a written policy and
procedure identified as “Attendance & Punctuality, No.
605.705.” It notes Respondent’s concern with abuse of paid
sick leave, and in pertinent part, sets forth guidelines and
thresholds for disciplinary action pursuant to the following
attendance violations: unscheduled absences4 and absences
without approved leave.5 Discipline is to follow the progres
sion outlined in Corrective Action Policy 605.810, but it is
noted that excessive absenteeism “may require accelerated
discipline up to and including termination.” Two examples of
absences subject to disciplinary action are “1. A record of ab
senteeism occurring before or after scheduled days off. 2.
Absences occurring on weekends or holidays scheduled as
work days.”
3. Nursing administration policy & procedures
A written policy identified as “Staffing” with an effective
date of October 15, 1999, covers staffing procedures in each of
Respondent’s hospital units.
Regarding changes in staffing
schedules, it states: “Any change in the schedule must be sub
mitted to Nursing Administration in writing on a schedule
change slip and entered into the computer. Changes must be
approved by the unit manager, staffing coordinator or desig
nated nurse supervisor.” A written policy identified as “Time
Schedules” with an effective date of October 15, 1999, covers
assigned workdays and hours of nursing staff members. In
pertinent part, it provides that all changes in schedules, includ
ing trades, are to be in writing on a change slip and submitted
to the Nursing Administration. Changes should be made at
least 48 hours prior to the effective date and are at the discre
tion of the scheduling committee, manager, director, or by unit
guidelines.
under the influence of proscribed substances, failure to cooperate with a
search to reveal such proscribed substances, willful or negligent dan
gerous acts, conviction of serious crimes that would impact Respon
dent, unauthorized use of company property, dishonesty, fraud in secur
ing employment, smoking in hazardous areas, falsification of records,
gambling on premises, immoral conduct on premises, malicious gossip
or attacks on personnel, making unauthorized notations on time cards,
sleeping on duty, abandonment of position, certain harassment, holding
a position elsewhere which constitutes a conflict of interest, failure to
maintain licensure, refusal to care for patients, unauthorized disclosure
of medical information, theft of company property, unauthorized
change of time cards, any act which adversely affects staff, working
conditions, or morale, unexplained failure to appear for work, breach of
security, giving a false reason for leave, and unauthorized removal of a
hospital uniform, are representative offenses.
4 These are defined essentially as three or more absences without
prior approval in six pay periods since the most recent unscheduled
absence or more than 60 hours in any 12-month period.
5 These are defined as absences for three consecutive days without
appropriate notification.
WASHOE MEDICAL CENTER, INC.
205
4. Salary administration
Since January 1, 1996, Respondent has had a written policy
and procedure identified as “Salary Administration, No.
605.545.” The stated policy and purpose are to compensate
employees equitably and fairly. Uniform procedures for deter
mination of employee compensation are set out. Section I.B
states: “Salary grades and ranges are assigned based upon a
formal evaluation of the position description, utilizing a single
set of criteria applied uniformly to all jobs.” The policy and
procedure document sets out the evaluation process for ranking
of jobs and competitiveness of salary structure, the latter de-
pendent on salary surveys conducted at Respondent’s discretion
but at least yearly.
III. UNFAIR LABOR PRACTICE ALLEGATIONS
A. Alleged Unilateral Imposition of Discipline
Between the time the Union won the election and the hear
ing, Respondent imposed discipline ranging from an oral warn-
ing6 to termination on an unspecified but extensive number of
employees.
At no time after the Union won the election or
during the course of bargaining did Respondent notify the Un
ion before it imposed discipline on any unit employee or offer
to bargain about any discipline. Ford became aware of disci
pline meted to various employees when notified by the employ
ees. Specifically, he was notified by employees, Terry DeVault
(DeVault) and Susan Crump of discipline they received. The
Union did not request that Respondent bargain with it over any
of its disciplinary actions. During the course of negotiations,
Ford discussed with Dodge, either by telephone or during nego
tiations, discipline given to approximately eight to ten unit
employees. There is no evidence of the substance of these
discussions.
Ford became aware of DeVault’s December 8, 1999 suspen
sion for attendance problems when DeVault informed him of it
either before or shortly after the suspension. Ford requested an
opportunity to participate in DeVault’s appeal of the suspen
sion. Respondent’s Human Resources Director, Brian Moore,
referred Ford to Dodge. Ford telephoned Dodge and brought
up the subject at the next negotiation meeting. No evidence
was introduced as to the substance of any discussion on this
matter.
DeVault also notified Ford of her January 18 written warning
and 3-day suspension and her March 14 suspension. In each
instance, Ford contacted Respondent and sought to represent
DeVault in Respondent’s appeal process. On each occasion,
Ford was denied opportunity to represent DeVault.7
Ford was notified by both Dodge and DeVault of the latter’s
April 12
6 Respondent’s written policies and disciplinary action forms refer to
“verbal” warnings but it is clear that oral warnings are meant.
7 Ford requested, and was permitted, to represent employee Deb
Weatherby by appearing with her at meetings between her and the
reviewing supervisor and assisting in her presentation. No explanation
was given as to the differing responses to Ford’s requests to represent
employees in pursuing their grievances. Of the eight to ten employees
whose discipline Ford discussed with Dodge or other management
personnel, he asked to represent five to six.
Termination. Ford made no request to bargain concerning the
termination.8
The Union submitted its initial proposal regarding employee
discipline to Respondent on or about December 1, 1999. In its
proposal, the Union requested that Respondent notify the Union
of its intent to suspend an RN. Following discussion of the
discipline proposal on five or six different sessions, the parties
tentatively agreed on a contractual article entitled “Corrective
Action.”
The agreed-to article vested the right to maintain
discipline in Respondent. The proposal incorporated a progres
sive discipline procedure: verbal [sic] warning, written warn
ing, suspension, and termination. Respondent was to give unit
employees 24-hour notice of any investigatory meeting with an
employee that might result in disciplinary action.
The em
ployee was thereafter responsible for contacting and making
available a Union representative at such a meeting. Respondent
was required to notify the Union within 3 working days after
the issuance of a disciplinary discharge or suspension.
The Union also submitted a proposed management-rights
clause to Respondent at the December 1, 1999 negotiation
meeting. The proposed clause included the following provision
as a right of management: “17. To reprimand, suspend, dis
charge or otherwise discipline RNs for just cause.” The man
agement clause as tentatively agreed to on June 7 gave Respon
dent the sole and exclusive right to “counsel, demote, suspend,
discipline or discharge [employees; and] the right to maintain
discipline and efficiency of its employees.” Employee disci
pline is unquestionably a mandatory subject of bargaining,9 and
any alteration of a disciplinary system is also a mandatory sub
ject of bargaining.10 The General Counsel contends that Re
spondent exercised considerable discretion in disciplining its
employees and is therefore required to notify and, upon request,
bargain with the Union over each and every imposition of dis
cipline, citing Eugene Iovine, Inc., 328 NLRB 294 (1999), and
Electrical South, Inc., 327 NLRB 270 (1998). Both cases deal
with an employer’s obligation to bargain about discretionary
actions affecting terms and conditions of employment. In Io
vine, the Board, citing NLRB v. Katz, 369 U.S. 736, 746 (1962),
held that the decision to reduce employee hours involved man
agement discretion and required the employer to bargain with
the newly certified union. In Eugene Iovine, Inc., the Board
specifically noted that the employer “failed to establish a past
practice and further failed to establish that its . . . reduction of
hours was consistent with its conduct in prior years.” 328
NLRB at 294. In Electrical South, the Board noted that al
though the employer’s “policy of granting merit pay increases
ante dated the [u]nion’s certification, the amount of the merit
8 Beginning in January, DeVault received additional notices of cor
rective action for stated violations of work performance standards and
policies. A 3-day suspension imposed on DeVault on March 14 was
later changed to a 1-day suspension, which DeVault took on March 29.
Thereafter, DeVault filed a grievance through Respondent’s internal
grievance procedure, resulting in recision of the notice of suspension
and back pay. She was terminated on April 12. There is no contention
that her termination violates any provision of the Act.
9 Crestfield Convalescent Home, 287 NLRB 328 (1987); Ryder Dis
tribution Resources, 302 NLRB 76 (1991).
10 Van Dorn Plastic Machinery Co ., 265 NLRB 864 (1982).
206
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
increases was discretionary.” 327 NLRB 27 at 270 fn. 1 (1998).
The Board observed that the employer had exercised its discre
tion differently in prior years. In both cases, there was a de
monstrable change from preceding practices.
The General Counsel is correct in pointing out that the disci
pline administered to unit employees by Respondent is, at least
in part, discretionary. Employee discipline, regardless of how
exhaustively codified or systematized, requires some manage-
rial discretion. The variables in workplace situations and em
ployee behavior are too great to permit otherwise. Here, Re
spondent’s detailed and thorough written discipline policies and
procedures long antedate the Union’s advent. The fact that the
procedures reserve to Respondent a degree of discretion or that
every conceivable scenario leading to discipline is not specified
does not alone vitiate the system as a past practice and policy.
The General counsel does not contend that Respondent’s disci
pline policies were unilaterally altered or unlawfully estab
lished, and the Union made no such accusation during negotia-
tions.11 Rather, the General Counsel asserts that notwithstand
ing the legality of the long-established policies, inasmuch as
Respondent exercises a degree of discretion in implementing
the policies, i.e., by setting individual discipline, it must notify
and give the Union an opportunity to bargain over every in-
stance of discipline from oral warnings to terminations. I can-
not agree. It is not sufficient that the General Counsel show
only some exercise of discretion to prove the alleged violation;
the General Counsel must also demonstrate that imposition of
discipline constituted a change in Respondent’s policies and
procedures.12 The General Counsel has not done so.
The General Counsel introduced evidence of individual dis
cipline imposed on unit employees since June 1999, a month
before the election, and argues that the evidence shows, on its
face, significant exercise of discretion in certain instances of
discipline and, inferentially, arbitrary implementation or disre
gard of Respondent’s established discipline procedures.13
While the evidence may suggest that some employees were
given different levels of discipline for similar infractions, it is
not clear from the records alone that Respondent was not fol-
11 During negotiations, the parties reached agreement on contract
provisions covering discipline and management rights essentially con
sistent with Respondent’s existing policies.
12 See Cotter & Co., 331 NLRB 787, 789 (2000), where the Board,
citing Great Western Produce, 299 NLRB 1004, 1005 (1990), noted
that “the discipline or discharge of any employee violates Section
8(a)(5) if the employer’s unlawfully imposed rules or policies were a
factor in the discipline or discharge;” Van Dorn Plastic Machinery Co.,
above at 3, where the Board stated: “the notification and enforcement
of a new [absentee control] system is undeniably still a unilateral
change in terms and conditions of employment.” (Emphasis added.;)
Dynatron/Bondo Corp., 324 NLRB 572, 573 (1997), where discipline
of employees who violated a “unilaterally instituted new rule” violated
Section 8(a)(5) of the Act; and Bath Iron Works Corp , 302 NLRB 898
at 901 where the Board cited with approval the finding of Trading Port,
224 NLRB 980 (1976) that where the standards [of productiv
ity/efficiency] and sanctions remained the same, the related “tightening
of the application of existing disciplinary sanctions did not require
bargaining with the union.”
13 The General Counsel provided a summary of the discipline evi
dence as Attachment A to his brief.
lowing its established policies and procedures or that it deviated
from its past practice when imposing the discipline. The Gen
eral Counsel elicited the testimony of only one employee wit
ness, DeVault, whose testimony, even if credited, does not
show any significant departure from past practice. The Union
never requested bargaining over any of the employee discipline
and only sought to assist certain employees in protesting their
discipline through utilization of the internal company appeal
process.14 I do not find it necessary to reach the question of
whether the Union waived any right to bargain under American
Diamond Tool, 306 NLRB 570 (1992), by its failure to request
bargaining about discipline of which it had actual notice, the
lack of any evidence that Respondent would have refused to
bargain upon request, and its agreement to the management
rights and discipline provisions during negotiations. However,
the Union’s conduct may reasonably create an inference that it
did not perceive Respondent’s employee discipline to be a
noteworthy departure from past practice.
Accordingly, the General Counsel has not met its burden of
proving that Respondent violated Section 8(a)(5) and (1) of the
Act by issuing discipline to various bargaining unit employees,
including DeVault, without first notifying the Union and af
fording it an opportunity to bargain over the discipline.
B. Alleged Unilateral Change in Shift Trade Policy
The Union made a proposal regarding work hours and shift
scheduling but made no specific request to bargain regarding
the trading of shifts among employees in any individual hospi
tal unit. During negotiations, the parties discussed the different
practices and policies in effect in various departments, some
being self-scheduled and some not.15 The Union’s position was
that self-scheduling should be encouraged. The Union agreed
that unless a specific concern arose as to the existing practice of
scheduling in a particular department, of which the Union
would notify Respondent, the existing staffing/scheduling pro
cedure was appropriate. That procedure, at least in the labor
and delivery department, also permitted shift trading among
employees. The Union agreed to notify Respondent when it
felt self-scheduling was not working. The Union never made
any request or notification regarding scheduling in any depart
ment at any time material to the allegations herein. Respondent
did not notify the Union of any change in its shift trade policy
and procedures.
The only department at issue herein with regard to shift trade
policy is the labor and delivery department. Ford testified that
the Union was not satisfied with the operation of self-
scheduling in that department. Nevertheless, the Union made
no proposal to discontinue or modify any of the scheduling
practices occurring in Labor and Delivery.
On June 29, 1999, DeVault received a notice of corrective
action for the stated reasons of tardiness and sick leave use.
14 The General Counsel does not argue, and I do not find, that Re
spondent violated the Act by refusing to permit Ford to participate in its
internal appeal procedure.
15 Self-scheduling is a system where nurse employees gather sched
uling desires and information from other department employees, de
velop a schedule for a designated future period, obtain approval by
management and employees, and post the scheduled work hours.
WASHOE MEDICAL CENTER, INC.
207
Under the section entitled “Action Plan,” the action to be taken
states: “Terry will be here ON Time and will come as sched
uled” On November 29, 1999, a notice of corrective action
issued to DeVault again noted that the action plan was that
“Terry will come to work as scheduled.” On December 8,
1999, Tandy LaMountain (LaMountain,) the day shift supervi
sor, told DeVault that she would be suspended for 1 day with-
out pay on December 15, 1999, because of tardiness and issued
DeVault a notice of corrective action to that effect. DeVault
did not take the suspension, but traded a day with a coworker
and worked on the assigned suspension day. After consulting
with a coworker about the necessity to notify management,
DeVault sought no prior supervisory approval for the shift
change. On December 28, 1999, LaMountain issued DeVault a
written warning for insubordination in making the trade. On
the same day, Respondent posted notices directing employees
in the Labor and Delivery Department to obtain supervisory
approval of shift trades. Ford testified that he became aware of
these postings in the course of following one of DeVault’s dis
ciplinary matters. The Union never made a request to bargain
regarding Respondent’s posted policy on shift trading in the
labor and delivery department.
Only one unit employee, DeVault, testified about the appli
cation of the shift trade policy and procedures.
According to
her, if the trade involved a straight across swap, (e.g., a straight
exchange of shifts with another employee that did not alter the
number of employees on either shift,) it was not necessary to
get prior management approval. According to DeVault, ap
proval was only required if the shift trade involved alteration of
the number of employees scheduled on any shift.
When
pressed, however, DeVault said that in the past, there were
occasions when Respondent was “holding more strictly to the
rules,” or would “post something and say you have to get prior
authorization . . .,” or it was “maybe announced in a staff meet
ing…,” (held monthly) that employees were required to get
some type of supervisor approval before they traded shifts.16
She further admitted that although they did not always observe
the rule, employees engaging in schedule trades were to fill out
schedule forms to let the nursing office know someone other
than the scheduled employee would be working and that the
change in schedule form was to be signed by the person in
charge.17 Respondent’s shift schedules show only sporadic
initialing by supervisors next to shift trades.
16 DeVault later reiterated that a straight across swap of shifts, which
didn’t create an overtime situation, did not require preapproval.
17 DeVault testified that the rule was pervasively disregarded and
management was aware of general abrogation. She gave no concrete
evidence to support her contention and admitted that at some point in
the past (perhaps 2 years earlier,) Christy Collins, a supervisor of the
Labor and Delivery department, required her to sign a paper in which
DeVault acknowledged that she was required to obtain pre-approval
specifically from Christy Collins for any shift changes. DeVault in
sisted only she and another employee were required to sign such an
acknowledgment, but her belief was based solely on her not having
seen such a paper in employees’ mailboxes and her questioning of a
couple of coworkers. Regarding subsequent unrelated disciplinary
actions, DeVault said she was accused of painting her fingernails while
on duty when she had only “mended a broken nail.” Under question
ing, she then admitted having painted more than one nail, and doing it
Respondent’s duty to avoid unilateral changes in wages,
hours, and working conditions attached when the Union won
the election on July 19, 1999. Mitchellace, Inc., 321 NLRB
251 (1996); Lovejoy Industries , 309 NLRB 1085 (1992). Para-
graph 10 (b) of the complaint in Case 32–CA–17934–1 alleges
that on or about December 28, 1999, Respondent changed its
former policy of allowing employees to trade shifts among
themselves without the need for prior approval from manage
ment. The complaint does not allege that the written policy
identified as “Staffing” with its stated effective date of October
15, 1999 constituted a unilateral change. Whether that is be-
cause the General Counsel mistakenly assumes the bargaining
obligation had not yet attached on October 15, 1999, or whether
it views the written policy as a statement of existing, albeit
unenforced, rules is not entirely clear. However, inasmuch as
the General Counsel in his brief states that notwithstanding the
formal guidelines, “…Respondent, in its labor and delivery
department did not require its Unit employees to adhere to
these requirements[,]” I will assume General Counsel takes the
latter position.18
The General Counsel bears the burden of proof in demon
strating that Respondent unilaterally changed the procedures
whereby it accommodated shift changes. The General Counsel
has not met its burden. It is not sufficient for the General
Counsel to present evidence that employees sometimes failed to
follow the shift change requirements.19 The evidence must
show that Respondent’s past practice was to accept unapproved
shift changes and to overlook policy violations. DeVault testi
fied of occasions when Respondent held more strictly to the
rules, or posted “something” about prior authorization, or an
nounced the policy in staff meetings. Her testimony, although
inconsistent, suggests that the policy of requiring written notifi
cation and preapproval of shift changes had been in effect prior
to the election. Periodic renewals or reminders of standing
more than once. She agreed that in her sworn statement to the Board
agent during the investigatory stage, she stated that “applying the nail
polish to all the nails including the broken one took all of 30 seconds,”
but maintained that it was only the nails of one hand. I found Devault
to be vacillatory and evasive in much of her testimony and given to
inconsistent and unsubstantiated generalizations. I do not credit her
testimony except where it is independently corroborated.
18 That position is consistent with the general tenor of DeVault’s tes
timony that at least some rules regarding written notice of shift change
existed prior to the election.
19 Inasmuch as the General Counsel’s sole witness to employee non-
compliance is not credible, there is no clear evidence that employees
generally disregarded Respondent’s shift change policies. The absence
of supervisors’ initials next to most schedule changes does not, without
explanation, prove that the uninitialed changes were effected without
prior written notice, particularly since, after the December 28, 1999
notice of the preapproval requirement, half of the changes were still
uninitialed. The General Counsel subpoened signed shift change slips,
but Respondent maintained it did not keep the slips. There is no evi
dence to contradict Respondent’s assertion and no presumption that the
slips are documents that would likely be kept in the normal course of
business; therefore, no adverse inference can be drawn from the non-
existence of signed change slips.
208
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
instructions do not constitute unilateral changes. Bryant &
Stratton Business Institute, 321 NLRB 1007 (1996).20
The General Counsel asserts that DeVault received a written
warning for insubordination when trading her suspension day,
and that the written warning was a unilateral change in admini
stration of the shift change policy. Respondent argues that
there is no evidence to indicate discipline of any employee for
failure to obtain preapproval, and that DeVault was disciplined
for insubordination. Although the insubordination was con
nected to DeVault’s conduct in trying to avoid the assigned
suspension day, the evidence is clear that it was the evasion and
not the shift change that motivated the suspension. The issue of
unilateral imposition of discipline has been dealt with above
and consistent with those findings, Respondent has not failed in
its duty to bargain by its suspension of DeVault. Further, even
assuming the evidence supports a conclusion that Respondent
unilaterally changed or more strictly enforced its shift change
format, it must be determined if the Union waived its right to
bargain by its failure to object to any change or to request bar-
gaining over it. The Union had specifically agreed to bring any
scheduling concerns to Respondent’s attention during negotia
tions. Ford was aware of the DeVault suspension and the De
cember 28, 1999 posting regarding shift swaps. The Union did
not bring up the subject during negotiations, and there is no
evidence that Respondent would have declined discussion on
this subject. Indeed, in agreeing that the Union could bring
scheduling concerns to Respondent’s attention, Respondent had
signaled its willingness to discuss scheduling subjects, includ
ing shift swaps.
If a bargaining right existed, I find that the
Union waived it. American Diamond Tool, 306 NLRB 570
(1992).
Accordingly, Respondent did not violate Section
8(a)(5) of the Act by changing its shift schedule change policy
in its labor and delivery department.
Alleged Unilateral Change in Starting Pay Rates for Newly
Hired Employees
Respondent neither notified the Union about the starting pay
rates it was assigning to new employees following the Union
election nor offered to bargain about them. During negotia
tions, on three different occasions, two of which took place in
about March or April, the Union told Respondent that it was
concerned that Respondent was unable to attract new employ
ees, and the inability was having a deleterious impact on the
working conditions of employees who, as Respondent was
understaffed, were asked to work overtime. The Union re-
quested an opportunity to negotiate increased starting wages
with the purpose of establishing more competitive wage rates.
The union also told Respondent that it believed there had been
some instances of increased wages being given to some new
hires, and the Union wanted to pursue that issue and bargain
about it with the object of equalizing such wage rates. The
Union requested bargaining about wage increases for the rest of
the bargaining unit as well, on at least an interim basis, because
20 Caterpillar, Inc., 321 NLRB 1178 (1996), cited by the General
Counsel is inapposite. In that case, unlike the instant situation, there
was clear evidence that the employer both announced and instituted
stricter enforcement of existing work rules.
of concern about Respondent’s ability to compete for new nurs
ing graduates.
During negotiations, the Union made a base proposal for
general wage increases and engaged in discussion about wages
generally throughout various bargaining sessions. However,
according to Ford, the Union’s general wage proposal was
modified during the March to April period to include an interim
increase proposal specifically directed at improving Respon
dent’s’ ability to recruit new employees. Ford testified that
Respondent’s negotiating representatives declined to make any
response to the proposals regarding interim increases or to par
ticipate in the requested discussion.21
Respondent maintains a salary range for newly hired regis
tered nurses. Since June 28, 1999, registered nurses with ex
perience have been hired at a starting wage rate ranging be-
tween $18.15/hour and $25.41/hour.22 The salary for graduate
nurses is set at a flat rate $15.41/hour rising to $18.15/hour
when they pass their examinations. For the registered nurses
whose work background qualifies them for wage consideration
within the established wage range, Respondent follows specific
guidelines in setting their wages. The wage range is divided
into quartiles. The individual department’s hiring manager and
the Human Resources Department jointly determine an appro
priate rate of pay based on the applicant’s qualifications, ex
perience, specialty certifications, and the internal equity of the
department.23 If the department manager and the human re-
source officer determine that the quartile into which the appli
cant most appropriately falls based on the above considerations
is the first quartile ($18.15 to $19.97), the hiring manager then
assigns a specific rate. If the wage rate deemed appropriate for
an applicant falls into the second, third, or fourth quartile, the
hiring manager must obtain approval from the human resources
department and the vice president of nursing for the specific
wage rate.24 The same procedure is followed for part-time and
per diem nurses, except that the latter receive fifteen percent
added to their base pay in lieu of benefits. This policy and
procedure of setting wage rates has been followed consistently
at all times material to this matter.
The General Counsel argues that while the framework de-
vised by Respondent for setting wage rates for new hires ante-
dated the Union election, Respondent had an obligation to bar-
gain with the Union over the discretionary aspects of the proce
dure, i.e. the amount of the starting rate within the specified
21 During Ford’s testimony in this regard, Counsel for Respondent
pressed him to admit that there had been discussion about wages during
negotiations. Ford agreed that there had been discussion of wages
generally but consistently testified that as to the Union’s proposal for
interim wage increases specifically geared to make Respondent com
petitive among the upcoming nurse graduates, Respondent declined to
discuss it and “rebuffed” attempts to do so. There is no evidence to the
contrary, and I found Ford to be a forthright and credible witness. I
accept his testimony.
22 The latest range was established June 28, 1999, and it is not con-
tended that the establishment of the range violates the Act.
23 This refers to wage rates of other registered nurses employed in
the department to which the applicant will be assigned.
24 Respondent’s pay records show that for the period January 1,
1999 through August 2000, 56 percent of the new hires were started at
wage rates above the base pay.
WASHOE MEDICAL CENTER, INC.
209
range. As noted, Respondent applies precise criteria for deter-
mining which quartile a prospective employee qualifies for, but
determining the wage rate within that quartile is discretionary.
The first quartile—into which most newly hired employees
fit—has a range of $18.15 to $19.97. The other quartiles also
have hourly wage ranges. Respondent has unfettered discretion
over the amount it will set for a newly hired employee within
the appropriate quartile.
The General Counsel does not con-
tend that Respondent’s procedure whereby it determines begin
ning wages has altered in any way, but contends that since Re
spondent has discretion over where in the quartile range it will
fix a starting salary, it must bargain with the Union over that
determination.
Respondent asserts that it does not exercise “unlimited” dis
cretion in setting the starting rates of newly-hired unit employ
ees, that it follows established detailed procedures, and that the
General Counsel must show the procedure is followed inconsis
tently or ignored before a violation of 8(a)(5) can be proven. I
cannot agree with Respondent.
In Oneita Knitting Mills, 205 NLRB 500 fn. 1 (1973), in
volving an employer’s annual review of employees to deter-
mine the amount of a merit increase, the Board stated: An em
ployer with a past history of a merit increase program neither
may discontinue that program…nor may he any longer con
tinue to unilaterally exercise his discretion with respect to such
increases,
once
an
exclusive
bargaining
agent
is
se
lected…What is required is a maintenance of preexisting prac
tices, i.e. the general outline of the program, however the im
plementation of that program (to the extent that discretion has
existed in determining the amounts or timing of the increases),
becomes a matter as to which the bargaining agent is entitled to
be consulted.
Here, Respondent did not alter its starting wage assessment
procedure, but refused to bargain with the Union over its dis
cretionary placement of new employees within the fixed quar
tile range. Since the procedure, by its terms, established a dis
cretionary wage range, the starting wage rate was “in no sense
automatic, but [was] informed by a large measure of discre
tion,”25 and the Union was entitled to bargain over the wage
rate selection. Thus, Respondent failed to bargain over the im
plementation of its practice as required by Oneita Knitting in
violation of Section 8(a)(5) and (1) of the Act. 26
Respondent argues that the Union waived its right to bargain
regarding the starting wage rates of newly hired nurses. The
evidence clearly shows otherwise. The Union consistently
expressed a concern over the starting wages of unit employees
particularly as it had a direct impact on the workload of current
unit employees. The Union made several requests to bargain
25 NLRB v. Katz, 369 U.S.736 (1962).
26 In The News Journal Co., 331 NLRB 1331 (2000), the Board
found no violation of 8(a)(5) in an employer’s failure to give merit
wage increases inasmuch as the employer maintained its existing prac
tice of using a number of factors including the discretion of the editor
in deciding whether an increase would be given. That case differs from
the instant situation. Here, the existing procedure had a built-in discre
tional range for determining starting salaries. Once the quartile was
arrived at by application of a number of factors, the decision as to what
rate to apply was purely discretional.
over the starting wages, all of which were refused by Respon
dent.
As the issue of starting wage rates for unit employees had a
material and substantial impact on unit employees’ wages,
hours and conditions of employment, and as Respondent has
failed to show that the Union had no right to bargain in this
regard, I find that Respondent’s refusal to bargain over the pay
rates of new hires violated Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
1. Respondent 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 Registered Nurses, in
cluding graduate nurses awaiting licensing, and Per Diem
nurses (all nurses who have worked an average of at least 4
hours a week during the quarter prior to the eligibility date),
employed by Respondent at its facility located at 75 and 77
Pringle Way, Reno, Nevada; excluding all other employees,
managerial employees, guards, and supervisors as defined in
the Act constitute a unit appropriate for the purpose of collec
tive bargaining within the meaning of Section 9(b) of the Act.
4. On July 14, 15, and 16, 1999, in an election by secret bal
lot, conducted under the supervision of the Regional Director
for Region 32 of the Board, a majority of the employees in the
unit described in paragraph 3 above designated and selected the
Union as their representative for the purpose of collective bar-
gaining with Respondent with respect to rates of pay, wages,
hours of employment, and other terms and conditions of em
ployment.
5. On October 21, 1999, the Union was certified as the ex
clusive collective bargaining representative of the employees in
the unit described in paragraph 3 above. Since December 1,
1999, Respondent and the Union have been engaged in negotia
tions for a collective-bargaining agreement covering employees
in the above unit.
6. At all times since October 21, 1999, the Union has been
and is, the representative of a majority of the employees in the
unit described in paragraph 3 above, for the purpose of collec
tive bargaining, and, by virtue of Section 9 (a) of the Act, has
been, and is, the exclusive representative of all employees in
said unit for the purpose of collective bargaining.
7. By unilaterally and without notice to or consultation with
the Union, setting starting wage rates for newly hired employ
ees in the unit described in paragraph 3 above, commencing on
or about November 1, 1999, Respondent has engaged in an
unfair labor practice affecting commerce within the meaning of
Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act..
8. The General Counsel failed to prove that Respondent en-
gaged in any unfair labor practice on or about December 28,
1999, in connection with administering its policy of allowing
employees in the unit described in paragraph 3 above to trade
shifts.
9. The General Counsel failed to prove that Respondent en-
gaged in any unfair labor practice commencing on or after July
16, 1999, in connection with issuing discipline to employees in
the unit described in paragraph 3 above.
210
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10. The General Counsel failed to prove that Respondent en-
gaged in any unfair labor practice on or about November 29,
1999, December 8 and 28, 1999, January 18, 2000, March 14,
2000, and April 12, 2000, in connection with issuing discipline
to employee Terry DeVault.
REMEDY
Because Respondent’s unilateral setting of wage rates for
newly hired employees carries no pecuniary detriment to the
employees, no make-whole order is required. However, having
found that Respondent has engaged in certain unfair labor prac
tices, I find that it must be ordered to cease and desist and to
take certain affirmative action designed to effectuate the poli
cies of the Act. On these findings of fact and conclusions of
law and on the entire record, I issue the following recom-
mended27
ORDER
The Respondent, Washoe Medical Center, Inc., of Reno, Ne
vada, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Unilaterally, and without consultation with the Union,
setting starting wage rates for newly hired employees in the
unit described in paragraph 3 above,
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec
tuate the policies of the Act.
(a) Upon request, bargain with the Union as the exclusive
representative of the employees in the following appropriate
unit concerning setting starting wage rates for newly hired em
ployees and, if an understanding is reached, embody the under-
standing in a signed agreement:
(b) Within 14 days after service by the Region, post at its
facilities in Reno, Nevada, copies of the attached notice marked
“Appendix.”28 Copies of the notice, on forms provided by the
Regional Director for Region 32, after being signed by the Re
spondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable
27 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom
mended 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.
28 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 Na
tional Labor Relations Board” shall read “Posted Pursuant to a Judg
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material. In
the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility in
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em
ployees and former employees employed by the Respondent at
any time since February 1, 2000.
(c) Sign and return to the Regional Director sufficient copies
of the notice for posting by the Union, if willing, at all places
where notices to its members and employees it represents are
customarily posted. Within 21 days after service by the Region,
file with the Regional Director a sworn certification of a re
sponsible official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed inso
far as it alleges violations of the Act not specifically found.
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 violated
the National Labor Relations Act and has ordered us to post and
abide by this notice.
WE WILL NOT unilaterally set starting wage rates for newly
hired employees in the following unit without first providing
Operating Engineers Local No. 3, International Union of Oper
ating Engineers, AFL–CIO, notice and an opportunity to bar-
gain.
WE WILL NOT in any like or related manner, interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL , before setting starting wage rates for newly hired
employees, notify and, on request, bargain with the Union and
put in writing and sign any agreement reached on terms and
conditions of employment for our employees in the following
bargaining unit:
All full-time and regular part-time Registered Nurses, in
cluding graduate nurses awaiting licensing, and Per Diem
nurses who have worked an average of at least 4 hours a
week during the quarter prior to the eligibility date), em
ployed by Respondent at its facility located at 75 and 77
Pringle Way, Reno, Nevada; excluding all other employ
ees, managerial employees, guards, and supervisors as de-
fined in the Act.
WASHOE MEDICAL CENTER, INC.