Saints Mary And Elizabeth Hospital

STS. MARY & ELIZABETH HOSPITAL 73 Nazareth Literary & Benevolent Institute, Inc., d/b/a Saints Mary and Elizabeth Hospital and Kentucky Nurses' Association. Cases 9-CA- 20290 and 9-CA-20370 7 November 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND STEPHENS On 9 May 1984 Administrative Law Judge Mi- chael O. Miller issued the attached decision. The Respondent filed exceptions and a supporting 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 as modified. THE AMENDED REMEDY The Respondent has excepted to the judge's re- quirement that the Respondent cease and desist from unilaterally changing "the hours of employ- ment of recovery room nurses," in view of the judge's finding that the Respondent's violation of the Act with regard to these unit employees con- sisted only of the Respondent's unilaterally sending them home prior to the end of their regularly scheduled shift.2 We find merit in this exception and shall amend the remedy accordingly.3 AMENDED CONCLUSIONS OF LAW Substitute the following for further Conclusion of Law 2. 1 In his analysis of the Respondent's bargaining obligation, the judge applied the principles articulated in Presbyterian Hospital, 241 NLRB 996 (1979), and Dow Chemical Co., 250 NLRB 756 (1980) The Respondent excepts to application of those principles here, contending that the Board should instead apply the "at risk" doctrine of Mike O'Connor Chevrolet, 209 NLRB 701 (1974), to the postdecertifiication election unilateral changes at issue Even assuming the applicability of the "at risk" doc- trine, however, we would still find the 8(a)(5) violations here because the Board has determined that the Union won the election and thereby reaf- firmed its majority representative status. See Sts Mary'& Elizabeth Hospi- tal, 274 NLRB 607 (1985), and 277 NLRB No. 45 (Nov 12, 1985) (not reported in Board volumes). On a related point, we note our agreement with the judge that the filing of a decertification petition, standing alone, does not permit an em- ployer to make unilateral changes Finally, we find no need to rely on the judge's theory of continuing violation in finding the alleged 8(a)(5) unfair labor practices here. 2 That provision of the Order is too broad not only because of the lun- ited nature of the conduct underlying the violation but also because the exact schedule the nurses are to work is a management right under the contract. a We shall clarify the Order and notice to conform to the violations found "2. The Respondent has violated Section 8(a)(5) and (1) of the Act by: failing and refusing to fur- nish the Union with a list of the names and ad- dresses of current unit employees, as requested; unilaterally changing the job-posting procedures; failing to distribute copies of the collective-bargain- ing agreement to new employees without notice to or bargaining with the Union; and unilaterally sending recovery room nurses home prior to the end of their regularly scheduled shift." ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Nazareth Literary '& Benevolent Insti- tute, Inc., d/b/a Saints Mary and Elizabeth Hospi- tal, Louisville, Kentucky, its officers, agents, suc- cessors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 1(a). "(a) Refusing to furnish the Union with informa- tion relevant and necessary to the performance of its duties as collective-bargaining representative of the Respondent's employees; and unilaterally changing terms and conditions of employment in- cluding job-posting procedures, the distribution of copies of the expired contract to new employees, and sending home recovery room nurses prior to the end of their regularly scheduled shift, without notice to and bargaining with the Union."' 2. Substitute the attached notice for that of the administrative law judge. 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. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT refuse to furnish information to the Union that is relevant and necessary to the per- 282 NLRB No. 10 74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD formance of the Union's duties as collective-bar- gaining representative of our employees. WE WILL NOT, without prior notice to and bar- gaining with the Union, unilaterally change job- posting procedures; discontinue distributing copies of the contract to new employees; or send home recovery room' nurses prior to the end of their reg- ularly scheduled shift. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL give the Union a list of the names and addresses of current bargaining unit employees. WE WILL give copies of the expired ' contract to all bargaining unit employees hired since 26 April 1983. WE WILL make- the recovery room nurses whole for any wages they lost as a result of having been involuntarily required to leave work prior to the end of their .shifts. WE WILL rescind the job-posting procedures pre- viously announced ^ on 14 September 1983 to the extent that they apply to employees within the cer- tified bargaining unit and WE WILL resume our practices with respect to job postings and shift changes. WE WILL recognize and, on request, bargain with Kentucky Nurses' Association as the exclusive bargaining representative- of- all the employees in the bargaining unit described' below prior to making any changes in the terms and conditions of employment of the employees in that unit. The ap- propriate unit is: All full-time and ` regular part-time registered nurses employed by the Employer at its Louis- ville, Kentucky hospital, including charge nurses, nursing instructors, admitting and dis- charge planning nurses, the health nurse, the health care coordinator, the triage nurse, and graduate nurses, but excluding all other em- ployees, and all guards, all head nurses, and all other- supervisors as defined in the Act. NAZARETH LITERARY & BENEVO- LENT INSTITUTE, INC., D/B/A SAINTS MARY AND ELIZABETH HOSPITAL Carol L. Shore, Esq., for the General Counsel.' William A. Blodgett Jr., Esq. (Woodward, Hudson & - Fulton), of Louisville, Kentucky, for the Respondent. Margaret Miller, of Louisville, Kentucky, for the Charg- ing Party. DECISION STATEMENT OF THE CASE MICHAEL O. MILLER, Administrative Law Judge. This case was heard on March 5 and 6, 1984, in Louisville, Kentucky, based on unfair labor practice charges filed by Kentucky Nurses' Association (the Union) on October 26 and November 21, 1983, and a complaint issued by the Regional Director for Region 9 of the National Labor Relations Board (the Board) on December 7, 1983. The complaint alleges that Nazareth Literary & Benevolent Institute, Inc., d/b/a Saints Mary and Elizabeth Hospital (Respondent) violated Section 8(a)(5) and (1) of the Na- tional Labor Relations Act (the Act). Respondent's timely filed answer, as amended, although admitting cer- tain factual allegations of the complaint, denies the com- mission of any unfair labor practices. All parties were afforded full opportunity to appear, -to examine and cross-examine witnesses, and to argue orally. Briefs, which. have been carefully considered, were filed on behalf of the General Counsel and Re- spondent. Based on the entire record, including my observation of the witnesses and their demeanor, I make the follow- ing FINDINGS OF FACT 1. RESPONDENT'S BUSINESS AND THE UNION'S LABOR ORGANIZATION STATUS-PRELIMINARY' CONCLUSIONS OF LAW Respondent is a Kentucky corporation engaged in Louisville, Kentucky, as a health care institution, operat- ing a hospital providing in-patient and out-patient medi- cal and professional care services. The complaint alleges, Respondent admits, and I find and conclude that- Re- spondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. The complaint alleges, Respondent admits, and I find and conclude that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts On April 24, 1980, the Union was certified as the col- lective-bargaining representative of Respondent's em- ployees in the following unit: All full-time' and regular part-time registered nurses employed by the Employer at its Louisville, Ken- tucky hospital, including charge nurses, -nursing in- structors, admitting and discharge planning nurses, the health nurse, the health care' coordinator, the triage nurse, and graduate nurses, but excluding all other employees, and all guards, all head nurses, and all other supervisors as defined in the Act." 1 Respondent admits that this unit was certified by the Board in Case 9-RC-13249, but denies that it was a unit appropriate for collective-bar- gaining purposes The issue of unit appropriateness was not litigated Continued STS. MARY & ELIZABETH HOSPITAL Negotiations between Respondent and the Union result- ed in a collective-bargaining agreement effective on No- vember 12, 1981, through October 31, 1982. That con- tract contained a comprehensive management-rights clause and other language pertinent to the issues in- volved herein, as more fully described infra. In July 1982, each party served notice on the other of its intent to seek modifications or termination of that contract. On July 21, 1982, in Case 9-RD-1103, a petition to de- certify the Union was filed. A Stipulation for Certifica- tion on Consent Election was approved on August 16, 1982, and an election was conducted in the certified unit on September 9, 1982. The tally of ballots revealed that 126 votes were cast for, and 124 votes were cast against, continued representation; there were 4challenged ballots that were sufficient in number to affect the results of the election. A hearing on the challenges was held on Octo- ber 19, 1982, and on November 4, 1982, the hearing offi- cer issued her Report on Challenged Ballots and Recom- mendation to the Board. The hearing officer recommend- ed that all four challenges be sustained.2 Subsequent to the decertification election, the parties met on eight occasions to negotiate a new collective-bar- gaining agreement . In the second of these meetings, the Union proposed a revised recognition clause that would have included the clinicians and specialists within the unit. It withdrew that proposal in the fifth meeting. The last meeting was held on January 12, 1983; the parties did not reach agreement on that date. Prior to this last meeting, Respondent had received in- formation tending to indicate that at least two and possi- bly three of the challenged voters had voted against the Union and did not desire union representation. Thus, on the night following the election, the patient/family clini- cian told Jean Straub, Respondent's director of surgery, recovery, and outpatient surgery, that she had voted for the hospital (i.e., against union representation) and was upset that her vote had been challenged. She repeated this statement several times thereafter, indicating to Straub, that she did not wish to be represented by the Union. Similarly, in a meeting held sometime in Novem- before me Based on the certification, I find and conclude that this is a unit appropriate for the purposes of collective bargaining within the meaning of Sec. 9(b) of the Act. 2 The challenged voters were registered nurses who held the positions of gerontology clinical specialist, interostomal clinician, patient/family clinician, and nurse/professional recruiter. Their ballots had been chal- lenged because their job positions were outside the existing bargaining unit Regarding the first three positions, the hearing officer found that al- thoughI they likely would have been included in an appropriate unit in an initial RC or unit clarification proceeding , they were created after the certification but before agreement on a contract was reached and they were not discussed in the negotiations or included under the contract She concluded that the votes cast by the occupants of those positions were properly challenged because "the only appropriate unit in a decerti- fication election is the existing or recognized bargaining unit," a unit that did not include or contemplate inclusion of the clinicians and specialists. The hearing officer further found that the nurse/professional recruiter was properly excluded inasmuch as she did "not share a substantial com- munity of interest with the 'other registered nurses.", Respondent filed ex- ceptions to the hearing officer's findings and conclusions with respect to the three nurses who occupied clinician and specialist positions, contend- ing that their votes should be counted inasmuch as the certified and stipu- lated unit was a unit of all registered nurses. The hearing officer's report and Respondent's exceptions thereto are still pending before the Board 75 her or December 1982, with the patient/family clinician and another clinician present, the gerontology clinical specialist told Virginia Wilkerson, Respondent's director of nursing, "If they would count our votes, there would be no Union." This same clinician told Wilkerson that she did not wish to be represented by the Union.3 Adding what it considered to be negative votes by nurses whom it deemed properly included within the unit (though the hearing officer had found otherwise) to the 124 votes against representation in the election, Re- spondent reached the conclusion that the Union no longer represented a majority of the hospital's registered nurses. On February 1, 1983, Respondent wrote the Union a letter stating, inter alia, the following: Please be advised that effective February 1, 1983, our Hospital is suspending all collective bargaining negotiations with your labor organization pending a final determination as to whether or not your labor organization represents a majority of nurses at our Hospital. It based that decision, it stated, on evidence of a lack of majority status, an intention to protect the hospital's legal right to seek judicial review that, it felt, would be waived should it "continue to negotiate with your labor organization and sign an agreement," and a stated belief- . . . that the interest of the Hospital and each indi- vidual, professional nurse is best served by the Hos- pital's direct communication and voluntary actions during this potentially lengthy period of judicial review. It offered to resolve the issue by having the votes of the challenged voters counted. The Union acquiesced in Respondent's suspension of negotiations; there were no further negotiations or other communications between the parties subsequent to Feb- ruary 1, 1983,4 until the Union's demand for information discussed infra. The Union continued to maintain the locked bulletin board that was assigned to it in the nurses' lounge. As discussed in greater detail in the following section, between July and November 1983, Respondent made various changes in terms and conditions of employment without first discussing those changes with the Union. Additionally, in October, Respondent rejected the Union's request for a list of the names and addresses of current unit employees. B. Analysis and Conclusions 1. The bargaining obligation In 'Presbyterian Hospital, 241 NLRB 996 (1979), the Board applied "the general rule that election results are not effective until certification" to a situation similar to the instant case in' which an employer was alleged to 2 Wilkerson was also informed by another supervisor, Norma Mueller, that both the interostomal clinician and nurse professional recruiter had told her that they had voted against the Union 4 All dates hereinafter are 1983 unless otherwise specified. 76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD have violated Section 8(a)(5) by unilaterally altering terms and conditions of employment after a decertifica- tion election but before the results of that election were certified.5 Quoting from Trico Products Corp., 238 NLRB 1306, 1307 (1978), the Board stated: To hold otherwise is to invite instability during the transition period when the employees' choice of representative is in doubt. Election results are not always determinative. If the status of the parties were to change immediately upon the tally of bal- lots, the possibility of substained objections and rerun elections might lead to a number of changes in the collective,-'bargaining relationship before a representative is finally certified. The general rule that the election results are not effective until certi- fication lends certainty and stability to the process, since the parties may safely maintain the status quo until the representation question is conclusively re- solved by the Board. The Board held that the employer was obligated to re- frain from making unilateral changes in the terms of the collective-bargaining agreement from the date of the election until the, certification of results issued and that its failure to refrain violated Section 8(a)(5) of the Act. The same conclusion and result was reached in Dow Chemical Co., 250 NLRB 756 at 756 (1980), in which the Board stated: "A union ostensibly losing a decertification election remains" the established bargaining representative . until the certification of results issues."8 Here, the record establishes that the Union ostensibly won the decertification election and that victory had been sustained, at least at the initial hearing on the chal- lenges, in the hearing officer's report. This fact, and the unrebutted (as I find here) presumption that the Union's previously established (and certified) majority status con- tinues,' makes this case an appropriate vehicle for appli- cation of the Board's Presbyterian Hospital-Dow Chemical rule. Citing Dresser Industries, supra, footnote 7, Respondent argues that it had no obligation to furnish the Union with the requested information or to refrain from taking unilateral action inasmuch as it had properly withdrawn recognition "upon forming a good faith belief, based on the objective'considerations of the vote tally [126 votes 5 In Presbyterian Hospital, the union had ostensibly lost the election but had filed objections 6 Enforcement of the Board's decision in Dow Chemical was denied at 660 F 2d 637 (5th Cir. 1981) The court held that the appropriate rule would only require an employer to act at its peril in unilaterally altering conditions of employment prior to certification, that is, that the employ- er's conduct would be found violative only if the union were to be ulti- mately certified as the employees' representative In so holding, the court applied the rule in Mike O'Connor Chevrolet, 209 NLRB 701 (1974), enf denied on other grounds 512 F 2d 684 (8th Cir. 1975). Mike O'Connor Chevrolet involved actions taken by an employer while objections and challenges were pending following an initial representation election, rather than a decertification proceeding. Sound principles of administra- tive law, of course, compel me to follow the law as determined by the Board unless and until reversed by the Supreme Court. 7 Dresser Industries, 264 NLRB 1088 (1982); Flex Plastics, 262 NLRB 651 (1982), enfd. 726 F 2d 272 (6th Gr. 1984); Barrington Plaza & Trag- niew, 185 NLRB 962 (1970), enfd. in relevant part 470 F 2d 669 (9th Cir 1972) in favor of, and 124 against, representation] and the de- clared [negative] votes of the three challenged voters, that the Union no longer represented a majority of the nurses." As noted above, there is a presumption, stem- ming from its certification and the expired agreement, that the Union continued as majority representative. The burden' of rebutting that presumption rests on the party seeking to do so, here the Respondent, and "clear, cogent and convincing" proof is required. NLRB v. Flex Plastics, supra 'at 275 and 262 NLRB at 656; NLRB v. Pennco, Inc., 684 F.2d 340 (6th Cir. 1982), enfg. 250 NLRB 716 (1980). The factors on which Respondent relies, as set forth above, fall short of the requisite level of proof. The filing of the RD petition alone, of course, does not support a withdrawal of recognition. Dresser In- dustries, supra; Flex Plastics, supra.8 Neither is the close vote in the RD election significant in and of itself. Massey-Ferguson, Inc., 184 NLRB 640, 641 (1970); Indus- trial Motor Sales, 177 NLRB 270, 273 (1969), and cases cited therein at fn. 16. Here, however, Respondent would add to the close vote the information it had received that three chal- lenged voters whom it believed belonged in the unit had voted against the Union and did not desire representa- tion. This contention must be rejected. The only appro- priate voting unit for RD purposes is the existing or rec- ognized bargaining unit. WAPI-TV-AM-FM, 198 NLRB 342 (1972); Booth Broadcasting Co., 134 NLRB ,817 (1962). The three voters were challenged on the Union's belief that they were not within that unit and, before Re- spondent's purported withdrawal of recognition, the Board's hearing officer sustained those challenges. Under those circumstances, Respondent's opinion about their eligibility does not establish the requisite "clear, cogent and convincing" objective considerations to support its alleged good-faith belief.9 Moreover, the issue of their eligibility to vote was (and still is) pending before the Board. Respondent's withdrawal of recognition on, its opinion of how the Board will rule in the ,pending case is an arrogation of a function solely reserved to the Board. If the Board "will not eschew its statutory obligation to decide" union accretion issues in a setting involving de- ferral to an impartial arbitrator (Hershey Foods Corp., 208 NLRB 452, 457 (1974)) it certainly cannot eschew that responsibility here and permit a party to effectively decide the very representation issue pending before it. Accordingly, I find, that Respondent has failed to es- tablish "clear, cogent and convincing" objective consid- erations supporting a good-faith belief that the Union no longer enjoyed pajority support. It remained obligated e Respondent's argument that the Board should reconsider and reverse Dresser Industries and reinstate the earlier rule of Telautograph Corp., 199 NLRB 892 (1972), is not appropriately addressed to me I would note, however, that even under the Telautograph rule, an employer is only re- quired by the filing of an RD petition to terminate ongoing negotiations for a new agreement. The incumbent union is still permitted to administer its contract and process grievances e Nothing is added to Respondent's position by evidence that the Union, at one time in the negotiations for a new agreement , sought to have these three job classifications included in the unit If anything, such evidence helps establish the understanding of the parties that they were not considered as having been included within the unit STS. MARY & ELIZABETH HOSPITAL to bargain with the Union as the . representative of-its registered nurses, to deal with it as the incumbent Union, and to refrain from unilaterally changing terms and con- ditions of employment. Those terms and conditions are as set forth in the expired contract. Cummins Component Plant, 259 NLkB 456, 465 ( 198 1). 2. The 10(b) defense Respondent further contends that it clearly and un- equivocally withdrew recognition from the Union on February 1, 1983, and -that, inasmuch as no unfair labor practice charge was filed against it within 6 months of that date, its subsequent refusal to furnish information and its alleged unilateral changes cannot be challenged even by charges timely filed as to those acts. Respond- ent's argument must fail because there was no clear and unequivocal withdrawal of recognition on February 1, By its terms, Respondent's February 1 letter purported not to withdraw recognition unconditionally, but only to suspend negotiations "pending a final determination as to whether or not your labor organization represents a ma- jority of nurses at our hospital." It further offered to resume bargaining if the Union would withdraw its chal- lenges and the resulting count revealed majority support for representation. A refusal to bargain that is contingent on other occurrences does not start the statute of limita- tions running. In Bay Medical Center, 252 NLRB 1138 (1980), the employer had repeatedly refused to bargain with the union until "the legalities of the unit question are decided." Approximately 1 year after the first ' such refusal, the employer unilaterally changed hours of em- ployment. The Board at footnote 3 stated: Given the uncertainty inherent in Respondent's con- tingent refusals to bargain, we agree with the Ad- ministrative Law Judge's conclusion that the 10(b) period did not begin to run until Respondent unilat- erally implemented the change in the . . . workday. See also Upper Mississippi Towing Corp., 246 NLRB 262 (1979), in which the, employer's refusal to bargain with the incumbent union over a new contract because of a petition filed by an outside union was held not to be the equivalent of a withdrawal of recognition.10 Respondent's reliance on Machinists Local 1424 (Bryan Mfg.) v. NLRB, 362 U.S. 411 (1960), and NLRB v. McCready & Sons, 482 F,2d 872 (6th Cdr. 1973), is mis- placed. In Bryan, unlike the instant case, the occurrence within the limitations period (enforcement of a facially valid union-security clause) in and of itself did not con- 10 It is recognized that Upper Mississippi Towing is, in some respects, distinguishable. Thus, in that case, unlike here, the employer never told the incumbent union that it doubted that union's majority status . And, at the time Upper Mississippi Towing arose, Shea Chemical Corp., 121 NLRB 1027 (1958), mandated the cessation of ongoing negotiations during the pendency of a rival's petition At the time of the events here, Dresser In- dustrres, supra, required that the employer continue to negotiate with the incumbent In both cases, however, the employer continued some at- tributes of representational status In Upper Mississippi Towing, the em- ployer continued to furnish seniority rosters to the incumbent union and to advise it of the location of its boats; in the instant case, Respondent permitted the Union to retain access to and control of its own bulletin board in the nurses' lounge 77 stitute, an -unfair labor, practice and could only be found violative by reliance on the recognition of a minority union, which had occurred beyond the limitations per- riod. Here, the acts charged as violative, a refusal to fur- nish information and alleged unilateral changes, are ide- pendently violative. In McCready, unlike the instant case, the act charged to be violative, a refusal to execute an agreement, was identical to the act that occurred more than 6 months prior to the filing of the charge. More- over, there, unlike here, the employer's refusal to sign was an unequivocal act, not contingent on any future event. In any event, as previously noted, I am bound to follow the law as enunciated by the Board and, to date, the Board continues to apply the theory of continuing violations in appropriate cases, contrary to McCready. Thus, in Al Bryant, Inc., 260 NLRB 128, 135 (1982), it was held that repudiation of a collective-bargaining agreement outside the 10(b) period did "not absolve' a re- spondent from the unfair labor practices which inure[d] from its continuing failure within the 10(b) period, on demand, to execute or formally abide by such agree- ment." Similarly, in Chesapeake & Potomac Telephone Co., 259 NLRB 225, 230 (1981), enfd. 687 F.2d 633 (2d Cir. 1982), an employer's refusal to furnish relevant in- formation prior to the 10(b) period did not insulate it from a finding of violation based on its subsequent refus- al to furnish that same information when the request was made within 6 months of the filing of the charge.11 See also the Board's decision in Flex Plastics, supra, footnote 26. There, I found, as an alternative basis for rejecting a 10(b) defense, that the union's demand and the employ- er's repeated refusal within the 10(b) period raised a new and timely unfair labor practice notwithstanding that the employer's initial withdrawal of recognition had oc- curred outside the 6 months' limitations period. 3. Refusal to furnish information On September 22, the Union's executive director wrote Respondent's vice president of, human resources, Thomas Pilgermayer, requesting "a current list of names and addresses for all bargaining unit nurses." On October 11, Pilgermayer,replied: I must respectfully decline to respond to your re- quest of September 22, 1983, until such time [as] the issue, which is now before the National Labor Rela- tions Board, has been completely resolved. In Andy Johnson Co., 230 NLRB 308, 309 (1977), the Board summarized the applicable law, as follows: It is well established that wage and employment information pertaining to bargaining unit employees is presumptively relevant'for the purposes of collec- tive bargaining and contract adminstration inasmuch as such information concerns the heart of the em- ployer-employee relationship, and that such infor- i 1 The discussion in Chesapeake & Potomac Telephone includes a review of those circuit court decisions both accepting and rejecting the continuing violation theory. 78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mation must be provided upon request to the unit employees' bargaining representative.2 In addition, it is well settled that a union is not required to show the precise relevance of such requested information unless the employer comes forth with effective re- buttal.3 2 Western Electric, Inc, 225 NLRB 1378 (1976); Hotel Enter- prises, Inc., d/b/a Royal Inn of South Bend, 224 NLRB 810 (1976); Warehouse Foods, A Division of ME Carter and Company, Inc., 223 NLRB 506 (1976); Dynamic Machine Co., 221 NLRB 1140 (1975), Building Construction Employers Association of Lincoln, Nebraska and M.W. Anderson Construction Co., 185 NLRB 34 (1970), Cowles Communications, Inc, 172 NLRB 1909 (1968); Curtiss-Wright Cor- poration, Wright Aeronautical Division, 145 NLRB 152 (1963), enfd 347 F 2d 61 (C A 3, 1965). 3 Curtiss-Wright Corporation, Wright Aeronautical Div., supra at 69. Here, as in Andy Johnson, the Respondent refused the Union's request for the presumptively relevant current list of the names and addresses of unit employees without asserting any reasons for that refusal (other than the pendency of the RD case). On brief, Respondent only as- serts its contentions with respect to Section 10(b) and its withdrawal of recognition in defense of that refusal. As I have rejected those defenses supra, I find that Respond- ent is, and was at the time of the demand, under an obli- gation to furnish this information to the Union on its re- quest, and that its refusal to do so violated Section 8(a)(5) and (1) of the Act, 12 4. The alleged unilateral changes a. Job posting procedures and criteria The complaint alleges, and Respondent's amended answer admits, that about September 14, "Respondent al- tered the job-posting procedure and criteria for in-house transfers of employees." The contract that expired on October 31, 1982, article XV, provides procedures whereby nurses could initiate requests to change their position from one unit and/or shift to another. In article XVI, it provides procedures for the posting of openings in permanent bargaining unit positions together with the criteria for filling those positions. In the negotiations that ended on January 12, Respondent had proposed a new article XVI. The Union basically agreed with Respond- ent's proposal but sought the addition of a 5-day posting period and a procedure for the notification of affected employees. With, the inclusion of those items, Respond- ent's proposal would have been essentially acceptable to the Union; no agreement was reached and the parties were to discuss this proposal in the next meeting. There were, of course, no further meetings. On September 14, Respondent posted,and implemented a new job-posting procedure for all hospital personnel including the nurses. The new procedure provided for 10-day posting. It also provided for notification of affected employees of the status of their requests within 10 days of the receipt of 12 I note, as pointed out by the General Counsel , that pursuant to the expired agreement , art. XIV, sec 5, the furnishing of such a list to the Union was, in addition to being a statutory obligation , one of the condi- tions of employment that Respondent was obligated to maintain. such requests. In addition, it provided that shift changes within a given unit were not subject to the posting pro- cedure but were to be made, at least within a unit, by the head nurse, language that arguably would eliminate rights previously established in article XV. Finally, the contract language and Respondent's proposal of January 12 had stipulated that the criteria Respondent would apply in selecting employees to fill posted positions were "not to be unreasonably applied." The policy adopted on September 14 did not include the quoted language. Respondent contends that no violation may be found in the foregoing conduct inasmuch as the changes were essentially those already agreed to by the Union on Janu- ary 12. Although many were changes similar to those to which the Union had agreed, it is clear that others (the 10-day posting and the elimination of the language deal- ing with reasonable application of the criteria) were not. Moreover, Respondent's new procedure appears to elimi- nate rights that the nurses had with respect to shift changes; at least some discussion with the Union to clari- fy such an ambiguity was warranted. There was neither notice nor discussion. Accordingly, I must find that by its failure to notify the Union and discuss with it such changes in the terms and conditions of employment, Re- spondent has violated Section 8(a)(5) and (1) of the Act. b. Job criteria The complaint alleges, and Respondent's amended answer admits, that about July 7, Respondent altered the job criteria for three bargaining unit positions in the edu- cation instructor job classification. The evidence reflects that about July 7 Respondent instituted a requirement that candidates for this position possess a master's degree rather than the bachelor of science in nursing that had previously been required. Respondent contends, and I agree, that it was privi- leged to make such a change, unilaterally, by the terms of the management-rights clause in the expired agree- ment. In pertinent part the clause provides: [T]he Hospital retains the rights of normal manage- ment functions including, but not limited to .. . adopt policies affecting the selection of employees -. to determine the qualifications, training, experi ence and technical knowledge necessary for filling and/or maintaining any job and to judge an em- ployee's conformity thereto. Accordingly, I shall recommend that this allegation be dismissed.) 3 13 The General Counsel, although expressly not waiving her position with respect to this and certain other allegations, did not brief this issue. Contrary to the General Counsel's contention at the hearing, following expiration of a collective-bargaining agreement, the terms of its manage- ment-rights clause survive as terms and conditions of employment just as the benefit provisions of such an agreement survive. See Cummins Com- ponent Plant, supra at 465, Winn-Dixie Stores, 224 NLRB 1418, 1433 (1976) STS. MARY &I ELIZABETH HOSPITAL 79 c. Wage increase announcement The complaint alleges, and Respondent's amended answer admits, that sometime since September , Respond- ent announced and subsequently deferred a cost-of-living wage increase for unit employees. The General Counsel has not explained the basis on which this conduct is alleged to be violative and I can discern none. Accordingly, I shall recommend that her allegation be dismissed. d. Copies of the contract Article VII, "Distribution of Agreement," provides: The hospital shall provide, at its expense, a copy of this Agreement to all members of the bargaining unit and new members of the bargaining unit as they are employed. The complaint alleges, but Respondent denies, that Re- spondent failed to comply with this alleged term or con- dition of employment subsequent to June. Mary O'Bryan, staff nurse and chairperson of the Professional Registered Nurses, the Union's chapter in Respondent's hospital, tes- tified without objection that, in June, she questioned new employees and was informed that they had not received copies. She had no personal knowledge of when such copies were handed out and she has no personal knowl- edge about whether employees hired since June had been given copies of the agreement. Respondent argues ,that although most terms and con- ditions of employment continue after the expiration of a collective-bargaining agreement, the contractual right to receive a copy of the agreement is similar to the contrac- tual obligation imposed by union-security and dues- checkoff clauses, which, the Board has held, do not sur- vive contract expiration. Peerless Roofing Co., 247 NLRB 500 (1980)', The enforceability of a union-security obliga- tion, however, is dependent on the continued existence of a lawful union-security clause. Machinists District 14 (Burroughs Corp.), 231 NLRB 602 (1977)., No such condi- tion attaches to the obligation to distribute copies of the contract, expired or not; I can discern no reason to impose such a ' condition. One of the conditions of em- ployment for Respondent's nurses was that they would be given a copy of the document that sets forth their rights and ' obligations. That condition, I conclude, sur- vives expiration of the contract for as long as the em- ployer is obligated not to unilaterally change terms and conditions of employment. Respondent further argues that the General Counsel failed to establish that Respondent has not continued dis- tribution of the agreements . I cannot agree. In the ab- sence of any objection, and when considered in the con- text of Respondent's position with respect to the survival of the contract terms that makes probable its failure to distribute the contracts, O'Bryan's testimony, although hearsay, is sufficient to sustain the General Counsel's burden of proof. Colony Kitchens, 217 NLRB 671 fn. 6 (1975). See also RJR Communications, 248 NLRB 920 (1980). Respondent has failed to rebut the General Coun- sel's'prima facie case about this allegation. Accordingly, I find that by failing to distribute copies of the expired agreement to new employees, Respondent has unilateral- ly altered the ' terms and conditions of employment, in violation of Section 8(a)(5) of the Act. e. Overtime authorization Article XXVI, section 5, the overtime pay provision of the wage article in the expired contract , provides, that nurses shall 'be paid at the rate of 1-1/2 times the regular rate for all hours worked over 40 in a 7-day workweek. Nurses, it appears, made their own determinations about when overtime was required and were paid for all such hours worked. Respondent sought to reduce the amount of overtime in the department of nursing, and issued a memorandum,, dated October 24, to the head nurses, di- rectors of nursing, and supervisors implementing new overtime guidelines. Pursuant= to that memorandum, which was available to the staff nurses, when a nurse de- termined that overtime was required in order to com- plete her work, she would have to secure prior authori- zation from a nursing supervisor . Respondent's vice president of nursing, Eleanor Doughtery, testified that although the nurses' were not required to sign up for overtime 2 hours prior to the end of their shifts, they were asked to give their supervisors 2 hours' notice of impending overtime so that those supervisors could find extra help elsewhere in the hospital who might make the overtime unneccesary. They had not previously been asked to do this, i.e., check with their supervisors. Nurses were encouraged to reduce the amount of over- time they worked but, when necessary, were permitted to work overtime and were paid for all overtime worked whether or not they had secured prior authorization. 'Respondent's concern for the amount of overtime being worked arose, according to Wilkerson, when prob- lems with the level of patient census were observed during the fall of 1983. She sought to justify the over- time that was being worked , i.e., to make sure that it was necessary. The General Counsel has proffered no rationale for finding the adoption of this policy, which in no way con- flicted with ,the collective-bargaining agreement, to be an unlawful , unilateral change in working conditions and I see none. I agree with Respondent, for each of the rea- sons set forth in its brief, that there was no impropriety in adopting this policy. Thus, I find that such efforts to improve efficiency that do not conflict with any estab- lished practices or published rules and standards are in- herently within management's prerogative. Trading Post, 224 NLRB 980 (1976); Wabash Transformer Corp., 215 NLRB 546 (1974). I further fmd that the adoption of this policy was expressly privileged by the terms of the man- agement-rights clause, reserving to Respondent the right "to determine, assign and distribute overtime. " Finally, I agree that Respondent's direction that the nurses advise their supervisors of the need for overtime imposed no substantial burden on them. f. Short hours in recovery room Article X, section 5, of the expired contract provides that: 80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Nurses assigned to Operating Room, Recovery Room or Outpatient Surgery, working their regu- larly scheduled shift, will not be sent home prior to the end of that shift due to lack of work-unless such an arrangement is mutually agreed upon by both the nurse and the Hospital. In November 1983, as one of a number of economy measures occasioned by a drop in Respondent's patient census, Respondent began to send recovery room nurses home on the completion of their work but before the end of their shift on the average of once or twice a week without first securing their' agreement. In the operating rooms, Respondent always was able to secure enough volunteers so that no nurses were sent home against their wishes. In most cases, those who were sent home had al- ready worked the bulk of their shifts. 'Respondent acknowledges the foregoing as fact and recognizes that early dismissal of recovery room nurses constitutes a deviation from the contract. However, it contends that the adoption of this practice inadvertently arose 'from adoption of the budget day program, dis- cussed infra, and resulted in no adverse impact on the employees. Respondent promised that it would - be stopped. Therefore, it argues, no violation should be found. I cannot agree that this practice, which resulted in some employees being sent home with fewer hours of earnings than they were entitled to, had no adverse impact. It was a change unilaterally adopted and, as such, was violative of Section 8(a)(5) of the Act.14 g. Budget days The fluctuating and lowered hospital census that caused Respondent to begin releasing the recovery room nurses early and to adopt the overtime policy, as dis- cussed above, also caused Respondent to institute what it called its budget days program. Initially, in the late summer of 1983, the program was voluntary. Nurses whom Respondent deemed unnecessary to a given day's workload would be asked to volunteer to either not come in at all, to leave after reporting for work' but without putting in any hours, or to leave before the end of their shifts. In its initial stages, no one was required to participate. To this point, Respondent's budget day pro- gram was but a formalization of existing hospital prac- tices. However, on October 12, Respondent issued a memorandum entitled "Budget Days." That memoran- dum provided: In order to more economically respond to reduc- tion in work activity, it will become necessary for the Hospital to temporary [sic] reduce staff in a par- ticular department. Any such reduction will occur in the form of Budget Day Absence. A Budget Day is defined as that day or part of a day on which an employee is relieved of any sched- uled work responsibility due to a decrease in work demand as reflected by a change in occupancy and 14 The availability of extra work, on other shifts and other days, to make up for lost earnings resulting from having been sent home does not negate the adverse impact of Respondent's policy or work load for a patient unit or other Hospital de- partment. The memorandum provided that volunteers would first be sought within the affected unit but that, in the event that no volunteers could be found, an individual, selected from a seniority list for the department, would be re- quired to take, the budget day.15 All nurses, both part and full time participated in the budget day program. Employees were permitted to receive paid vacation hours for budget day assignments if they had accrued va- cation benefits. A budget day absence did not affect the employee's eligibility for any of the hospital's benefits, including the accumulation of vacation leave. Nurses who were assigned budget days were permitted to make up lost time by working on other shifts and in other de- partments when there were openings for which they were qualified. They were not permitted to bump less senior employees in order to continue- working in lieu of taking a budget day. The record reflects that from October through March 1, 1984, there have been 28 assigned, and 53 volunteered, budget days in the critical care department where 76 nurses are employed. In the medical-surgical care units, employing 102 registered nurses, there had been 74 vol- unteered budget days and 43 assigned budget days during the same period of time. The records for the emergency department are less complete but reflect that during 1983 there were two assigned budget days. Although the General Counsel is generally correct in asserting that even a single day off work without pay may be deemed a layoff (Clements Wire, 257 NLRB 1058 (1981)), I cannot find that under the terms of the expired contract, the parties contemplated that the involuntary loss of one shift or less would be governed by that con- tract's layoff provisions.. Rather, I find that Respondent meticulously and even reduntantly protected its right to adopt a work-scheduling device such as the budget day program, to meet unexpected changes in workloads. Thus, I note that article XVIII, "Layoff and Recall," on which the General Counsel relies to establish a change in the working conditions, provides for 14 days' written notice of layoffs and written recall notices. Such exten- sive notice provisions cannot have been intended to apply to "layoffs" of 1 day or less. Additionally, I note that although article VI, "Employee Status," defines a "Full-Time Nurse" as one who works a regular weekly schedule of three 12-hour, five 8-hour, or four 10-hour shifts, the budget day policy specifically provided that employees who were assigned a budget day would, not lose any benefit eligibility. Employee status as full or part time would not change by reason of a budget day assignment. On the other hand, as Respondent contends, the ex- pired contract, both in the management-rights clause and in the wage program, retains to the Employer the sole 15 The procedure, as adopted, did not provide for the least senor em= plgyee present always to- be relieved of duty Selection of those to be re- leased was made from a seniority list, according to reverse seniority, but each employee was required to take his or her budget day in turn, unless that individual had earlier volunteered for a budget day. STS. MARY & ELIZABETH HOSPITAL discretion to "establish, determine and change: shift start- ing and quitting times, daily and weekly hours of work, and number, time and length of shifts for groups of em- ployees and or individual employees." This language, I conclude, authorizes the Employer to schedule an em- ployee for less shifts in a week, or less hours in a shift, than that employee was usually scheduled, at least in the absence of other specific guarantees of a 40-hour week or 8-hour'day ' (as was provided for the operating room, out-patient surgical, and recovery room nurses). It privi- leged the Employer to establish the budget day program. Accordingly, I shall recommend that this allegation be dismissed. CONCLUSIONS OF LAW 1. At all times relevant hereim, the Kentucky Nurses' Association has been and is the exclusive representative of all the employees in the appropriate unit set forth below for purposes of collective bargaining with respect to wages, rates of pay, hours of employment, and other terms and conditions of employment within the meaning of Section 9(a) of the Act: All full-time and regular part-time registered nurses employed by the Employer at its Louisville, Ken- tucky hospital, including charge nurses, nursing in- structors, admitting and discharge planning nurses, the health nurse, the health care coordinator, the triage nurse, and graduate nurses, but excluding all other employees, and all guards, all head nurses, and all other supervisors as defined in the Act. 2. Respondent has violated Section 8(a)(5) and (1) of the Act by failing and refusing to furnish the Union with a list of the names and addresses of current unit employ- ees, as requested; unilaterally changing the job-posting procedures; failing to distribute copies of the collective- bargaining agreement to new employees without notice to or bargaining with the Union; and unilaterally chang- ing the hours of employment of recovery room nurses. 3. Respondent has not otherwise violated the Act. 4. The aforesaid labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY It having been found that' Respondent has-engaged in unfair labor practices in violation of Section 8(a)(5) and (1) of the Act, my recommended Order will require that it cease and desist therefrom and take certain affirmative action necessary to effectuate the policies of the Act. As Respondent has been found to have unlawfully refused to furnish relevant information to the Union, it will be required to furnish the requested information. Addition- ally, it will be required to rescind the job-posting proce- dure unilaterally adopted on September 14, and to dis- tribute, copies of the expired agreements to all employees hired since April 26, 1983 (6 months prior to the filing of the initial unfair labor practice charge herein), and it shall be required to make whole all those recovery room nurses who were required to take budget hours against their will since implementation of the budget hour pro- gram in the recovery room, with backpay to be comput- 81 ed in the manner set forth in F. W. Woolworth Co., 90 NLRB 289 (1950), and with interest to be computed in the manner set forth in Florida Steel Corp., 231 NLRB 651 (1977).16 On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed" ORDER The Respondent, Nazareth Literary & Benevolent In- stitute, Inc., d/b/a Saints Mary and Elizabeth Hospital, Louisville, Kentucky, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to furnish the Union with information rel- evant and necessary to the performance of its duties as collective-bargaining representative of Respondent's em- ployees; and unilaterally changing terms and conditions of employment including job-posting procedures, the dis- tribution of copies of the expired contract to new em- ployees, and the hours of employment of recovery room nurses, without notice to and bargaining with the Union. (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 effectuate the policies of the Act. (a) Furnish the Union with a current list of the unit employees together with their addresses. (b) Rescind the job-posting procedures that were adopted on September 14, 1983, to the extent that they apply to employees in the bargaining unit. (c) Give a copy of the expired contract to each em- ployee in the bargaining unit hired since April 26, 1983. (d) Make whole all the recovery room nurses' who were required to work short hours against their will. (e) 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. (f) Post at its hospital in Louisville, Kentucky, copies of the attached notice marked "Appendix." 18 Copies of the notice, on,' forms provided by the'Regional Director for Region 9, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. 16 See generally Isis Plumbing Co., 138 NLRB 716 (1962). 17 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. 18 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 " 82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Reasonable steps shall be taken by the Respondent to ,(g) Notify the Regional Director in writing within 20 ensure that the notices are not altered, defaced, or' cov- days-from the date of this Order what steps the Respo- ered by any other material. dent has taken to comply.