Caritas Good Samaritan Medical Center

CARITAS GOOD SAMARITAN MEDICAL CENTER 61 Caritas Good Samaritan Medical Center and SEIU, Local 767, Hospital Workers Union, AFL–CIO. Case 1–CA–39471 September 8, 2003 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND SCHAUMBER On September 12, 2002, Administrative Law Judge Earl E. Shamwell Jr. issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed cross-exceptions and a sup- porting brief.1 The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings, and conclusions only to the extent consistent with this Decision and Order. The complaint alleges that the Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally chang- ing the bargaining unit employees’ health insurance, without first bargaining with the Union.2 In its defense, the Respondent asserts, inter alia, that the case should be deferred to the grievance-arbitration procedure contained in the parties’ collective-bargaining agreement. For the reasons stated herein, we agree with the Respondent that deferral is appropriate. Facts The Union represents two units of the Respondent’s employees: the technical unit and the service clerical unit. For the past 6 years, the Union has been the exclu- sive bargaining representative for the technical unit, and it has represented the service clerical unit for 3 years. In November 2000, the Union and the Respondent began negotiating the current contract. In approximately Sep- tember 2001, the parties agreed to and signed a new con- tract (the Agreement). The Agreement is effective Janu- ary 1, 2001, through December 31, 2003, for the techni- cal unit and is effective January 1, 2001, through De- cember 31, 2004, for the service clerical unit. 1 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. 2 As discussed infra, there were essentially three changes: (1) a change in copay, i.e., the money that employees must pay the health care provider; (2) a change in benefits covered by insurance; and (3) a change in premiums to be paid, respectively, by employees and the Respondent. Changes 1 and 2 were set forth in a memo of September 10, 2001. Change 3 was set forth in that memo and in appendix B, ostensibly a part of the collective-bargaining agreement. The Agreement provides employees with health bene- fits. The Respondent contributes a certain amount to cover the costs of insurance premiums, and the employ- ees contribute the remainder. The employee contribu- tions are made through deductions made from the em- ployees’ weekly pay. In addition, employees pay a co- pay at the time services are rendered. The Respondent has two insurance providers: Harvard/Pilgrim Health Care and Tufts Health Plan. It is undisputed that, during negotiations for the new Agreement, neither party pro- posed or discussed any changes or amendments to the existing health benefit plans. Section 10.1 of the Agreement provides the following language under the caption titled Health Insurance: Workers who are authorized to regularly work twenty- four hours or more per week may participate in the Medical Center’s health insurance plans on the same terms and conditions as offered to the other workers of the Medical Center applicable to said health insurance plans. The Medical Center agrees to bargain with the Union before implementing any changes to said plans and not to lower the Medical Center’s contributions to the plans which are outlined in Appendix B. Such language is identical to that contained in prior con- tracts. Appendix B is a chart indicating the amount of the employees’ weekly paycheck deductions used for health care coverage. After the parties signed the Agreement, the Respon- dent, on September 10, 2001,3 distributed a memo to all its employees, the subject of which was “Medical and Dental Renewal Rates and Plan Changes.” The memo highlighted the changes, effective October 1, that would be made to both health plans. Specifically, those changes are as follows: the copays under the Tufts plan for office visits increased from $3 to $8, from $25 to $50 for emergency room visits, and from $0 to $100 for inpa- tient treatment. Under the Harvard/Pilgrim Health Plan, copays for office visits increased from $10 to $15, and emergency room copays increased from $30 to $75. Fur- ther, under the Harvard/Pilgrim Plan, the memo notes a decrease in the number of days an employee can receive physical, speech, or occupational therapy, and an in- crease in the copays for durable medical equipment and prosthetic equipment. In addition to the above changes, the memo announced an increase in the employees’ weekly paycheck deduc- tions. Specifically, in comparison with that contained in the most recent contract, the individual rate for the Har- vard/Pilgrim Health Care increased approximately $2 per week, and the family rate increased $4 to $6 per week, 3 All subsequent dates are 2001 unless otherwise indicated. 340 NLRB No. 6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 62 depending on whether the employee was full or part- time. These changes in payroll deductions are consistent with appendix B as it appears in the current contract. However, that appendix B was not physically a part of the contract when it was signed on September 1, prior to the Respondent’s issuance of the September 10 memo announcing the changes. Inexplicably, when the Union later assembled the contract for printing, it included the rates in the September 10 memo in appendix B. In the instant case, the Union relies on the prior appendix B, which was effective October 1, 2000. The Union’s representative, Mary Ellen Leveille, did not learn of or see a copy of the September 10 memo until approximately October 24, when a union chairper- son gave her a copy. On either October 25 or October 26, Leveille called the Employer’s director of human resources, Sarah Jackson, and asked about the memo and the changes to the health plans. Leveille informed Jack- son that Leveille knew nothing about these changes, to which statement Jackson responded “mea culpa.” Jack- son did not offer any reason for the alleged action and simply apologized to Leveille. Jackson then sent Leveille a copy of the memo. Article 25 of the Agreement also contains a zipper clause, which reads: This Agreement incorporates the entire understanding of the parties on all issues which were or could have been the subject of negotiations and disposes of all is- sues between the parties. The Union acknowledges that during the negotiations which resulted in the Agreement, it has the unlimited right and opportunity to make demands and proposals with respect to all proper subjects of collective bargaining, that all sub- jects have been discussed and negotiated, and that the agreements contained in this Agreement were arrived at after free exercise of such rights and opportunities. The Union, therefore, voluntarily and without qualifica- tions, waives any rights it may have had in this respect and agrees that the Medical Center shall not be obli- gated to bargain collectively with regard to any subject or matter referred to or covered by this Agreement or with regard to any subject or matter not covered or re- ferred to in this Agreement, whether or not the subject or matter was within the knowledge or contemplation of the Union at the time it negotiated or signed this Agreement. Finally, the Agreement’s grievance and arbitration sec- tion set forth in Article 18 applies “[i]n the event of a controversy concerning the meaning or application of any provision of this Agreement.” Judge’s Decision The judge rejected the Employer’s contention that the instant case should be deferred to arbitration. In doing so, the judge noted that the contract language regarding health benefits and what the employees were expected to pay under the contract for insurance benefits was clear and unambiguous. The judge specifically found that appendix B “clearly identifie[d]” the amount of employ- ees’ weekly deductions and that the “specific language” in appendix B addressed what the Agreement required the employees to pay under the health plan.4 Given the clarity of the contract language, the judge determined that the expertise of an arbitrator was not required to in- terpret the language to establish whether the Respondent violated the Act. The judge then went on to decide that the Respondent violated Section 8(a)(5) by unilaterally changing the employees’ health benefits without provid- ing the Union notice and an opportunity to bargain over the changes. Discussion In Collyer Insulated Wire, 192 NLRB 837 (1971), the Board established the general rule that it would refrain from adjudicating an unfair labor practice issue that arises from the parties’ collective-bargaining agreement if the agreement provides for arbitration as the method of resolving disputes over the meaning of its provisions. The Collyer decision identified the factors it would con- sider in determining whether a dispute is appropriate for deferral to arbitration. The Board held that it would de- fer when (1) the dispute arises within the confines of a long and productive collective-bargaining relationship; (2) no claim is made of employer animosity to the em- ployees’ exercise of protected rights; (3) the employer has asserted its willingness to arbitrate the dispute; (4) the parties’ contract provides for arbitration in a very broad range of disputes; and (5) the dispute is well suited to resolution by arbitration. Id. at 841–842. An application of the Collyer factors to the case at hand shows that deferral is appropriate. Here, the Re- spondent and the Union have enjoyed a bargaining rela- tionship for at least 6 years. There is no claim of ani- mosity on the part of the Respondent toward the employ- ees’ exercise of their protected rights. The Respondent has expressed its willingness to arbitrate the dispute, of- fering to waive any timeliness issue. Moreover, the arbi- tration clause, by its language, provides for arbitration in a broad range of disputes, including, no doubt, the instant 4 It is not clear whether the judge was referring to the revised appen- dix B or the prior one. CARITAS GOOD SAMARITAN MEDICAL CENTER 63 dispute.5 Most importantly, the instant dispute is well suited to resolution by arbitration because the meaning of the contract is at the heart of the dispute. The issue in this case is whether the Agreement is free from ambiguity so as to make arbitration unnecessary. In our view, it is not. With respect to the change in premiums, the Agree- ment provides, inter alia, that the Respondent will bar- gain before implementing any change to said plans. However, the Respondent plausibly argues that this pro- vision refers to a change from one plan to another, not a change in an existing plan. Our colleague says that provision refers both to changes from one plan to another and to changes in a plan. That may be correct, but that is classically a matter of contract interpretation, i.e., grist for an arbitrator’s mill. Our colleague also says that it is not reasonable to suppose that the Union would want to bargain about sub- stituting one plan for another, and yet not seek to bargain about changes in an extant plan. We do not agree. The former change can involve changes in many matters, e.g., coverage, premiums, benefits, and promptness of pay- ments. Thus, a union would be particularly concerned about such a change. We also disagree with our col- league’s speculation that a union would “undoubtedly” be concerned about any change in an extant plan, and her assertion that the Union “clearly” did not intend to ex- clude changes in specific aspects of an existing plan from the prohibition against unilateral changes. We find that the concerns and intent of the Union, and how they might have been reflected in the agreement reached in bargain- ing, are not at all clear and, rather than engaging in con- jecture, we leave these matters for an arbitrator to decide. In support of its position, the Respondent points to bargaining history and past practice. More specifically, the Respondent points out that, under this language, the parties have bargained in the past only with respect to a change in carriers. Our colleague seeks to refute the Respondent’s argu- ment by pointing to the 2000 bargaining over health in- surance coverage. However, that bargaining involved the Respondent’s change from a commercial health mainte- nance organization to a self-insured designated provider plan. Union representative Mary Leveille testified that, at the same time, the parties discussed changes in the monthly premiums listed in appendix B of the existing 5 The Agreement’s grievance provisions require an employee to file a grievance in order for the dispute to proceed to arbitration. The lack of such a grievance in the case at hand is immaterial, however, as the filing of a grievance is not a prerequisite to deferral. Urban N. Patman, Inc., 197 NLRB 1222 (1972). contract. There is no evidence that the parties even dis- cussed the coverage, copays to providers, or other ele- ments of preexisting plans. Thus, the parties’ bargaining in 2000 is consistent with the interpretation of the con- tract language urged by the Respondent, i.e., that the parties have only bargained when there was a change from one plan to another. When there was such a basic change, the parties also “discussed” other related matters. The parties’ discussion of premiums on the one occasion when they were negotiating a change from one plan to another does not necessarily demonstrate an intent to bargain over premiums, or a history of doing so, in the absence of such a basic change. Moreover, the record does not show that the parties bargained over coverage or copays of an existing plan in 2000 or at any other time. Our colleague argues that the Union’s acquiescence to prior changes is not a waiver. It may not be, but it at least sheds some light on the meaning of contract terms in existence at the time of the acquiescence. The contract also says that the Respondent will not lower its contributions to the plans, “which are outlined in Appendix B.” However, the instant case does not in- volve a lowering of employer contributions. It involves a raising of employee contributions. In addition, it may well be that the Union, by assembly of the document, agreed to the new version of appendix B. The terms of that appendix were set forth in the memo of September 10. Our colleague says that “inadvertent error is the only explanation” for the Union’s assembly of the document. Although this is a plausible explanation, it is clearly not the only one. Phrased differently, there is a legitimate issue as to what was intended. As noted above, there was also a change in copays and in covered benefits. However, contrary to our col- league’s assertion, these matters are not set forth in ap- pendix B or in the contract. The “zipper clause” argua- bly waives the Union’s right to bargain with respect to matters not in the contract. Our colleague relies on St. Vincent Hospital, 320 NLRB 42 (1995), for the proposition that the matters herein are “in the contract.” However, that case actually supports our view. There, the Board considered whether the employer, by changing health plans, had unlawfully modified health insurance provisions that, unlike the provisions in this case, were explicitly included in the contract. The Board said that the issue of whether the existing plan was “contained in” the contract was “pri- marily a question of discerning the parties’ mutual un- derstanding” regarding the plan at the time of the change, which was essentially a matter of contract interpretation. Id. at 42. That is our point. In that case, moreover, nei- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 64 ther party argued that the Board should defer to arbitra- tion for the interpretation of the contract. In sum, the agreement here is not free from ambiguity. Since the other factors favoring deferral are present here, we shall leave these matters to arbitral resolution. ORDER Pursuant to Section 10(c) of the National Labor Rela- tions Act, the National Labor Relations Board orders that the complaint is dismissed, provided that: jurisdiction of this proceeding is retained for the limited purpose of en- tertaining an appropriate and timely motion for further consideration on a proper showing that either (a) the dis- pute has not, with reasonable promptness after the issu- ance of this Decision and Order, either been resolved by amicable settlement in the grievance procedure or sub- mitted promptly to arbitration; or (b) the grievance and arbitration procedures have not been fair and regular or have reached a result that is repugnant to the Act. MEMBER LIEBMAN, dissenting. The dispositive issue here is whether the collective- bargaining agreement the parties reached in September 2001, unambiguously required the Respondent to bargain with the Union before changing the terms of employees’ health coverage. Unlike my colleagues, I believe that it did and that the Board accordingly should not defer this case to arbitration under the doctrine of Collyer Insulated Wire, 192 NLRB 837 (1971).1 I. The terms of the 2001 Agreement were established in a 3-page memorandum of understanding (MOU), which the parties signed on August 15, 2001. That MOU, by its terms and format, amended or deleted certain enumerated provisions of the prior contract and extended all the oth- ers—including all of its provisions on health insurance coverage—unchanged.2 The health coverage provisions included Section 10.1, which recited that: The Medical Center agrees to bargain with the Union before implementing any changes to said [health bene- fit] plan(s). [Emphasis added.] Those provisions also included the prior contract’s “Appen- dix B,” which specified the amounts for weekly employee contributions for health insurance premiums. 1 See Grane Health Care, 337 NLRB 432, 436 (2002); R.T. Jones Lumber, 313 NLRB 726, 727 (1994); American Commercial Lines, 296 NLRB 622, 623 fn. 8 (1989); Teamsters Local 284, 296 NLRB 19, 22– 23 (1989); Struthers Wells Corp., 245 NLRB 1170, 1171 fn. 4 (1979), enfd. mem. 636 F.2d 1210 (3d Cir. 1980), cert. denied 452 U.S. 916 (1981). 2 As my colleagues appear to agree, the judge was clearly mistaken in stating that the MOU changed employee premium contributions. During negotiations for the 2001 contract, there was no proposal or even discussion of any changes to existing health coverage. The new contract, established by the MOU, was duly ratified and signed by both parties on September 1, 2001, and the record shows that there was no subsequent nego- tiation or ratification of any later modification of its terms.3 With respect to health coverage, the Respondent re- mained bound by all the preexisting contract terms, in- cluding the requirement that it bargain before making “any changes to said plans,” and the preexisting em- ployee premium contribution amounts.4 Yet the Respon- dent, less than a month after agreeing to these terms, uni- laterally imposed increases in employee premium contri- butions, increases in required copays for visits to health care providers, and additional changes in covered bene- fits. When the Union’s representative challenged this action as impermissible, the responsible management official admittedly replied “Mea culpa.” The Respon- dent’s witness also admitted at the hearing that it had given the Union notice and bargained over such changes in the past. II. It is hard to imagine how the 2001 agreement could be any plainer. No purpose, then, is served by deferring to arbitration. The Respondent contends that Section 10.1’s ban on “any” unilateral “changes to the plans” applies only to changes entirely from one “plan” to another. The major- ity finds this interpretation “plausible.” It is refuted, however, by the plain language of the agreement, as well as the parties’ bargaining history. As a matter of com- mon usage, “any changes to” a thing necessarily includes changes in the thing’s elements, here changes to the terms of the plans—and not just a change of plans. Had the parties intended to cover only changes from one plan to another, they surely would have used different lan- guage. It also violates common sense to conclude that the Union would have intended to require bargaining 3 There is no evidence or contention that the Respondent and the Un- ion discussed changes with respect to health coverage after the new contract was ratified and signed on September 1, 2001. My colleagues point out that the union representative later attached an “Appendix B” containing different employee premium contributions to the draft she sent to the printer in November. But given the importance of the sub- ject, there is no reasonable basis for my colleagues’ speculation that the Union, merely “by assembly of the document,” agreed to any of the Respondent’s unilateral changes. Inadvertent error is the only logical explanation for the inclusion of “Appendix B.” 4 For this reason, my colleagues are incorrect in stating that copays and covered benefits “were not set forth in Appendix B or in the con- tract.” CARITAS GOOD SAMARITAN MEDICAL CENTER 65 only when the Respondent replaced one health plan with another—a step that might not have affected employees’ coverage or pocketbooks—and not when the Respondent changed the actual terms of coverage and the cost to em- ployees.5 My colleagues point out that a change from one health plan to another can involve alterations in cov- erage, premiums, and benefits, and that a union would therefore be “particularly concerned” about such a change. That is not in dispute. Rather, the point is that a union would undoubtedly be concerned about any one of those specific alterations and that the Union here clearly did not intend to exclude them from the prohibition on unilateral changes. The Respondent’s crabbed reading of Section 10.1 is based on its assertion that prior to 2001, with respect to health coverage, the parties bargained only over changes from one plan to another. This assertion, in turn, relies on selected excerpts from the record of the parties’ bar- gaining history from 4 years earlier. However, even as- suming that such extrinsic evidence could be consid- ered,6 the Respondent conveniently ignores the parties’ more recent negotiations in 2000. At that time, as the Union and Respondent witnesses agreed, the Respondent gave notice of and bargained over all of its proposed changes in health coverage, not just over changes to new health plans. My colleagues accept the Respondent’s conclusory assertion that the negotiations in 2000 in- volved only a change from a commercial health plan to a self-insured plan, but the record shows otherwise.7 In 5 In addition to prohibiting “any change to” the health plans, Sec. 10.1 barred the Respondent from reducing “the Medical Center’s con- tributions to the plan(s), which are outlined in Appendix B.” My col- leagues point out that the bar pertaining specifically to contributions does not refer to employee contributions. In fact, however, appendix B in both the prior and the 2001 contracts “outlined” only employee con- tributions, not the Respondent’s. Accordingly, the explicit bar against changes in contributions cannot be read to authorize unilateral changes in employee contributions. 6 As the judge correctly noted, in view of the unambiguous terms of the contract, such extrinsic evidence was irrelevant. 7 Mary Leveille, the Union’s representative, testified that in the fall of 2000, the Respondent notified the Union that it was considering changes in employee premium contribution rates “and they asked us to bargain with them over those changes, so we met with the hospital’s counsel and their vice president of human resources . . . to discuss the changes in the plan and the monthly premiums, and this [appendix B in the 2000 contract] is the document that we came out with.” Similarly, Sarah Jackson, the Respondent’s director of human resources, testified that the vice president of human resources had “discussions with the Union concerning changes in the health care premiums and changes in the plan.” My colleagues’ purported distinction between the parties’ “discussion of premiums” and “an intent to bargain over premiums,” and their attempt to characterize employees’ weekly insurance premium contributions as correlated only to bargaining over a change from one entire plan to another, has no factual basis. The point, in any case, is that the parties’ past bargaining history does not, as the Respondent contends, support its contention that the contract’s requirement of bar- any case, it is well established that a union’s acquies- cence to a particular change in a term of employment does not waive its right to bargain over similar changes in the future.8 Finally, because the Respondent’s actions involved terms of employment established by the agreement and violated a specific contractual prohibition against unilat- eral changes of those terms, I reject the majority’s sug- gestion that the “zipper clause” in the agreement “argua- bly waives the Union’s right to bargain with respect to matters not in the contract” and somehow might author- ize the Respondent’s actions. The matters at issue here were “in the contract” and thus could not be unilaterally changed. See St. Vincent Hospital, 320 NLRB 42, 42 (1995). I predict an arbitrator will make short work of the Re- spondent’s arguments. But that is exactly why we need not defer to arbitration and should instead find that the Respondent violated Section 8(a)(5) of the Act. Avrom J. Herbster, Esq., for the General Counsel. Geoffrey P. Wermuth, Esq. (Murphy, Hesse, Toomey & Le- hane), of Boston, Massachusetts, for the Respondent. Mary Ellen Leveille, Representative, of Hyannis, Massachu- setts, for the Charging Party. DECISION STATEMENT OF THE CASE EARL E. SHAMWELL JR., Administrative Law Judge. This matter was heard by me in Boston, Massachusetts, on June 17, 2002, upon a complaint dated February 28, 2002, charging Caritas Good Samaritan Medical Center (the Respondent), with violations of Section 8(a)(1) and (5) of the National Labor Re- lations Act (the Act). This complaint was based on charges filed by the SEIU, Local 767, Hospital Workers Union, AFL– CIO (the Union), on November 11, 2001, and as amended on February 28, 2002, with the National Labor Relations Board (the Board) in Region 1. The complaint charges that the Re- spondent violated Section 8(a)(1) and (5) of the Act by chang- ing benefits, including copays, offered under the health insur- ance plans provided for in the collective-bargaining agreements in effect between the Respondent and the Union. On March 7, 2002, the Respondent timely filed its answer admitting, among other things, the jurisdictional allegations, the labor organization status of the Union, the agent or supervisory status of Sarah Jackson, director of human resources, and Joan C. Carroll, benefits and compensation manager. The Respon- dent generally denied committing any unfair labor practices and asserted certain defenses. gaining over “any changes to said plans” is limited solely to changes from one plan to another. 8 E.g., Georgia Power, 325 NLRB 420, 421 fn. 9 (1998); Midwest Power Systems, 323 NLRB 404, 407 (1997), enfd. mem. denied on other grounds 159 F.3d 636 (D.C. Cir. 1998); Bath Iron Works, 302 NLRB 898, 900–901 (1991). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 66 Based on my review and consideration of the entire record of this case and my observation of the witnesses and their de- meanor, as well as the arguments and briefs of the General Counsel and Respondent,1 I make the following FINDINGS OF FACT I. JURISDICTION The Respondent is engaged in the operation of a hospital providing inpatient and outpatient medical care in Brockton, Massachusetts. Annually, the Respondent, in conducting its business operations of providing medical care, derived gross revenues in excess of $250,000 from the Brockton, Massachu- setts hospital, and purchased and received at this hospital goods valued in excess of $5000 directly from points outside the Commonwealth of Massachusetts. The Respondent admits, and I find and conclude, that at all times material, it is, and has been, an employer engaged in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act, and has been a health care institution within the meaning of Section 2(14) of the Act. II. LABOR ORGANIZATION The Union is a labor organization within the meaning of Sec- tion 2(5) of the Act. III. ALLEGED UNFAIR LABOR ALLEGATIONS A. Background The Respondent operates a hospital that provides inpatient and outpatient care for the Brockton, Massachusetts region. The Union represents two portions of the Respondent’s em- ployees, the technical unit and the service clerical unit. The Union has been the exclusive collective-bargaining representa- tive of the technical unit for 6 years and the exclusive collec- tive-bargaining representative of the service clerical unit for 3 years. The collective-bargaining agreements (CBAs), the Un- ion has bargained for the units are identical in content, except for the commencement and expiration dates of the agreements.2 The Respondent and the Union began negotiating on the current contract in November 2000, and settled in approximately Sep- tember 2001. The current contract provides the unit employees, among other things, with health insurance benefits, with the Respondent agreeing to contribute a certain amount to cover the costs of the insurance premiums, and the employee agreeing to cover a portion of the costs through a “co-pay.”3 During the most recently concluded contract negotiations, there was no proposal put forth, or discussion of modifying, or amending the existing health insurance benefit plan. 1 The Charging Party did not submit a separate brief. 2 Under article 27 of the “Union Contract,” the duration of the CBA for the technical unit runs from January 1, 2001, to December 31, 2003, while the duration of service/clerical unit’s CBA runs from January 1, 2002, to December 31, 2004. (GC Exh. 2.) 3 The amount of the deductions made from the employees’ weekly pay is listed in the contract in “Appendix B.” This appendix lists the rates for the two insurance plans the employer offers, as well as the rates for part-time and full-time employees, and the rates for individual and family coverage. B. Preliminary Discussion of the Legal Principles Applicable to the 8(a)(5) and (1) Allegations An employer’s unilateral change to a matter that is a subject of mandatory bargaining under Section 8(d) of the Act is a violation of the duty to bargain collectively, as required by Section 8(a)(5) of the Act. NLRB v. Katz, 369 U.S. 736 (1962). Insurance benefits for employees are considered among those matters that are subjects of mandatory bargaining, and an em- ployer’s unilateral modification of such benefits constitutes an unfair labor practice. Allied Chemical & Alkali Workers of America, Local 1 v. Pittsburgh Plate Glass Co., 404 U.S. 157 (1971). Any material, substantial, or significant changes made by an employer to an employee’s health insurance benefits is considered a violation of Section 8(a)(5) and (1) if that em- ployer has not first provided the employees’ bargaining repre- sentative notice and an opportunity to bargain. Pioneer Press, 297 NLRB 972, 976 (1990). If it is argued that the Union has waived the right to bargain over mandatory subjects of bargain- ing, the waiver must be clear and unmistakable. Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 708 (1983). The Board may defer issues involving an interpretation of contract language to arbitration when the meaning of the lan- guage is unclear and would best be determined by an arbitrator with expertise in the field. Collyer Insulated Wire, 192 NLRB 837, 842 (1971). However, when the language at issue is clear and unambiguous, the interpretative skills of an arbitrator are unnecessary, and the Board is thereby not required to defer the issue to arbitration. Grane Health Care, Inc., 337 NLRB 432, 436 (2002). Further, when an employer repudiates a collective- bargaining agreement by modifying terms which involve a subject of mandatory bargaining, it is within the Board’s au- thority to deem such modification a violation of Section 8(a)(5) and (1). Oak Cliff-Golman Baking Co., 207 NLRB 1063, enfd. 405 F.2d 1302 (5th Cir. 1974), cert. denied 423 U.S. 826 (1975). C. The Respondent’s Alleged Unilateral Changes to Health Insurance Benefits Mary Ellen Leveille testified at the hearing; she is a repre- sentative for the Union and has been employed by the Union since 1997. As a union representative, Leveille stated that she currently is the lead negotiator for the technical unit and the service clerical unit at the Respondent’s hospital (the Medical Center), and was the lead negotiator of the current contract between the Union and the Medical Center. Leveille assisted in the negotiations of the two prior contracts of the Union with the Medical Center, but did not have a representational role. According to Leveille, the last bargaining session between the parties occurred in August 2001. On about August 15, 2001, Leveille and Sarah Jackson, for the Respondent, signed a memorandum of agreement for the contract, signifying the amendments to be made to the appropriate sections in the prior contract. Regarding the health plan, this memorandum of agreement indicated that the employee would pay 36 percent of the cost of the health insurance coverage and the Respondent would cover the remaining 64 percent. In comparison to the prior contract, this translated into roughly a $2 increase, weekly, in the individual rate for the Harvard Pilgrim Health CARITAS GOOD SAMARITAN MEDICAL CENTER 67 Care plan, and a $4 to $6 increase in the family rate, depending on whether the employee is part time or full time. With the amendments agreed upon and ratified by the union member- ship, Leveille made the appropriate changes to the existing contract and sent it to the Respondent for review. The Respon- dent then signed off on the amendments, thereby settling the contract on September 1, 2001. In late October, Leveille approximated the date at Octo- ber 24, 2001, Leveille was presented with a memo from the Respondent regarding changes in health insurance. According to Leveille, Mary Ellen Quigley, a union chairperson, brought the memo to Leveille’s attention at a steward’s training session. Quigley provided Leveille with a copy of the document given to the employees and asked Leveille if she knew anything about the memo. Leveille told Quigley that she did not, but that she would look into the matter immediately. Dated September 10, 2001, the memo,4 in essence, “high- lights” the changes to be made on October 1, 2001, to the health plans the Respondent offers employees. The change the memo indicates is an increase beyond the negotiated changes in employee copayments for both the Tufts Health Insurance and Harvard Pilgrim Health Plan. Specifically, copayments under the Tufts plan for office visits increased from $3 to $8, from $25 to $50 for emergency room visits, and from $0 to $100 for inpatient treatment. For those covered under the Harvard Pil- grim plan, copays for office visits increased from $10 to $15, and emergency room copays increased from $30 to $75. Fur- ther, for those covered by the Harvard Pilgrim plan, the memo notes a decrease in the amount of days an employee can receive physical, speech, or occupational therapy and an increase in the price of durable medical equipment and prosthetic equipment. Leveille testified that she called the Respondent’s director of human resources, Sarah Jackson, on October 25 or 26, 2001, regarding the memo and its changes to the employees’ health insurance plan. According to Leveille, she asked Jackson, “What’s going on? I knew nothing about this change.” To which Jackson responded, “Mea culpa.” Leveille stated that she then stated to Jackson that the Respondent already had a National Labor Relations Board posting up in the Medical Cen- ter for not bargaining in good faith with the Union and that she (Leveille) could not believe that the Respondent would make changes to something for the bargaining unit without notifying us [the Union] or bargaining over it.5 As Leveille recalled the conversation, Jackson did not offer any reason for the alleged actions and simply apologized to Leveille. Leveille then asked Jackson to send a copy of the memo to the Local directly from the Respondent’s human resources department, which Jackson did. Leveille stated that once she had received the memo from the human resources department, she proceeded to file the pre- sent unfair labor practice charges with the National Labor Rela- tions Board.6 4 See GC Exh. 7, a copy of the memorandum which was addressed to all benefit-eligible employees of the Respondent. 5 See GC Exh. 8, settlement agreement between the hospital and the Union. 6 In testimony for the Respondent, Sarah Jackson, the Respondent’s director of human resources, corroborated Leveille’s recitation of the facts leading up to the filing of the unfair labor practice charges. In addition to her recollection of the above events, Leveille testified that at no time between bargaining and her conversa- tion with Jackson did she receive notice of the changes in the health care plan, nor did anyone else from the Union’s office receive such notification. She also noted that it was the usual practice of the Respondent and the Union to email or call one another in order to give notice of a possible change and the need to bargain. Leveille stated that the Respondent did not follow this practice and did not notify the Union of a possible change in the terms of the health insurance plan for purposes of bargaining. Leveille did concede that some members of the unit had seen the memo before Leveille had been presented with it, and that she had never told the Respondent that notice must go directly to her and not the union stewards or chairper- sons. Discussion and Analysis The General Counsel alleges that the Respondent unilaterally changed the health insurance benefits of bargaining unit em- ployees without bargaining with the Union by increasing em- ployee copays, in violation of Section 8(a)(5). In response to these allegations, the Respondent asserts that the General Coun- sel has failed to show that the Respondent has made a unilateral change under Section 8(a)(5), or otherwise unlawfully modified the contract, and that the Union has waived its right to bargain over changes in the health insurance rates. Further, the Re- spondent argues that the issue brought before the Board in the present case should be deferred to the current CBA’s grievance and arbitration procedure.7 The Respondent does not challenge Leveille’s version of the facts surrounding the charges, but contends that the case should be deferred to arbitration because the CBA supports its inter- pretation that the Respondent is only required to notify the Union if and when it elects to change from one health insurance plan to another, and not merely upon a shift in insurance copay rates. The language the Respondent relies upon, section 10.1 of the CBA with the Union, states: “The Medical Center agrees to bargain with the Union before implementing any changes to said plan(s) and not to lower the Medical Center’s contribu- tion(s) to the plan(s) which are outlined in Appendix B.” In support of its deferral argument, the Respondent cites Burns Security Services v. NLRB, 146 F.3d 873 (D.C. Cir. 1998). In Burns, the court stated that when an employer plau- sibly claims that there is a contractual justification for changes the employer makes in the terms and conditions of employ- ment, the Board should defer the case to arbitration so as to allow the parties to exhaust their contractual remedies. Id. at 877. In my view, however, Burns is distinguishable from the present case. In Burns, the employer decided to forgo holiday pay for em- ployees receiving workers’ compensation after learning that State law allowed it to do so. After the change was made, the union filed 8(a)(5) charges, alleging that the elimination of holiday pay for those receiving workers’ compensation was a unilateral change. The contract language in question stated, “In 7 This grievance and arbitration procedure is enumerated under art. 18 of the current CBA. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 68 order to receive [holiday pay], the employee must fully com- plete his last regularly scheduled work day before the holiday itself and first regularly scheduled work day after the aforesaid holidays [sic].” Id. at 874. The issue of whether employees on workers’ compensation would receive holiday pay was not expressly addressed in the CBA, and both parties argued that the language supported their position. In the instant case, the General Counsel does not argue that the terms regarding health insurance rates are implied or “extra- contractual.” The General Counsel asserts that the contract language concerning health insurance benefits is not only ex- pressed but is clear and unambiguous. I agree with the General Counsel. Notably, section 10.1 clearly states that the Respon- dent will bargain with the Union before making any changes in the plan(s) and, further, that the Respondent will not lower their rate of contribution as outlined in “Appendix B.” Appendix B clearly identifies the rate of deductions taken from the weekly salaries of employees receiving health insurance benefits, ac- cording to the plan under which the employee is covered. In my view, there is no question that this very specific language in appendix B addresses the issue of what the employees are ex- pected to pay for insurance benefits under the terms and condi- tions of the CBA. In such instances where the contract lan- guage is clear and unambiguous, the Board is not required to defer the matter to arbitration and may interpret the language in order to determine if the Respondent has violated the Act. Struthers Wells Corp., 245 NLRB 1170, 1171 (1979), enfd. 636 F.2d 1210 (3d Cir. 1980), cert. denied 452 U.S. 916 (1981). Further, resolving the issue of whether or not this language allows the Respondent to unilaterally change the rate of copay for employees does not, in my view, require the expertise of an arbitrator conversant in practices of the industry. Appendix B clearly delineates the copay rates for employees, making the interpretative skills of an arbitrator unnecessary. Grane Health Care, Inc., supra. It is my view that the expressed contract language in ques- tion is clear and unambiguous. Accordingly, I find that deferral is not appropriate or warranted, and that the matter here falls squarely and properly within the Board’s jurisdiction, as it is the Board’s duty to promote industrial peace by encouraging, and thereby enforcing, the collective-bargaining process. See Collyer Insulated Wire, supra. The Respondent also contends that the Union has waived its right to bargain over a change in the rate of employee copays. The Respondent acknowledges that such a waiver must be clear and unmistakable and argues that an express waiver by the Union may be gleaned from the bargaining history between the parties and the parties’ past practices. In support, the Respon- dent introduced notes from past bargaining sessions.8 How- 8 At the hearing, the Respondent introduced the notes from previous bargaining sessions during the testimony of Michael Bertoncini, an attorney who assisted the Respondent in negotiations with the Union in 1997. Bertoncini had kept the bargaining notes the Respondent submit- ted as evidence and testified at hearing on the content of his notes and exchanges that took place between the Respondent and the Union dur- ing the 1997 negotiations. Bertoncini’s testimony on these previous bargaining sessions, as well as the Respondent’s other exhibits relating to previous negotiations, is, in my view, extrinsic evidence. ever, the Board has held when the parties have agreed upon contract provisions that are clear and unambiguous, extrinsic evidence is irrelevant and will not be considered. America Piles, Inc., 333 NLRB 1118, 1119 (2001); NLRB v. Electical Workers Local 11, 772 F.2d 571, 575 (9th Cir. 1985). Accord- ingly, I would reject this argument, and would find and con- clude that the Union did not waive its right to bargain over changes in the amounts of employee copays.9 Based on the foregoing, I would find and conclude that the Respondent violated Section 8(a)(5) of the Act by unilaterally changing a mandatory subject of bargaining without providing the Union an opportunity to bargain over the issue. U.S. v. Katz, supra; Allied Chemical & Alkali Workers of America, Local Union No. 1 v. Pittsburgh Plate Glass Co., supra. CONCLUSIONS OF LAW 1. Good Samaritan Medical Center, the Respondent herein, is an employer engaged in commerce within the meaning of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By unilaterally making changes to health insurance bene- fits, a mandatory subject of bargaining, the Respondent violated Section 8(a)(5) and (1) of the Act. 4. By the aforesaid conduct, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of the Section 2(6) and (7) of the Act. 5. For purposes of the present order, the Respondent has not violated the Act in any other way, manner, or respect. Having found that the Respondent has engaged in certain un- fair labor practices in violation of Section 8(a)(1) and (5) of the Act, 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. In effectuating the Act’s objectives to facilitate the productive resolution of industrial disputes and to safeguard the nation’s commerce from injury, I find the following actions appropriate. In light of the Respondent’s unilateral changes to the health insurance benefits bargained for by the employees, I order that the Respondent immediately rescind these unilateral changes to health insurance benefits and provide those benefits bargained for by the employees. The Respondent shall make unit em- ployees whole for the loss they have suffered as a result of the unilateral increase in the cost of copayments and the unilateral decrease in therapy and rehabilitation coverage by reimbursing. The Respondent shall make unit employees whole by paying all health insurance contributions required under the current con- tract the Respondent has with unit employees, which took ef- fect October 1, 2001, to the extent that such payments have not been made, or that employees have not been made whole for their ensuing medical expenses. This shall include reimburs- ing, with interest, all employees who have had to pay medical expenses exceeding those copayments agreed upon by the Re- spondent in the current contract, as a result of the Respondent’s 9 I further note that the General Counsel correctly asserts that the CBA itself excludes the use of parol evidence, as article 25 states that, “no prior agreements or understandings, oral or written, shall be con- trolling or in any way affect the relations between the parties . . . .” CARITAS GOOD SAMARITAN MEDICAL CENTER 69 unlawful unilateral change. The Respondent shall continue to make such contributions to the respective health insurance plans until the parties negotiate a new contract in good faith, or they reach an impasse. Imperial House Condominium, Inc., 279 NLRB 1225, 1228 (1986). [Recommended Order omitted from publication.]