Bryan Memorial Hospital

222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bryan Memorial Hospital and Nebraska Nurses As- sociation affiliated with American Nurses Asso- ciation. Cases 17-CA-11477 and 17-CA-11681 9 April 1986 DECISION AND ORDER BY MEMBERS DENNIS, JOHANSEN, AND BABSON On 12 December 1984 Administrative Law Judge Irwin H. Socoloff issued the attached deci- sion. The Respondent filed exceptions and a sup- porting brief. The National Labor Relations Board has delegat- ed 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 brief and has decided to affirm the judge's rulings, findings, and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Bryan Me- morial Hospital, Lincoln, Nebraska, its officers, agents, successors, and assigns, shall take the action set forth in the Order. Naomi L. Stuart, Esq., for the General Counsel. William A. Harding, Esq. and A. Stevenson Bogue, Esq., Lincoln, Nebraska, for the Respondent. Robert R. Gibson, Esq., of Lincoln, Nebraska, for the Charging Party. DECISION STATEMENT OF THE CASE IRWIN H. SOCOLOFF, Administrative Law Judge. Upon charges filed on February 9, June 22 and 30, and August 4, 1983, by Nebraska Nurses Association affiliated with American Nurses Association (the Union), against Bryan Memorial Hospital (Respondent), the General Counsel of the National Labor Relations Board, by the Regional Di- rector for Region 17, issued a complaint dated March 31, 1983, and an order consolidating cases and consolidated complaint dated August 12, 1983, alleging violations by Respondent of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Relations Act. Respond- ent, by its answers, denied the commission of any unfair labor practices. Pursuant to notice, trial was held before me in Lin- coln, Nebraska, on October 31 and November 1, 1983, at which the General Counsel, the Charging Party, and the Respondent were represented by counsel and were af- forded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence. Thereafter, the parties filed briefs which have been duly considered. Upon the entire record in this case, and from my ob- servations of the witnesses, I make the following FINDINGS OF FACT 1. JURISDICTION Respondent is a nonprofit Nebraska corporation en- gaged, at its Lincoln, Nebraska location, in the operation of a health care facility. Annually, Respondent, in the course and conduct of its health care operations, derives gross revenues in excess of $250,000 and purchases goods and services, valued in excess of $50,000, directly from sources located outside the State of Nebraska. I find that Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background On March 8, 1982, the Union was certified as the col- lective-bargaining representative , in a nurses unit, of some 400 employees working at Bryan Memorial Hospi- tal. Thereafter, the parties engaged in negotiations but complete agreement was not reached . On March 31, 1983, the Regional Director for Region 17 issued a com- plaint in Case 17-CA-11477, alleging that Respondent violated the Act by making unilateral changes in its ma- ternity leave policy . On May 9, Respondent signed a uni- lateral settlement agreement concerning the matters raised in that complaint, and the agreement was ap- proved by the Regional Director on May 24, 1983. It provided that Respondent bargain with the Union; revoke, at the request of the Union, changes made in the maternity leave policy; make certain employees whole for losses caused by the changes in policy and post a notice for 60 days . The agreement contained a nonadmis- sion clause. Before the posting period provided for in the settle- ment agreement had begun, Respondent, on June 20, 1983, withdrew recognition from the Union . Thereafter, on August 8, based on refusal-to-bargain allegations con- tained in Case 17-CA-11681, the Regional Director withdrew his approval of the settlement agreement in Case 17-CA-11477. In the instant consolidated matter , the General Coun- sel contends that Respondent violated Section 8(a)(5) of the Act by making unilateral changes in existing materni- ty leave policy and practices , commencing in mid-1982 and continuing to February 1983. The General Counsel asserts that Respondent further violated the Act by its June 20 withdrawal of recognition from the Union and, thereafter, by making unilateral changes in the insurance coverage of the bargaining unit employees , on or about July 1, 1983 . Respondent claims, essentially , that any change in maternity leave policy was de minimis . It fur- ther contends that the withdrawal of recognition was based on objective evidence, justifying a good-faith 279 NLRB No. 39 BRYAN MEMORIAL HOSPITAL doubt of the Union's continued majority status, and that the change in insurance benefits occurred after recogni- tion had been validly withdrawn. B. Facts' At all times material, Respondent has maintained a written leave absence (LOA) policy2 which , on its face, covers, inter alia, absences due to pregnancy . Thus, the policy provides that "an employee may take an LOA due to pregnancy. Pregnancy should be treated the same as an LOA for extended illness." Despite the terms of the written policy, Respondent, historically, has applied a much more liberal policy toward absences due to pregnancy. Thus, as detailed below, Respondent's unwritten practice concerning ma- ternity leave has afforded employees, in their discretion, the right to take up to 90 days' leave. The right to take the full 90 days has not been dependent on a showing of physical disability, approval of a supervisor, or the staff- ing requirements of the hospital. Moreover, Respondent has not required employees on maternity leave to produce doctors' notes or excuses and, on their return to work, has placed them back at their former job positions. In addition, employees absent from work for this reason have been permitted to use accrued sick leave and to choose between taking their sick leave in blocks of 24 hours per week or 40 hours per week.3 Also, pregnant full-time employees have been allowed , late in pregnan- cy, to transfer to part-time status and, then, prior to de- livery, to transfer back to full-time status, thus allowing them to use accrued sick leave during maternity leave.4 Employee Colleen Olson was on maternity leave from August 26, 1982, until October 7, 1982. She testified that, in early June, she talked to Payroll Supervisor Brettman about taking maternity leave. Brettman told her that, pursuant to policy, she could take either 6 weeks or 3 months time, beginning with the date of delivery. Olson was further advised that she would be able to use her ac- crued sick leave, vacation time, and holidays in 24-hour- per-week or 40-hour-per-week increments. If she chose 40-hour increments, she would use up her leave time more quickly and then have to make her own insurance payments. Later in June, Olson testified, she advised her supervi- sor, Maziarski, that she desired to take maternity leave of 3 months, and to use her accrued leave in blocks of 24 hours per week. Maziarski completed the necessary paper work. However, on June 24, he told Olson that there was some question about taking 3 months' leave. In July, Olson was advised by Maziarski that the maternity leave policy was, itself, in question. I The factfindings contained herein are based on a composite of docu- mentary and testimonial evidence introduced at trial The record is gen- erally free of significant evidentiary conflict 2 It is undisputed that, on September 28, 1982, Respondent, unilateral- ly, instituted a new leave of absence policy The new policy was rescind- ed I week later, on October 7, 1982 3 The advantage to the employee in taking sick leave in 24-hour blocks, thus "stretching out" use of accrued sick leave, is that , until ac- crued sick leave is exhausted , the hospital continues to pay health insur- ance premiums on behalf of the employee 4 Only employees in full-time status can use accrued sick leave 223 Olson met with Respondent's director of human re- sources, Jerry Sellentin, at the end of July 1982. Sellen- tin, Olson testified, told her that, in the past, Respondent had been quite lenient about maternity leave but, that, now it was going to "try and tighten up." He further stated that, although Olson could "probably" have 3 months' leave to take same, she would need the permis- sion of her supervisor for an extended leave of absence. Further, under the leave-of-absence policy, Respondent was not required to place her in the same job upon her return. Sellentin also told Olson that she would have to take her accrued leave in blocks of 40 hours per week and, when this was exhausted, she would be required to pay health insurance policy premiums herself. In August 1982, Olson requested a maternity leave period of 6 weeks. She testified that she did so in order not to jeopardize her job position. Nurse Tamela Mar took maternity leave starting in August 1981. She did not, she testified, request a specific period of leave but, rather, was routinely scheduled for 3 months' leave by the hospital. When she returned, she was placed back at the same job. She was not required to submit a physician's note. Mar testified tht preceding her second maternity leave period, on January 11, 1983, her supervisor, Wen- delin, told her that the hospital would be short of nurses in May. Wendelin stated that everyone assumed that ma- ternity leave was for 3 months but, in fact, it was for 6 weeks. In order to have 3 months, an employee had to submit a doctor's statement. Later, Wendelin showed the leave-of-absence policy to Mar. On January 12, at a staff meeting conducted by Wendelin, Mar brought this matter up. Wendelin again said that, absent a medical reason for a longer period, documented by a physician's note, maternity leave could not exceed 6 weeks. Although Mar was, in fact, scheduled by Respondent for a 90-day maternity leave period, she was at no time, she testified, so advised by the hospital. Rather, she learned of the lengi h of her leave, after delivery, by checking the posted work schedules. Employee Roxanne Stewart took maternity leave be- ginning May 1, 1983. She testified that, in December 1982, she asked her supervisor, Ashman, how much time she could take for maternity leave. Ashman stated that maternity leave was for 6 weeks and that leave in excess of that period was treated as an extended illness covered by the leave of absence policy. Ashman told Stewart that she would need a doctor's statement and that she had to use accrued sick leave in 40-hour-per-week increments. Ashman further cornmented that the policy had not changed; they were just enforcing it On January 28, 1983, Ashman similarly advised Stewart, adding that if Stewart applied for an extended leave of absence beyond the 6 weeks of maternity leave, disposition of the appli- cation would depend on the staffing requirements of the hospital. Stewart testified that on February 1 Ashman told her that Ashman had been instructed to handle maternity leave as she had done in the past. Therefore, Ashman told Stewart, she would have to give her the 90 days. 224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Stewart understood from Ashman's earlier statements that Stewart, would be required to use her sick leave in 40-hour blocks. Therefore, as this would mean exhaust- ing her accrued sick leave during the first month, Stew- art, before departing on maternity leave, prepaid insur- ance premiums covering the second and third months. After beginning her leave, the employee was advised by Supervisor Mitchell that she could use sick leave in 24- hour-per-week increments . Stewart elected to do so and her prepayments for health insurance were refunded. Nurse Judy Mason testified that she took maternity leave early in 1982. Although offered a period of 3 months, she chose to take 7 weeks. She returned to the same job and was not required to produce a medical note. Mason credibly testified that prior to her second ma- ternity leave, in November 1982, she was told by her su- pervisor, Walvoord, that the policy had changed and that maternity leave was for a period of 6 weeks, not 3 months. Walvoord repeated this assertion to Mason and two other pregnant nurses in December adding that if complications arose, or the employee could not be at work at any time, a medical note was required . 5 Accord- ingly, Mason took 6 weeks of leave following delivery. When she returned, she produced a doctor's certificate. Employee Rebecca Waldo took a 90-day maternity leave in 1976, and returned to her former job. During her second pregnancy, she testified , in June 1982, she asked Supervisor Ashman about going to part-time status, on August 23, and then returning to full-time status prior to her expected October delivery, as had been done in the past. The request was granted . In late September or early October Ashman told Waldo that she would be the last person allowed to do this. One week later, Waldo testified, Ashman told her that there was a possibility that she, Waldo, would be called back after 6 weeks of maternity leave. Waldo replied that, in the past, maternity leave had been for a 90-day period. Ashman said that the supervisors always had had the right to call employees back, as needed. If an em- ployee was called back, and did not return, Ashman said, her job might not be there when she did come back to work. Ashman added that hospital staffing needs prob- ably would allow for Waldo to take 90 days of leave and that Ashman wanted, or requested, that Waldo use her sick leave in 40-hour-per-week blocks. Ashman added that Waldo would need to submit medical notes upon leaving for and returning from maternity leave. She stated that that had always been the policy but now Re- spondent was enforcing it. Waldo took 90 days maternity leave and used her sick leave in 40-hour-per-week increments. She returned to her former position after producing a doctor's note. Nurses Kathleen Kucera and Vickie Danek testified that on February 14, 1983, they were told by their super- visor, Maziarski, that he was limiting their maternity leave to 6 weeks, because of staffing problems. He threatened to replace them if they took a longer period of time. However, shortly thereafter, at a staff meeting, 5 To the extent that Walvoord's rather confused testimony differs from that of Mason, it is not credited Maziarski informed them that , under maternity leave policy, they could take 90 days' leave. Both chose to take some 9 weeks. On May 31, 1983, a decertification petition was filed with the Board by a group of unit employees calling themselves "Concerned Employees for a Better Bryan." On June 1, Respondent's attorney, William Harding, sent a letter to Thom Cope, attorney for the dissident em- ployees, seeking any information "indicating that the Ne- braska Nurses Association no longer enjoys the support of a majority of the employees within the bargaining unit." Cope replied on June 2 , stating that the decertifi- cation petition was supported by substantially more than 30 percent of the unit employees. He further claimed to have contacted almost every employee by telephone which revealed that a majority "do not want the union." On June 6, Harding sent another letter to Cope stating that "I am uncertain that the hospital possesses sufficient information to warrant a conclusion that the union does not continue to enjoy the support of a majority," and seeking any additional information which would justify withdrawal of recognition. Thereafter, on June 20, Cope sent a letter to Harding with enclosures of "affidavits from several members of the bargaining unit which indi- cate that a majority of the unit does not want the Ne- braska Nurses Association to represent them or wants a new election. We will not specifically divulge the names, because they have sought and will receive anonymity." The June 20 letter was accompanied by 11 form affida- vits, reading as follows: , being first duly sworn on oath deposes and says that she is a member of the bar- gaining unit at Bryan Memorial Hospital. That she has personally spoken to or communi- cated with those individuals listed in Exhibit A, which is herein incorporated by reference as though fully set forth herein. That of the people listed in Ex- hibit A have told her that they no longer wanted the Nebraska Nurses Association (C.A.R.E.) to rep- resent them, or that they wanted a new election. That affiant can identify those individuals, but chooses not to do so, because they have expressed a desire for anonymity and confidentiality, and there- fore affiant will not disclose their names at this time. Further, affiant sayeth not. The affidavits, taken together, claim, on their face, that some 225 of the approximately 379 unit employees no longer desire representation or want a new election. Following receipt of this letter, on June 20, Respond- ent withdraw recognition from the Union. At trial, the parties stipulated that the basis of Respondent's action was its receipt of the foregoing letter from Cope. There- after, about July 1, 1983, Respondent, unilaterally, made changes in its health insurance plan for bargaining unit employees. BRYAN MEMORIAL HOSPITAL 225 C. Conclusions It is not disputed that the Union at no time agreed to implementation of changes in maternity leave policy. The parties further agree that Respondent never notified the Union that changes in maternity leave policy would be implemented . As shown in the statement of facts, Re- spondent did institute changes in maternity leave policy during the mid-1982, to February 1983 period, and those unilaterally instituted changes were substantial , albeit, they were applied in a less than uniform and clear manner. The changes in policy had the effect of sharply decreasing the time available for maternity leave; requir- ing employees to produce a physician's note; condition- ing leave on supervisory approval and Respondent's staffing requirements; subjecting employees on maternity leave to the possibility of being displaced from their jobs; limiting the options available to employees in the use of their accrued sick leave while on maternity leave and limiting employees ' previously available rights to transfer between full-time and part-time status . Such changes in terms and conditions of employment are substantial and not de minimus. By instituting, unilaterally, changes in its maternity leave policy , Respondent violated Section 8(a)(5) of the Act. I further find that on June 20, 1983, when it withdrew recognition from the Union , Respondent violated Section 8(a)(5) of the Act. In reaching this conclusion , I reject the contention that the June 20 letter , from the dissident employees' attorney to Respondent's attorney, presented Respondent with objective considerations justifying a good-faith doubt of the Union's continued majority status. For the enclosed affidavits may be viewed, only, as sufficient to convey to Respondent the views of the 11 affiants, and not the views of unnamed other employees. It is well settled that employer receipt of employees' un- verified assertions, that the majority of employees no longer support their union representative, is insufficient to create "a reasonably based conviction that the claimed desire of those employees to be rid of the union " is fac- tual. Cornell of California, 222 NLRB 303 (1976).6 More- over, in this case, the affidavits, on their face, do not assert that a majority no longer want representation. Rather those documents claim , only, that a majority either do not want continued representation or desire to have an election. Having found that Respondent unlawfully withdrew recognition on June 20 , 1983, I find it follows that, on or about July 1, when it unilaterally instituted changes in its health insurance plan for bargaining unit employees, Re- spondent further violated Section 8 (a)(5) of the Act. I so find and conclude. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its operations de- scribed in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor dis- 6 See also Dalewood Rehabilitation Hospital, 224 NLRB 1618 (1976) putes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practice conduct in violation of Section 8(a)(5) and (1) of the Act, I shall recommend that it be ordered to cease and desist and to take certain affirma- tive action designed to effectuate the policies of the Act. CONCLUSIONS OF LAW 1. The Respondent, Bryan Memorial Hospital, is an employer engaged in commerce, and in operations affect- ing commerce, within the meaning of Section 2(2), (6), and (7) of the Act. 2. Nebraska Nurses Association affiliated with Ameri- can Nurses Association, is a labor organization within the meaning of Section 2(5) of the Act. 3. The certified unit of nurses employed by Respond- ent constitutes a unit appropriate for the purposes of col- lective bargaining within the meaning of Section 9(b) of the Act. 4. At all times material, the Union has been, and is now, the exclusive representative of all employees in the aforesaid bargaining unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing to recognize and bargain with the Union, as exclusive representative of the bargaining unit employees, concerning rates of pay, wages, hours, and other terms and conditions of employment, Respondent has engaged in unfair labor practice conduct within the meaning of Section 8(a)(5) of the Act. 6. By making unilateral changes in its maternity leave policy and its health insurance plan for bargaining unit employees, Respondent has engaged in unfair labor prac- tice conduct within the meaning of Section 8(a)(5) of the Act. 7. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed7 ORDER The Respondent, Bryan Memorial Hospital, Lincoln, Nebraska, its officers, agents, successors and assigns, shall 1. Cease and desist from (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of em- ployment with Nebraska Nurses Association affiliated with American Nurses Association as the exclusive bar- gaining representative of its employees in the certified unit of nurses. I If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended 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 pur- poses 226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Making unilateral changes in the terms and condi- tions of employment of the bargaining unit employees. (c) 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 effectuate the policies of the Act (a) On request, bargain with the Union as the exclusive representative of all employees in the aforesaid appropri- ate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an un- derstanding is reached, embody such understanding in a signed agreement. (b) On request of the Union, rescind the unilateral changes made in the maternity leave policy and the health insurance plan for bargaining unit employees. (c) Make the unit employees whole for any losses they may have suffered as a result of the unilateral changes in terms and conditions of employment, with interest there- on to be computed in accordance with Florida Steel Corp., 231 NLRB 651 (1977). See generally Isis Plumbing & Co., 138 NLRB 716 (1962). (d) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (e) Post at Lincoln, Nebraska facility, copies of the at- tached notice marked "Appendix."8 Copies of the notice, on forms provided by the Regional Director for Region 17, after being signed by the Respondent's authorized representative, shall be posted by the Respondent imme- diately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the 8 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT refuse to bargain collectively concern- ing rates of pay, wages, hours and other terms and con- ditions of employment with Nebraska Nurses Association affiliated with American Nurses Association, as the ex- clusive bargaining representative of our employees, in the certified bargaining unit of nurses. WE WILL NOT make unilateral changes in the terms and conditions of employment of the bargaining unit em- ployees. WE WILL NOT in any like or related manner, interfere with, restrain or coerce employees in the exercise of the rights guaranteed them in Section 7 of the Act. WE WILL, on request, bargain with the Union as the exclusive representative of all employees in the appropri- ate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an agreement is reached, WE WILL embody such agreement in a signed contract. WE WILL, on request of the Union, rescind the unilat- eral changes made in the maternity leave policy and the health insurance plan for bargaining unit employees. WE WILL make employees whole for any losses they may have suffered as a result of the unilateral changes in terms and conditions of employment, plus interest. BRYAN MEMORIAL HOSPITAL