Mercywood Health Building

1114 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Catherine McAuley Health Center, a Division of Sisters of Mercy Health Corporation, d/b/a Mercywood Health Building and Local 79, Service Employees International Union, AFL- CIO. Case 7-CA-26386 29 January 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On 23 June 1987 Administrative Law Judge Norman Zankel 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 to the extent consistent with this deci- sion and to adopt the recommended Order. The Respondent is a nonprofit corporation that provides inpatient and outpatient medical and pro- fessional care services at several facilities. At its Mercywood Hospital facility, it provides mental health care. In November 1984, Local 79, Service Employees International Union, AFL-CIO (the Union), on re- ceiving a majority of votes in a representation elec- tion conducted pursuant to a consent election agreement, was certified as the collective-bargain- ing representative for the Respondent's employees in the following unit at Mercywood Hospital: All full-time and regular part-time environ- mental aids, linen aids, discharge cleaning aids, environmental specialists, lead aids, wall wash- ers, food service workers, dishwashers, cooks I, cooks II, head cooks, psychiatric aids, main- tenance employees, groundskeepers, drivers, maintenance utility workers, lead grounds- keeper, mechanic boiler relief employees, painters, coordinator preventive maintenance employees, construction coordinators, recre- ational therapy aids, occupational therapy aids, and unit information clerks, employed by Mercywood Hospital, but excluding all office clerical employees, casual employees, guards and supervisors as defined in the Act, and all other employees. Collective bargaining commenced and the parties reached an agreement effective 7 November 1985 to 7 November 1986. The parties further signed a "Letter of Agreement," which provided that the collective-bargaining agreement "shall be applica- ble at a new location in the event Mercywood Hospital is moved to another location to the extent required by law." At the time the bargaining unit was certified, the Respondent had plans to move to a new facility, and indeed, construction on that fa- cility had already begun. On 25 October 1986 Respondent moved all its patients and employees "en masse" from the old Mercywood facility, which was located on Jackson Road in Ann Arbor, Michigan, to its new Mercywood facility, which is located on its Huron Drive campus in Ann Arbor.' The new facility is on a campus containing various medical facilities operated by the Respondent, including the Re- spondent's St. Joseph's Hospital. The judge found that the move was from a sepa- rate free-standing building that housed the Re- spondent's mental health services, employees, and patients to a separate free-standing building on the Respondent's Huron Drive campus, which houses Respondent's mental health services, employees, and patients and, in addition, a partial hospitaliza- tion program that had previously been operated at a different location. That program, however, is housed in a segregated section of the new Mercywood facility and no evidence was presented indicating that any of the unit employees work in the partial hospitalization program. The judge further found that the vast majority of the service and maintenance employees who worked at the old Mercywood facility experienced little change in their daily work as a result of the move. They continued to perform the same work, under the same supervision, with the same working hours and rate of pay. The only unit employees whose working conditions changed were the cooks, who were transferred to the St. Joseph's fa- cility on the Huron Drive campus as a result of the Respondent's decision to consolidate its food serv- ice operations, and the groundskeeper and the maintenance employees, who were transferred to the Huron Drive campus' centralized engineering department. Although the number of service and maintenance employees working at the new Mercywood facility was not definitively estab- lished, the judge concluded that somewhere be- tween 48 and 98 service and maintenance employ- ees work at the new facility.2 There was no evi- ' It is undisputed that some of the unit cooks were moved to the Huron Drive campus just prior to the 25 October move 2 The judge apparently established this range based on undisputed tes- timony that there were about 48 psychiatric aides in the unit who moved to the new facility and the fact that the size of the original unit may have been as high as 98 No evidence was offered establishing the number of employees in any of the other unit classifications or the total number of unit employees working at the new Mercywood facility 287 NLRB No. 106 MERCYWOOD HEALTH BUILDING 1115 dence presented indicating that any service or maintenance employees who worked at the Huron Drive campus prior to the 25 October move later worked at the new Mercywood facility or that any unit employees, other than those in the above- stated classifications, worked in any of the other fa- cilities on the Huron Drive campus.3 The judge additionally found that the Respond- ent consolidated the management structure of Mercywood with that of the St Joseph's Hospital facility when it established a single governance board in July 1979 As evidence of such consolida- tion, the Respondent offered testimony pointing out the Respondent's centralized management re- sponsibilities and functions, centralized labor rela- tions policies, hiring procedures, and employee re- lations activities ,, and its integrated management structure. Based on the foregoing evidence, the judge found that the 25 October move to the new Mercywood facility was simply a relocation of the Respondent's mental health operations. Therefore, he concluded, the certified unit remained an appro- priate collective-bargaining unit and the Respond- ent continued to have an obligation to bargain with the Union under the Act. The Respondent has excepted to the judge's de- cision, arguing that under the principles of St. Francis Hospital, 271 NLRB 948 (1984), remanded sub nom. Electrical Workers Local 474, 814 F.2d 697 (D C. Cir 1987), and the legislative history of the 1974 amendments to the Act expressing con- cern over the proliferation of bargaining units in the health care industry, the instant unit-the serv- ice and maintenance employees working in one of the Respondent's facilities-cannot be an appropri- ate unit for collective bargaining . The Respondent further argues that because of its holistic approach toward medicine, which was made possible by the relocation of the Mercywood facility, the Mercywood employees' interests are merged with the interests of the Respondent's other employees We find no merit in the Respondent's exceptions.4 ' The judge found that the Respondent 's total staff complement at the Huron Drive campus now consists of approximately 2600 employees, of whom about 400 are service and maintenance employees 4 As the following analysis indicates, unlike the judge , we do not rely on our recent decision in Central Soya Co, 281 NLRB 1308 ( 1986) Cen- tral Soya concerned an employer 's purchase of a new feed mill and its subsequent transfer to that facility of union-represented employees from another feed mill that it had owned before the purchase The Board found , under the circumstances there, that the relocation 'of the union- represented work force and its consolidation with the work force at the new facility warranted a finding that the new employees constituted an accretion to the existing union-represented unit in the present case, by contrast , we find no consolidation of the union-represented employees with those in another facility With the exception of a few employees dis- cussed at fn 5 below , this was simply a relocation of the work force Furthermore, the present case, unlike Central Soya , involves a health care Initially, we find that the record evidence fails to establish that the Respondent operates one, inte- grated facility. The Respondent asserts that as a result of the 25 October move, its facilities have been consolidated; however, it has not shown any change in operations as a result of the move which would support such a conclusion Although Re- spondent has offered evidence showing that it has an integrated management structure and centralized labor policies, this structure and these policies were not a result of the move. Rather, the evidence indi- cates that the Respondent has had an integrated management structure and centralized labor poli- cies for several years. Furthermore, although Re- spondent asserts that the facilities are integrated as a result of its new holistic approach toward medi- cine, the record evidence fails to establish how this holistic approach has in any way affected the working conditions of the unit employees Finally, although we recognize that the St. Joseph's and the Mercywood facilities are now located on the same campus, the evidence fails to establish that any of the unit employees (excepting the cooks, grounds- keeper, and maintenance employees discussed at fn. 5 below) ever assist at the other facilities. Nor- is there any evidence that employees from other fa- cilities help out at Mercywood. Thus there is no interchange between the Mercywood employees and the employees at other facilities Therefore we find that the Respondent does not operate one, in- tegrated facility, but rather continues to operate multiple facilities as it did prior to the 25 October move. Having so found, we note that St. Francis is not applicable to the instant case. In St. Francis, the Board was faced with making an initial determina- tion concerning whether a separate maintenance unit at a single health care facility was an appropri- ate unit for purposes of conducting a representation election. The Board, in accommodating the con- gressional admonition against unit proliferation, ap- plied a "disparity-of-interests" test and concluded that the evidence failed to demonstrate a disparity of interests between the maintenance employees and other nonprofessionals that would justify sepa- rate representation. Here, however, we are not faced with that question because we do not have a single health care facility. Rather, the question here, as it was in Manor Healthcare Corp., 285 NLRB 224 (1987), is whether a single facility bar- gaining unit is appropriate in the health care indus- try when the employer operates more than one fa- cility. industry employer We are therefore considering this in light of health care industry decisions and decisions that do not present accretion issues 1116 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD In Manor Healthcare, the Board reaffirmed its position that there exists a rebuttable presumption that single-facility units are appropriate in the health care industry. That presumption can be re- butted by a showing that the approval of a single- facility unit will threaten the kinds of disruptions to the continuity of patient care that Congress sought to prevent when it expressed concern about prolif- eration of units in the health care industry. Conse- quently, if an employer can show that there is a reasonable basis for concluding that a single-facility unit would lead to an increased risk of work dis- ruption or other relevant adverse consequences, the unit will be deemed inappropriate. The Respondent has not made such a showing in the instant case. Although the St. Joseph's and Mercywood facili- ties are located on the same campus, as noted above there is no evidence of interchange between the unit employees and the Respondent's other em- ployees. This lack of interchange between the unit employees and the Respondent's other employees,5 is of far greater significance than the fact that both main facilities are located on the same campus. Furthermore, although the Respondent has an inte- grated system of management and centralized labor policies, there is no evidence of a real danger that the separate bargaining unit here will cause more work stoppages than would be the case with a larger unit or that it would in any other way impede continuity of patient care. As we stated in Manor Health Care (id. at 228): Although it may be true that the Employer could administer labor relations in a multifaci- lity unit more efficiently than in individual units such as the one sought, that factor is not entitled to great weight The legislative history does not suggest that Congress was intent on maximizing administrative efficiency; rather it focused on avoiding unit determinations that are likely to jeopardize the continuity of health care. Were a multifacility employer able to show, in a particular case, that such loss of administrative efficiency would necessarily have that effect, then of course the presump- tion of single-facility appropriateness would be rebutted. The Employer here has shown nei- ther that such an effect is likely in general nor that it is present in this case. 5 It is possible that those employees who have been integrated into the Respondent's St Joseph's work force or the Respondent's centralized en- gineering department, i e , the cooks, groundskeeper, and maintenance employees, may no longer be properly within the unit We make no ruling on that matter at this time Both parties are free, however, to file a unit clarification petition to determine whether certain classifications of employees should be excluded from the existing unit In conclusion, we find that the Respondent has not offered any evidence of change in circum- stances resulting from the relocation that would render the instant unit inappropriate under relevant health care industry precedents Therefore, we find that the instant unit remains appropriate and, for the reasons set forth by the judge in his decision, that the Respondent violated Section 8(a)(5) and (1) of the Act when it refused to furnish relevant information to the Union, refused to meet with the Union to discuss the effects of its decision to relo- cate, refused to meet with the Union and bargain with it for a new collective-bargaining agreement, unilaterally withdrew recognition from the Union, and unilaterally paid bargaining unit employees a $400 bonus and changed their health insurance coverage. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Catherine McAuley Health Center, a division of Sisters of Mercy Health Corporation, d/b/a Mercywood Health Building, Ann Arbor, Michigan, its officers, agents, successors, and assigns, shall take the action set forth in the Order. Charles F Morris, Esq., for the General Counsel. A. David Mikesell and Norman Hawkins, Esqs. (Honig- man, Miller, Swartz & Cohn), of Detroit, Michigan, for the Respondent. Michael J. Haggerty, Esq (Haggerty & Franklin), of De- troit, Michigan, for the Union. DECISION NORMAN ZANKEL, Administrative Law Judge. This case was tried before me on 11 and 12 March 1987 at Detroit, Michigan The proceeding evolved from an unfair labor practice charge filed on 12 November 19861 by Local 79, Service Employees International Union, AFL-CIO (the Union), against Catherine McAuley Health Center, a Division of Sisters of Mercy Health Corporation, d/b/a Mercywood Health Building2 (the Respondent) A complaint was issued on 18 December. In substance, the complaint alleges that Respondent discriminated against its employees and refused to bar- gain collectively with the Union as certified bargaining agent for an appropriate unit of employees in violation of Sections 8(a)(1), (3), and (5) and 8(d) of the National Labor Relations Act (the Act) Specifically, the complaint alleges Respondent refused to furnish relevant information to the Union since 9 July; refused to meet with the Union since 19 August to dis- cuss the effects of a decision to relocate its facility; re- ' All dates hereafter are in 1986 unless otherwise stated 2 Respondent's name appears as amended at the hearing MERCYWOOD HEALTH BUILDING fused to meet with the Union and bargain with it for terms of a new collective-bargaining agreement since 4 September, unilaterally withdrew recognition from the Union about 30 October and, since then, failed to apply the terms of their collective-bargaining agreement, unilat- erally paid bargaining unit employees a $400 bonus about 15 November and also changed their health insurance coverage Respondent's timely answer admits several facts but denies it committed any unfair labor practices On the entire record, including my observation of the demeanor of witnesses, and after consideration of the briefs filed by the General Counsel and the Respondent, I make the following FINDINGS AND CONCLUSIONS I JURISDICTION Respondent, a nonprofit Michigan corporation, is, and at all material times has been, engaged in operation of medical facilities that provide inpatient and outpatient medical and professional care services Respondent has maintained its principal office and place of business at 5031 East Huron River Drive, Ann Arbor, Michigan (the Huron Drive site) During the calendar year immediately preceding com- plaint issuance, a representative period, Respondent de- rived gross revenues that exceeded $1 million and, in this same time period purchased goods and services exceed- ing $50,000 in value from sources located outside Michi- gan and caused goods and services to be shipped directly into Michigan. Respondent admits, the record reflects, and I find that it is an employer that has been, and is, engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act The parties agree, the record reflects, and I find that the Union has been a labor organization within the mean- ing of Section 2(5) of the Act at all material times II THE ISSUES A Are the standards for bargaining unit determina- tions set forth in St Francis Hospital (271 NLRB 948 (1984), remanded sub nom Electrical Workers Local 474, 814 F.2d 697 (D C Cir 1987)),3 applicable to the instant case? B Did the physical move of Mercywood Hospital constitute a merger and integration of its bargaining unit employees with others, or was the move merely a reloca- tion of the bargaining unit and consolidation of oper- ations? C Did Respondent unlawfully refuse to bargain col- lectively in any of the ways alleged in the instant com- plaint? I shall find St. Francis II does not govern disposition of the issues before me; that Mercywood's move merely was a relocation and consolidation, and that Respondent has unlawfully refused to bargain collectively 9 Herein called St Francis II 1117 III. THE ALLEGED UNFAIR LABOR PRAC I'ICES A. The Facts4 1 Background On 2 November 1984 the Union was certified, in Case 7-RC-17326, as the exclusive collective-bargaining rep- resentative of Respondent's employees in the following bargaining unit- All full-time and regular part-time environmental aids, linen aids, discharge cleaning aids, environ- mental specialists, lead aids, wall washers, food service workers, dishwashers, cooks I, cooks II, head cooks, psychiatric aids, maintenance employ- ees, groundskeepers, drivers, maintenance utility workers, lead groundskeeper, mechanic boiler relief employees, painters, coordinator preventive mainte- nance employees, construction coordinators, recre- ational therapy aids, occupational therapy aids, and unit information clerks, employed by Mercywood Hospital, but excluding all office clerical employees, casual employees, guards and supervisors as defined in the Act, and all other employees The certification resulted from a representation elec- tion conducted pursuant to a consent election agreement Collective-bargaining negotiations ensued An agree- ment was successfully negotiated. The collective-bargain- ing agreement was effective 7 November 1985 to 7 No- vember 1986 The parties added a letter of agreement. That letter provided "This Agreement (the collective-bargaining agreement) shall be applicable at a new location in the event Mercywood Hospital is moved to another location to the extent required by law." (Hereafter, the quoted language will be called the relocation clause) The certified unit description indicates the employees involved were those of Mercywood Hospital (Mercy- wood) The Mercywood facility was located at 4038 Jackson Road, Ann Arbor, Michigan (the Jackson Road site) on the certification date and for many years before that time. Mercywood was a division of Sisters of Mercy Health Corporation, owned by the Sisters of Mercy Province of Detroit 5 In 1980, Respondent decided to move its mental health facility (Mercywood) to the Huron Drive location Re- spondent began to construct a new building on the campus in 1983. Construction was in progress when the bargaining unit was certified There were approximately 90 employees in the certified unit. 4 Not every bit of evidence, legal theory, and argument based on them is reported or discussed in this decision However, each has been consid- ered Omitted matter is deemed irrelevant, superfluous, or of no proba- tive value 5 The Sisters of Mercy are an Order of Roman Catholic nuns founded by Catherine McAuley The corporation maintained a campus of assorted medical facilities on Huron Drive, also in Ann Arbor The Huron Drive site was approximately 18 miles away from the Jackson Road location Mercywood provided mental health care Respondent provided general medical, surgical, and obstetrical and gynecological services at the Huron Road campus at a facility known as St Joseph's Hospital 1118 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2. Scenario of the present dispute In June 1986 Michele Fecteau assumed the position of the Union's business agent to represent the certified unit employees Some of the unit employees told Fecteau that Mercywood might move Fecteau sent Respondent writ- ten requests for bargaining "over the effects" of the scheduled Mercywood relocation On 6 August Fecteau wrote Respondent to confirm there would be a meeting on 8 August The 6 August letter reflects the purpose of the scheduled meeting, in part, was for the Union to "gather the pertinent informa- tion in order to better negotiate the effects of" the relo- cation. The parties did not meet on 8 August Instead the meeting was rescheduled for 19 August so that Respond- ent's attorney, A. David Mikesell, could attend On 19 August Fecteau and Mikesell met Also present were Union Attorney Michael Haggerty and Dorothy Brown, Respondent's director of employee relations. Haggerty requested specific information regarding Mercywood's move and its effect on the employees Mi- kesell and Browns said Mercywood would "move en masse" and that Respondent will respect the collective- bargaining agreement, and that Respondent "always had the intention to respect the contract." Haggerty asked that Respondent sign a Letter of Un- derstanding Recognition of Agreement at New Facility (G C Exh 6) Mikesell declined to sign the document in the form presented He indicated it needed revision. Hag- gerty and Fecteau said they needed something reassuring to take back to the membership Mikesell said he under- stood and would get back to them Mikesell and Brown said that the only unit employees that would be affected by the move would be the dietary employees (The cooks were already, or dust about to be, moved from Mercywood to a consolidated kitchen at the Huron Drive campus). The 19 August meeting ended when Mikesell said he would contact the Union with a proposal to cover the move of employees and some unrelated outstanding grievances. Mikesell wrote Haggerty, on 15 September, that "matter of Mercywood's relocation . . is still under management consideration; I hope to have a response for you by the end of this week " (G C Exh 7 ) On 6 October the Union's president mailed Brown a copy of the Union's demands for a new collective-bar- gaining agreement (G.C Exh 8) A bargaining session was scheduled for 10 October. That meeting did not occur Instead, Mikesell met privately with Fecteau and the Union's second vice president Mikesell said that it was uncertain whether Mercywood's move was a reloca- tion or a merger. He said that negotiations could be fruit- less and a waste of time. Nonetheless, Mikesell agreed that the parties could meet for bargaining if the Union "insisted " Fecteau did ask for bargaining Fecteau asked Mikesell to explain the delay in telling the Union there was a problem about the move. Mikesell responded he "really didn't know about it before " Mikesell repeated that the situation was uncertain with respect to merger 6 From Fecteau's undisputed testimony or relocation but that Respondent would schedule bar- gaining sessions after it received a written proposal for dates on which bargaining sessions would be held. On 10 October Fecteau wrote Mikesell Fecteau's letter contained proposed dates for bargaining sessions. A variety of dates starting 15 October through 6 Novem- ber were presented Later, Fecteau and Brown arranged to meet for negotiations on 5 and 6 November Mikesell telephoned Fecteau during the third week in October He requested her to meet with him on 23 October Fec- teau told Mikesell she was scheduled to be out of town Mikesell and Fecteau did not meet on 23 October be- cause Fecteau did not return to her office until Novem- ber 3 Meanwhile, Respondent moved Mercywood from Jackson Road to Huron Drive, according to schedule, on 25 October. . On 30 October Respondent distributed a letter to all Mercywood employees at the Huron Drive site The letter (G.C Exh. 10(a)) advised those employees that Mercywood's move to the new location completed Re- spondent's "integration" of its physical and mental health programs and support departments onto the Huron Drive campus. The letter further advised the employees- that Respondent "decided that it is no longer appropriate to continue to recognize a separate bargaining unit for Mercywood employees. We have, therefore, notified the (Union) that we no longer recognize them as represent- ing the 89 employees in the former Mercywood bargain- ing unit " Respondent's 30 October letter to Mercywood em- ployees also informed them they "now have the same status" as its other Huron Drive employees. Specifically, the letter reflects that the Mercywood employees would be eligible to receive a performance bonus and a health plan different from that which had been negotiated into the expiring collective-bargaining agreement 7 Also, on 30 October, Mikesell wrote Fecteau He ad- vised Fecteau that Respondent "has determined that the employees formerly working at Mercywood Hospital do not now constitute a unit appropriate for bargaining as they have been integrated into and are now part of the larger employee group working on the (Huron Drive) Campus. Accordingly, Local 79 will no longer be recog- nized as the bargaining agent for such employees " Mike- sell's 30 October letter to Fecteau was hand-delivered to her office, together with a copy of Respondent's 30 Oc- tober letter to the Mercywood employees The parties did not meet to engage in collective bar- gaining on 5 or 6 November The union representatives appeared at the designated place and time, but none of Respondent's representatives attended Thus, no bargain- ing sessions were held before the 7 November expiration date of the collective-bargaining agreement Respondent admitted that it did offer a health plan different from the contractual plan and in fact paid a bonus of $400 to each of the Mercywood unit employees Also, Respondent admitted that it withdrew recognition from the Union on 30 October and since then has declined to recognize it as the exclusive collective-bargaining representative of the Mercywood employees MERCYWOOD HEALTH BUILDING 1119 On 12 November Fecteau wrote Mikesell requesting information concerning Mercywood 's move and the pre- cise basis of Respondent 's claim that the move constitut- ed a merger rather than a relocation (G.C. Exh. 1(a), and Exh. A) Also on 12 November, the Union filed the in- stant charge. On 20 November Mikesell sent Fecteau a written re- sponse to her 12 November request for information. Mi- kesell wrote that Respondent "must decline to provide the information requested . We do so because Local 79 no longer has bargaining representative status and there- fore you have no right to such data at this time." B. Analysis 1. Applicability of St. Francis II Resolution of the issues requires a threshold determina- tion regarding the appropriateness of the bargaining unit at the time of the admitted withdrawal of recognition on 30 October. The General Counsel contends that Mercywood's move to Huron Drive made no significant change in the type and nature of Respondent's operation and literally no change in the composition and work of the unit em- ployees. Thus, the General Counsel asserts that Respond- ent violated the Act as alleged, because "the bargaining unit employees transferred to the new facility constituted a majority of the employees, if not the only employees, working at the new facility who are performing the work of the old facility" (G.C. Br. 10-11) Respondent admits only that the above-described unit was the one that had been Board-certified. Respondent asserts the unit was inappropriate for collective-bargain- ing purposes when recognition was withdrawn. Respondent advances two principal bases for its posi- tion: that (a) the evidence does not satisfy the Board's so- called disparity-of-interest test for deciding appropriate- ness of bargaining units in health care institutions enunci- ated in St. Francis II8 and (b) the Mercywood bargaining unit effectively lost its identity because the move to Huron Drive comprised a merger and integration of the unit employees into, and with, the other employees at Huron Drive. I conclude Respondent's reliance on St. Francis II is misplaced. My conclusion is predicated on the conglom- erate of the following factors 9 8 The circuit court's decision on remand (814 F 2d 697 (D C Cir 1987)), in salient part, declared the Board erroneously concluded that the 1974 amendments to the Act, which extended its coverage to nonprofit health care facilities, mandated a requirement that to be an appropriate unit for collective-bargaining purpose, there needs to be demonstrated the existence of "sharper than usual differences between the wages, hours and working conditions, etc of the requested employees and those in the overall professional or non-professional unit" (271 NLRB at 953) Previous to St Francis II the Board used its traditional standard of finding bargaining units appropriate on showing of a community of inter- est among the employees in the petitioned-for unit This community-of- interest standard caused the Board to affirm a Regional Director's con- clusion that a separate bargaining unit of hospital maintenance employees was appropriate St Francis Hospital, 265 NLRB 1025 (1982) (St Francis I) s I do not view any one of the factors controlling My ultimate conclu- sion that St Francis II is inapposite is derived from the composite of these factors (See Baker Hospital, 279 NLRB 308 (1986), in which the (a) The context of the instant case significantly differs from that which existed in the St. Francis Hospital deci- sions. In St. Francis 1, the Board was called on to make an initial determination of the appropriateness of a sepa- rate maintenance unit at a health care facility for pur- poses of conducting a representation election . St. Francis II, though literally an unfair labor practice case that in- volved a refusal -to-bargain allegation , actually was an ex- tension of the issue presented by St. Francis I. This is so because the allegations in St. Francis II apparently ema- nated from the employer's challenge to the Board's St. Francis I finding the unit was appropriate.' 0 The instant case presents the unit issue in a different light because here the Board is not called on to decide whether or not the unit is appropriate ab initio That is the question contained in both St. Francis cases. Clearly, the bargaining unit alleged appropriate here was appropriate under the Board 's community-of-interest (St. Francis I) standards at the time the parties entered into the consent election agreement underlying the in- stant certification .' i 1 find that circumstance materially distinguishes the case at bar from St. Francis II and its progeny I conclude the instant bargaining unit bears the Board 's implicit imprimatur as to its appropriateness. Unless convincing evidence exists that shows Mercywood's move to Huron Drive made the certified unit indistinguishable from Respondent 's other employees at that location,' 2 I find the presumptive appropriate- ness13 of the unit when the parties agreed to it tends to make St. Francis II inapposite. (b) The parties' negotiated collective-bargaining agree- ment effectively recognized the appropriateness of the instant unit. The certification was issued in Case 7-RC- 17326. Respondent explicitly recognized the Union as the col- lective-bargaining representative of the employees in the unit alleged appropriate in the instant case in article II, section 1 of their collective-bargaining agreement (G.C. Exh 2). The parties' contract was signed more than a year after issuance of St. Francis II. The relocation clause was signed by Respondent on 20 November 1985 and by the Union on 10 February 1986. No evidence at all was adduced to show Respondent contested the unit's appropriateness at any time before 10 October, the date Mikesell met privately with union offi- cials and informed them that doubts existed as to wheth- er the unit was appropriate . Before that , the parties en- joyed an apparent uneventful and amiable collective-bar- gaining relationship. I find this bargaining history tends to diminish Re- spondent's ability to rely on St. Francis II in attacking Board held that bargaining history is a legitimate, but not controlling, consideration 10 Such a challenge has been the historical method by which employ- ers have tested the validity of a certification Because the Board is the final statutory arbiter of representational questions, access to judicial review of the certification is available only through the unfair labor prac- tice procedures 11 The election underlying the instant certification was conducted on 16 August 1984 and St Francis II issued 13 August 12 1 shall consider this issue separately below is This presumption is derived from St Francis I. There, in salient part, the Board identified service and maintenance employees as one of seven groups of employees commonly found in health care institutions 1120 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the appropriateness of the unit. This is not to say Re- spondent is precluded from making and proving its claim that circumstances so were altered by Mercywood's move to Huron Drive that the bargaining unit is no longer appropriate. That contention will be analyzed later in this decision. I now merely find the bargaining history between the instant parties materially distin- guishes the case at bar from the St. Francis Hospital cases. Respondent cites St. Francis II progeny, which I con- clude illustrate this point Baker Hospital, supra, and Kirksville College, 274 NLRB 794 (1985), were cases that involved an initial unit determination where no bargain- ing history was present St. Luke's Hospital, 274 NLRB 1431 (1985), like St. Francis II, reached the Board as an unfair labor practice case. Nonetheless, the St. Luke's case involved the employer's challenge to the validity of a unit determination. Respondent also cites Abbott-Northwestern Hospital, 274 NLRB 1063 (1985), in which, concededly, the alleged violation was virtually identical to the instant case. In both cases, the employer withdrew recognition from the union during the term of a collective-bargaining agree- ment and then unilaterally changed some terms and con- ditions of employment. In Abbott, the Board reversed the administrative law judge's finding that a service and maintenance unit , including psychiatric assistants, was appropriate. I find the factual situation in Abbott substan- tially different from the case at bar. In Abbott, the employer actually merged two separate divisions into one single facility; whereas Mercywood's separate facility at Jackson Road merely was moved to a separate facility at the Huron Drive campus. In Abbott, 63 unrepresented unit employees were merged into a staff of 9 represented employees and all 72 were under common supervision. In Mercywood, the represented unit employees were far less in number (approximately 98) than the number of other employees at Huron Drive (almost 2700) before Mercywood moved there. Also, I find no cogent evidence in the case before me that war- rants a conclusion the staffs were merged. Finally, in Abbott, the parties signed a collective-bargaining agree- ment that contemplated the merger of its divisions and agreed the merged employees would not be represented by the Union. In the instant case, the parties also con- templated a move. But they negotiated the relocation clause. Thus, Respondent and the Union in this case evinced an intention to maintain their collective-bargain- ing relationship in an historically traditional appropriate service and maintenance unit. The parties' accord ex- tended to a new location subject, of course, to the con- tinued ability to identify the certified unit as a separate entity from others, In sum, I conclude the foregoing shows that the col- lective-bargaining relationship present in the instant case either is absent, or substantially differs, from the cases in which the Board applied the St. Francis II standards. I find these differences militate in favor of the conclusion, which I have made, that St. Francis II principles do not govern the disposition of the case at bar. (c) The legislative history of the 1974 health care amend- ments to the Act14 does not compel the Board to reject the parties' agreement that the certified unit was appropriate when certified. Nor do the amendments require a declara- tion that the certified unit is now inappropriate. The Board itself, in my view , recognized these princi- ples in St. Francis M. There, the Board observed that the health care amendments , in effect , admonished it to avoid unit proliferation in the health care field . Specifically, the Board majority commented: Congress concluded that the object of minimizing work stoppages resulting from initial organizational activities , jurisdictional disputes, and sympathy strikes could best be achieved , and thus the likeli- hood of disruptions to health care reduced , by mini- mizing the number of units appropriate in the health care industry [271 NLRB at 950-951 Emphasis added]. Further, the Board stated: Virtually every Senator and Representative speak- ing in regard to the passage of the amendments ad- monished the Board to avoid a proliferation of bar- gaining units and directed the Board to make every reasonable attempt to accommodate broader units in the health care industry. [271 NLRB at 951, fn. omit- ted. Emphasis added.] I am bound by the Board's decisions unless and until they are overruled by the U.S. Supreme Court.15 The Court has not ruled on the propriety of the Board's tests for unit determinations in the health care field. St. Fran- cis II is the Board's most recent seminal authority on that issue. I can find nothing in the above quotations, or in any other part of the majority decision in St. Francis II that mandates a preemptory rejection of an agreed-to unit en- compassing a traditional grouping of employees for col- lective-bargaining purposes. Similarly, my examination of the pertinent legislative history does not reveal any ex- pression that Congress intended to prohibit the Board from giving effect to parties' agreements regarding ap- propriateness of bargaining units in health care facilities as long as the Board's "normal criteria" 16 support them. I perceive no clear authority that requires mechanistic use of St. Francis II standards for unit determinations to create an incursion to, or intrude on, a management- union agreement that a particular bargaining unit is ap- propriate, even in the health care field In so concluding, I am mindful of the congressional charge to the Board to diligently avoid disruptions in delivery of health care services. Also, I acknowledge the Board's view, in St. Francis II, that the disparity-of-interest test is the proper approach to achieving the congressional goal. 14 S Rep No 93-766 at 5 (1974), reprinted in "Legislative History of the Coverage of Nonprofit Hospitals Under the National Labor Relations Act, 1974", H Rep 93-1501, 2d Sess (1974) 15 Waco, Inc, 273 NLRB 746 fn 14 (1984), citing Iowa Beef Packers, 144 NLRB 615, 616 (1963) i8 8 See in 35, St Francis II, 271 NLRB at 953 MERCYWOOD HEALTH BUILDING 1121 I simply find the issue of whether the St. Francis test must be applied to situations where, as here, the parties have agreed to unit appropriateness was not addressed in St. Francis II In fact, the St Francis II majority implicit- ly acknowledges the new standard applies to unit deter- minations that the Board itself is called on to make. Thus, the Board majority stated "[w]e will reach our unit determinations on a case-by-case basis, focusing on the [disparity-of-interest standard]." 17 This Board statement, in concert with the foregoing discussion, leads me to conclude that the existence of the St. Francis II standard for the Board's unit determinations is not a license to automatically declare, as invalid, agreed-on units, other- wise presumptively or demonstrably appropriate. In conclusion, I find Respondent's arguments regard- ing the application of St. Francis II appealing, even in- triguing; but only superficially. Careful scrutiny shows that those arguments do not ask the Board to declare the certified unit never was appropriate. The thrust of Re- spondent's defense, in my view, is based on the conten- tion that the agreed-on unit became inappropriate when Mercywood moved to Huron Drive because the unit em- ployees were merged and integrated 'with the other em- ployees and operations at Huron Drive. This, in reality, is the sole critical issue to be resolved. No recourse to St. Francis II is at all necessary. On all the foregoing, I find that St. Francis II princi- ples do not govern disposition of the instant proceeding. 2. Mercywood's move and the bargaining unit" As previously reported , Respondent moved Mercy- wood on 25 October . The move was from a separate free-standing building at Jackson Road that housed Re- spondent's mental health services , employees, and pa- tients to a separate free-standing building that housed Re- spondent's mental health services , employees, and pa- tients at Huron Drive . The Jackson Road facility could house approximately 135 patients . And the Huron Drive building could house approximately 106 patients 19 \ All Mercywood patients at Jackson Road, together with all of Respondent's bargaining unit employees and their supervisors , were moved en masse to the Huron Drive campus. There is no evidence that any of Re- spondent's employees were working at the Huron Drive site immediately before the Jackson Road employee com- plement and patients arrived.20 Respondent moved Mercywood as part of a manage- ment decision to provide the Ann Arbor community with integrated (medical, surgical , and mental and emo- tional) health care services 21 Currently, Respondent's staff complement at the Huron Drive campus includes approximately 400-500 su- pervisory and management personnel; 1500 professional licensed employees including registered nurses, medical technologists, physical therapists, etc, 300 clerical em- ployees; and 400 service and maintenance employees, in- cluding environmental workers, aides and specialists, psychiatric aids, unit assistants , physical medicine aides, surgical aides, food service workers, and all the emergen- cy and maintenance classifications No more than ap- proximately 98 of the 400 service and maintenance em- ployees at Huron Road work at the Mercywood build- ing.22 The vast majority of Mercywood service and mainte- nance employees at Huron Drive are those who were moved there from the Jackson Road site 23 Their daily work continues to be directed by the same supervisors who moved from Jackson Road There has been no change in the nature of work performed by those em- ployees Their working hours, and decisions as to rate of pay (and its manner of payment) remain as they were before the move Respondent adduced considerable credible and uncon- tradicted evidence of the structure and functional oper- ations at the Huron Drive campus after Mercywood's move to that location That evidence is designed to show that the Mercywood bargaining unit employees have been so merged and integrated into the larger preexisting complement at Huron Drive that a bargaining unit con- sisting only of Mercywood employees is inappropriate for collective-bargaining purposes when assessed by any standard I find Respondent's evidence does not support its position Concededly, certain changes occurred after Mercy- wood's relocation in conditions that had not existed before the move A partial hospitalization program has been operated at Mercywood's building at Huron Drive since some time after Mercywood's move. This partial hospitalization segment, however, is not new. It existed before Mercywood's move and operated at a building near, but not on, the Huron Drive campus. In any event, the partial hospitalization program presently is housed in a segregated section of Mercywood's Huron Drive facili- ty The record reflects that Respondent totally moved the partial hospitalization program onto the Huron Drive campus after Mercywood's move There is no evidence that Mercywood's former Jackson Road employees work at, in, or for, the partial hospitalization program Also, Respondent consolidated its food service oper- ations at the Huron Drive campus coincidental with 17 St Francis iI, fn 39, 271 NLRB 953 Emphasis added 18 For clarity and brevity, I have incorporated into this analysis sec- tion relevant undisputed facts not heretofore reported 19 Psychiatric aide Strobbe's uncontradicted credible testimony is that a wing was closed immediately before the move, reducing patient census at Jackson Road to approximately 106 20 Also, the record does not show that Respondent relocated any of its employees to Mercywood's Huron Drive facility from any location other than Jackson Road 2 i Respondent also consolidated the management structure of Mercywood with that of the St Joseph Hospital facility already located at Huron Drive and which provided the medical, surgical, and obstetrical services, by establishing a single governance board in July 1979 22 This number was not reflected with certainty it could be as low as 48 if the unit employees who were transferred to the central engineering department (see fn 23, infra) are discounted 23 After the move, certain maintenance employees who were previous- ly exclusively employed at Jackson Road were transferred to Respond- ent's single engineering department housed in the St Joseph Hospital building at Huron Drive They were assigned their work location from that place When these individuals work at the Mercywood building, it appears they are supervised by management officials at Mercywood There is no evidence as to the extent to which, if at all, maintenance em- ployees who formerly did not work at Mercywood's Jackson Road facili- ty perform any services at its Huron Road building 1122 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Mercywood's move As earlier noted, Mercywood's Jackson Road food service employees had been trans- ferred to the Huron Drive campus. This change resulted in the Jackson Road cooks physically stationed at the Centralized Food Preparation Area in the St Joseph Hospital building instead of at the Mercywood facility Also, as noted above, Respondent's maintenance em- ployees have been transferred to the centralized engi- neering department at the Huron Drive campus. The Jackson Road Mercywood groundskeepers also have re- ported to the engineering department for assignment An unspecified number of employees in certain other mainte- nance classifications (such as painters and boiler opera- tors) have become part of the combined engineering de- partment. Finally, Respondent's evidence shows that Mercy- wood's move was designed to accomplish, and has achieved, reductions in operating costs in some areas, in- creased efficiency in some operations, and centralized management over the activities at the Huron Drive site. I have considered all Respondent's evidence relating to the areas of common management responsibilities and functions, formulation, and the implementation of cen- tralized labor relations policies for all Huron Drive em- ployees, Respondent's hiring procedures, employee rela- tions activities, and other areas of managing the working conditions of all employees who work at the Huron Drive site. I find the structural changes that attended Mercywood's move were in areas of the instant employ- er's administration of its health care operations at the Huron Drive campus They were made at managerial levels far removed from the concerns of the employees involved. The principal change that directly affected the unit employees was the physical change of their work loca- tion from the Jackson Road to the Huron drive facility. I recognize that some changes occurred that, in another context, might support Respondent's contentions Specifi- cally, I refer to the transfer of some of the maintenance employees to the central engineering department None- theless, the instant record shows this was little more than an administrative matter. There is no evidence that the Mercywood employees affected by this transfer had any other of their terms and conditions of employment changed, particularly in their day-to-day activities (except, of course, as to the alleged unlawful unilateral alterations of working conditions) Accordingly, I find Respondent's evidence of integration and merger unper- suasive 24 1 conclude the preponderance of evidence shows Mercywood's 25 October move was simply a relocation of Respondent's mental health operations. Whatever changes in unit employees' working conditions resulted unquestionably occurred because of Respondent's with- drawal of recognition from the Union I shall find that withdrawal unlawful in the circumstances of the instant case 24 Respondent relies heavily on the Abbott Hospital case, supra I have already distinguished that case for other purposes (See sec III,B,(i), par (a), above ) It is unconscionable that Respondent should profit from the fruits of its own misconduct In Central Soya Co., 281 NLRB 1308, 1310 (1986), cited by the General Counsel, a case that I find delineates and approves of the distinctions made above'25 a majority of Board members remarked, in part, that "the Respondent should not be al- lowed to capitalize on the relocation . to justify ter- minating its . bargaining relationship with the majori- ty representative." (Fn. omitted.) In my view, the instant case presents a factual predicate analogous to that in Central Soya and that case supports the General Coun- sel's contention here. On all the foregoing, I find Mercywood's move to the Huron Drive site did not constitute such a merger or in- tegration as to make the certified unit inappropriate. Consequently, I also find that the certified unit, at all times material to the instant proceedings, has been, and is now, an appropriate unit for collective-bargaining pur- poses within the meaning of the Act. 3 Refusal to bargain-specific allegations No extensive discussion or analysis is necessary at this juncture to dispose of the separate refusal-to-bargain alle- gations. The allegations and my disposition are outlined below. a. Withdrawal of recognition As reported earlier, Respondent admits it withdrew recognition from the Union on 30 October Mercy- wood's relocation had taken place, but the parties' col- lective-bargaining agreement had not yet expired. I have found the relocation did not substantially or materially alter Mercywood's operations; and that the unit composi- tion and functions of the bargaining unit employees re- mained as they were at the Jackson Road location. In Westwood Import Co, 251 NLRB 1213 (1980), the Board observed: "The Board has held on numerous oc- casions that an existing and effective collective-bargain- ing agreement remains in effect following a relocation, provided operations and equipment remain the same at the new location, and a substantial percentage of the em- ployees at the old plant transfer to the new location" (footnote omitted, 251 NLRB at 1214). My factual find- ings support application of this principle to the instant case.26 This is especially true because the instant with- drawal of recognition actually occurred during the term of the 1985-1986 collective-bargaining agreement. I find Central Soya, supra, strong authority for a find- ing that Respondent unlawfully withdrew recognition from the Union My factual findings are remarkably con- sistent with those in the Soya case. Specifically, I have 25 The Soya Board majority characterized the employer's activities as both a relocation and consolidation I find the evidence herein similarly warrants that dual characterization of Respondent's activities 26 Specifically, and on the record as a whole, I find Mercywood's Huron Drive facility is composed substantially of its Jackson Road unit employees Also, the record reflects Mercywood acquired some new equipment at the Huron Drive location, but the equipment is similar or identical to that used at Jackson Road Thus, I also find that Mercywood's Huron Drive facility operates with substantially identical equipment as formerly used MERCYWOOD HEALTH BUILDING found Mercywood's work force at Huron Drive com- posed substantially of the relocated employees, there was no substantial change in Mercywood's operations after the move to Huron Drive, the equipment used at the new location is substantially the same as the old, and Mercywood's move fairly is characterized as both a relo- cation and consolidation. These factors, alone, are con- vincing indicators of a violation under the Soya case. Yet, I find the instant scenario even more compelling because of the existence of the relocation clause. There is no indication the employer in Soya had similarly commit- ted itself to continued recognition Herein, Respondent opted, apparently voluntarily, to be bound to its collec- tive-bargaining relationship after a relocation "to the extent required by law " This quoted phrase, from the relocation clause, obviously refers to the determination of whether Mercywood's move was to constitute a relo- cation or merger/integration. Thus, the instant case con- tains both the existence of an extant collective-bargaining agreement and a separate reaffirmation of a commitment to continue recognition of the Union The totality of circumstances, described above, con- vinces me that Respondent's 30 October withdrawal of recogntion was violative of Sections 8(a)(5) and (1) and 8(d) of the Act. I so find. b Unilateral changes As reported earlier, Respondent admits it offered the unit employees new insurance coverage and made bonus payments of $400 to each of them about 15 November Respondent also admits these changes were made unilat- erally without first notifying, or bargaining with, the Union. These changes were made after the 1985-1986 collective-bargaining agreement, by its terms, had ex- pired. Nonetheless, I conclude Respondent violated the Act by taking these unilateral actions No party contends employees' insurance program and bonus payments are not mandatory bargaining subjects. I find they are My earlier findings reflect the Union was entitled to exclusive recognition as collective-bargaining representative of the employees in the certified unit at least through 7 November, the expiration date of the par- ties' collective-bargaining agreement. Section 8(d) of the Act obligates an employer to main- tain existing wages , hours, and terms and conditions of employment for bargaining unit employees, on the expi- ration of a collective -bargaining agreement , unless the parties have reached a bona fide impasse in negotiations for a new agreement or the employer has a justifiable good-faith doubt of the majority status of the union's representing the bargaining unit employees NLRB v. Katz, 369 U S. 736, 747 (1962). An employer commits an unlawful refusal to bargain when it makes unilateral changes in bargaining unit employees' terms and condi- tions, subject to mandatory collective bargaining, after expiration of a collective-bargaining agreement unless an impasse exists or its doubts of majority status is estab- lished . Clear Pine Mouldings, 238 NLRB 69, 79 (1978). The evidence in the instant case shows no impasse could have existed when Respondent paid the $400 bonus and offered new insurance for Mercywood's em- ployees All scheduled negotiating sessions had been can- 1123 celed The parties never once met to discuss the Union's contract demands contained in the Union's 6 October letter to Respondent Also, Respondent did not contend nor seek to prove, it had a good-faith doubt of the Union's majority status within the Mercywood unit, except as such contention is implicit within Respondent's claim that the Mercywood Jackson Road unit of ap- proximately 100 employees was merged with the 300 service and maintenance personnel already at Huron Drive before Mercywood's relocation The foregoing leads to the inescapable conclusion that Respondent unlawfully refused to bargain in violation of Sections 8(a)(5) and (1) and 8(d) of the Act by paying Mercywood unit employees a $400 bonus and by chang- ing their insurance program I so find 27 c Effects bargaining The complaint (pars . 13 and 29) alleges that, since about 19 August, Respondent unlawfully refused to bar- gain over the effects of its decision to relocate Mercywood . Respondent's answer denies this allegation. The relevant evidence follows On 9 July Fecteau wrote Respondent (G.C Exhs 3 and 4) to request bargaining meetings "over the effects" of the scheduled Mercywood "relocation " Fecteau re- peated that was the purpose of the meeting scheduled for 8 August (See G.C Exh 5) The parties finally met on 19 August On that date, Mikesell assured the Union that Respondent intended to respect the then-current collec- tive-bargaining agreement Evidence, not previously re- ported, shows the decision to withdraw recognition from the Union was made in August or September 28 When Respondent notified the unit employees, on 30 October, that it had withdrawn recognition from the Union it also informed the employees of their eligibility for the bonus payments and the change in health pro- gram. I find Respondent's 30 October publication of its decision to make the unlawful unilateral changes to be cogent evidence of Respondent 's bad faith in dealing with its obligation to engage in bargaining over the ef- fects of Mercywood 's move. The totality of germane evidence demonstrates that Respondent was deferring such effects bargaining by Mi- kesell's oral and written assurances . Yet, virtually con- current with those statements , Respondent was planning for, and ultimately unilaterally implemented , a complete repudiation of the Union 's representative status Re- spondent's 30 October announcement of its recognition withdrawal and unilateral changes was an accomplished fact. The Board, in similar circumstances , approved the administrative law judge's finding that an employer un- lawfully refused to bargain (See Central Soya, supra at 1309.) Accordingly , I find that Respondent violated Sec- 27 The General Counsel argues , as the complaint alleges, that the uni- lateral changes are discriminatory in violation of Sec 8(a)(3) of the Act because they are "inherently destructive" of important employee rights I find it unnecessary to resolve that assertion , inasmuch as I conclude the remedy I shall recommend for violations that are found herein would not be enhanced should the General Counsel prevail on the 8(a)(3) allegation 28 See testimony of Dennis Colling, Respondent's administrator for human resources (Tr 252-254) 1124 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tion 8(a)(5) and (1) of the Act by failing and refusing to bargain over the effects of its decision to relocate Mercywood as alleged in the complaint. d Refusal to supply information On 19 August, during the meeting among Mikesell, Brown, Haggerty, and Fecteau, the Union orally request- ed Respondent to furnish specific information about Mercywood's relocation and its effects on the unit em- ployees and on the Union As earlier observed, Mikesell and Brown said the employees would move en masse and Respondent intended to "respect" the contract Fec- teau's 12 November letter to Mikesell (G.C. Exh. 1(c) and Exh A)29 contains five numbered paragraphs that request extensive and explicit information regarding the relocation and the basis on which Respondent withdrew recognition Mikesell's 20 November response (GC Exh. 11) shows Respondent declined to comply with the Union's information request. Respondent does not contest the relevancy of the re- quested information My examination of the Union's 12 November written request persuades me it is patently rel- evant This confirms Fecteau's previously unreported tes- timony that she needed the information requested on 12 November "to verify whether there was a merger or not." (Tr. 53 ) The applicable legal precedent is clear An employer's duty to bargain in good faith includes the obligation to provide information needed by a bargaining agent for the proper performance of its duties NLRB v. Truitt Mfg. Co., 351 U.S 149 (1956) The right to receive informa- tion arises by operation of the Act itself, on an appropri- ate request, and the scope of the right is limited only by considerations of relevancy. Ellsworth Sheet Metal, 224 NLRB 1506, 1507 (1976) In Bohemia, Inc., 272 NLRB 1128, 1129 (1984), the Board observed. an employer must provide a union with re- quested information "if there is a probability that such data is relevant and will be of use to the union in fulfilling its statutory duties and responsibilities as the employees' exclusive bargaining representative " Associated General Contractors of California, 242 NLRB 891, 893 (1979), enfd. 633 F.2d 766 (9th Cir 1980), NLRB v. Acme Industrial Co, 385 U S. 432 (1967) The Board uses a liberal, discovery-type standard to determine whether information is rele- vant, or potentially relevant, to require its produc- tion. NLRB v. Truitt Mfg Co., 351 U S. 149 (1956) supra. Information about terms and conditions of employment of employees actually represented by a union is presumptively relevant and necessary and is required to be produced. Ohio Power Co., 216 NLRB 987 (1975), enfd 531 F.2d 1381 (6th Cir. 1976) I conclude the information requested is presumptively relevant to the performance of the Union's collective- bargaining obligations. The information would have as- 29 There is no evidence the Union made any information requests be- tween 19 August and 12 November silted the Union in assessing its claim to representational rights, in developing proposals for bargaining over the effects of Mercywood's move, and for going forward in negotiations for a new collective-bargaining agreement On the foregoing, I find Respondent violated Section 8(a)(5) and (1) of the Act by refusing to provide the Union with the requested information since 19 August 30 e Refusal to meet and bargain for a new collective- bargaining agreement and repudiation of 1985-1986 agreement Complaint paragraph 18 alleges that since 4 Septem- ber, Respondent refused to meet and bargain over terms of a successor agreement to its November 1985-Novem- ber 1986 contract with the Union Complaint paragraph 20 alleges Respondent violated Section 8(a)(5) and ( 1) since 30 October by its failure and refusal to maintain the collective -bargaining agreement terms in effect The Union mailed its proposals for a new col lective- bargaining agreement to Respondent on 6 October (G C Exh. 8) The bargaining session that had been arranged for 10 October was canceled . In place of negotiations, Respondent told the Union bargaining could be of no avail because of the uncertainty regarding the status of Mercywood 's move Thereafter, the Union requested Re- spondent schedule bargaining sessions Once again, though such sessions were scheduled for 5 and 6 Novem- ber, they did not take place Instead, Respondent with- drew recognition on 30 October No further meetings were scheduled or held. The evidence clearly shows that Respondent 's with- drawl of recognition on 30 October comprised a total re- pudiation of its collective -bargaining agreement and rela- tionship with the Union. The unilateral payment of the $400 bonus , and the change of insurance program are evidence that Respondent no longer considered itself bound by the collective-bargaining agreement. Also, those unilateral changes signify that the Respondent was no longer applying and adhering to the terms of the ne- gotiated collective-bargaining agreement. No additional authority need be cited to support the finding, which I now make, that Respondent engaged in an unlawful refusal to bargain violative of Sections 8(a)(5) and ( 1) and 8(d) of the Act by failing and refusing to meet and bargain over a new collective-bargaining agreement and by failing to apply the terms and condi- tions of the 1985-1986 collective -bargaining agreement to the bargaining unit employees since 30 October. 30 The complaint alleges the first refusal to supply information oc- curred on 9 July (complaint par 12) 1 can find no testimonial or docu- mentary evidence to support that allegation The 19 August date I have selected comports with the allegation in complaint par 13 I have select- ed that date because the Union's clear request for relevant information was met with reassurances which, in my view, were tantamount to a re- jection because when made, Respondent was concurrently making plans to withdraw recognition Moreover, I interpret the statement that Re- spondent would recognize the contract as a declaration no information would be provided because it was not needed MERCYWOOD HEALTH BUILDING 1125 CONCLUSIONS OF LAW 1 Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2 The Union is a labor organization within the mean- ing of Section 2(5) of the Act 3 The bargaining unit identified in section III,A,1, supra, is an appropriate unit for collective-bargaining within the meaning of Section 9(b) of the Act. 4 Respondent refused to bargain in violation of Sec- tion 8(a)(5) and (1) of the Act when it, on 30 October 1986, withdrew recognition from the Union as collective- bargaining representative of the employees in the bar- gaining unit found appropriate 5 Respondent refused to bargain in violation of Sec- tions 8(a)(5) and (1) and 8(d) of the Act when it changed, about 15 November 1986, the insurance pro- gram of, and paid $400 bonuses to the employees in the bargaining unit found appropriate 6. Respondent refused to bargain in violation of Sec- tions 8(a)(5) and (1) and 8(d) of the Act when it failed and refused, since 19 August 1986, to bargain over the effects of its decision to relocate the Mercywood facility to the Huron Drive site. 7 Respondent refused to bargain in violation of Sec- tion 8(a)(5) and (1) of the Act by failing and refusing, since 19 August 1986, to provide the Union with rele- vant information necessary to the Union's performance of its collective-bargaining obligations 8 Respondent refused to bargain in violation of Sec- tion 8(a)(5) and (1) of the Act by failing and refusing to meet with the Union since about 6 October 1986 for pur- poses of engaging in collective bargaining over terms of a successor collective-bargaining agreement to the 1985- 1986 collective-bargaining contract 9 Respondent refused to bargain in violation of Sec- tion 8(a)(5) and (1) and 8(d) of the Act by failing to apply the terms and conditions of its collective-bargain- ing agreement to the employees in the unit found appro- priate since 30 October 1986 10. The above unfair labor practices affect commerce within the meaning of the Act THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I find it necessary to order it to cease and desist and to take certain affirmative action de- signed to effectuate the policies of the Act I shall order Respondent to 1 On the Union's request, recognize it as the exclusive collective-bargaining representative of the employees in the bargaining unit found appropriate 2. Bargain collectively and in good faith with the Union, at the Union's request, over terms for a new col- lective-bargaining agreement for, and the effects of Mercywood's relocation on, the employees in the bar- gaining unit found appropriate and, if agreements are reached, to reduce them to writing and sign them 3 Provide the Union with all information requested, or that it may request, in connection with the orders to bargain, and that is relevant and necessary to the Union's performance of its collective-bargaining responsibilities and obligations 4 If requested by the Union, reinstitute the terms and conditions of employment for bargaining unit employees as they existed at the 30 October 1986 withdrawal of rec- ognition 5. Make whole any of the employees in the bargaining unit found appropriate for all losses of wages or other employment benefits incurred as a result of Respondent's failure to give effect to the terms of its November 1985- 1986 collective-bargaining agreement with the Union Loss of such earnings shall be computed as prescribed in F W Woolworth Co., 90 NLRB 289 (1950), and New Ho- rizons for the Retarded, 283 NLRB 1173 (1987) 31 6 If requested by the Union, revoke any unilateral changes in rates of pay, wages, and other terms and con- ditions of employment unless and until negotiated 7 In any like or related manner refrain from interfer- ing with, restraining, or coercing employees in the exer- cise of their Section 7 rights.32 8. Post appropriate notices to its employees. On the above findings of fact, conclusions of law, and the entire record, I issue the following recommended33 ORDER The Respondent, Catherine McAuley Health Center, a Division of Sisters of Mercy Health Corporation, d/b/a Mercywood Health Building, Ann Arbor, Michigan, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to recognize and bargain with Local 79, Service Employees International Union, AFL-CIO as the exclusive collective-bargaining representative with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment of the em- ployees in the following bargaining unit- All full-time and regular part-time environmental aides, linen aides, discharge cleaning aides, environ- mental specialists, lead aides, wall washers, food service workers, dishwashers, cooks I, and cooks II, head cooks, psychiatric aids, maintenance employ- ees, groundskeepers, drivers, maintenance utility workers, lead groundskeeper, mechanic boiler relief employees, painters, coordinator preventive mainte- nance employees, construction coordinators, recre- ational therapy aides, occupational therapy aides, and unit information clerks, employed in Mercy- wood Health Building34 but excluding all office 31 See generally Iris Plumbing Co, 138 NLRB 716 (1962) 32 There is no evidence Respondent has a proclivity to violate the Act See Hlckmott Foods, 242 NLRB 1357 (1979) 33 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 34 I have conformed the name of the employer to the motion to amend Its name 1126 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD clerical employees, casual employees, guards and supervisors as defined in the Act, and all other em- ployees. (b) Unilaterally changing the rates of pay, wages, hours of employment, and other terms and conditions of employment of the employees in the bargaining unit found appropriate unless and until it notifies Local 79, Service Employees International Union, AFL-CIO of such an intention and gives that labor organization an opportunity to bargain over such change(s). (c) Refusing to provide the Union with information relevant to the relocation/ consolidation of the Mercywood Hospital facility to the Huron River Drive campus on 25 October 1986 and relative to negotiations for a new collective-bargaining agreement to replace that which expired on 7 November 1986 (d) Refusing to bargain collectively with the Union relative to the effects on the employees in the bargaining unit found appropriate of the relocation/consolidation of the Mercywood Hospital facility to the Huron River Drive campus on 25 October 1986. (e) Refusing to bargain collectively with the Union rel- ative to terms of a collective-bargaining agreement to re- place the agreement that expired on 7 November 1986. (f) 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, recognize the Union as exclusive col- lective-bargaining representative of the employees in the unit found appropriate, and bargain collectively with it over the effects of the relocation-consolidation of the Mercywood Hospital facility to the Huron River Drive campus on 25 October 1986; and to bargain with the Union over terms for a new collective-bargaining agree- ment to replace the 1985-1986 agreement; and, if agree- ment is reached, to reduce such agreement to writing and, at the Union's request, sign it. (b) On request, furnish the Union with information rel- evant to the relocation/consolidation of Mercywood Hospital to the Huron River Drive campus on 25 Octo- ber 1986 and relevant to negotiations over terms of a new collective-bargaining agreement to replace the ex- pired 1985-1986 contract (c) If requested by the Union, reinstitute the terms and conditions of employment for the employees in the bar- gaining unit found appropriate as they existed on 30 Oc- tober 1986, and, if requested by the Union, revoke any unilateral changes in rates of pay, wages, hours, and other terms and conditions of employment for such bar- gaining unit employees unless and until negotiated. (d) Make whole any of the bargaining unit employees for all losses of wages or other employment benefits in- curred as a result of Respondent's failure to give effect to the terms of its November 1985-1986 collective-bar- gaining agreement Such payments shall be with interest computed in accordance with the formula set forth above in the remedy section of this decision. (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 Huron River Drive campus, Ann Arbor, Michigan, copies of the attached notice marked "Appen- dix "35 Copies of the notice, on forms provided by the Regional Director for Region 7, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, de- faced, or covered by any other material. (g) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply.36 as 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 " as The General Counsel asserts a visitatonal clause should be included in the Order I disagree I find that the record does not show it likely the Board would have difficulty obtaining compliance or enforcement of any order it should issue in this case 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. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities. WE WILL NOT refuse to recognize and bargain with Local 79, Service Employees International Union, AFL- CIO as the exclusive collective-bargaining representative with respect to rates of pay, wages, hours of employ- ment, and other terms and conditions of employment of the employees in the following appropriate bargaining unit: All full-time and regular part-time environmental aides, linen aides, discharge cleaning aides, environ- mental specialists, lead aides, wall washers, food service workers, dishwashers, cooks I, cooks II, head cooks, psychiatric aids, maintenance employ- MERCYWOOD HEALTH BUILDING 1127 ees, groundskeepers, drivers, maintenance utility workers, lead groundskeeper, mechanic boiler relief employees, painters, coordinator preventive mainte- nance employees, construction coordinators, recre- ational therapy aides, occupational therapy aides, and unit information clerks, employed at Mercy- wood Health Building, but excluding all office cleri- cal employees, casual employees, guards and super- visors as defined in the Act, and all other employ- ees. WE WILL NOT unilaterally change the rates of pay, wages, hours of employment, and other terms and condi- tions of employment of the employees in the bargaining unit found appropriate without first notifying Local 79, Service Employees International Union , AFL-CIO of such an intention and giving that labor organization an opportunity to bargain over such change(s). WE WILL NOT refuse to provide the above-named Union with information relevant to the relocation/- consolidation of our Mercywood Hospital facility to our Huron River Drive campus on 25 October 1986 and rela- . tive to negotiations for a new collective -bargaining agreement to replace that which expired on 7 November 1986. WE WILL NOT refuse to bargain collectively with the above-named Union relative to the effects on the em- ployees in the bargaining unit found appropriate of the relocation/consolidation of our Mercywood Hospital fa- cility to our Huron River Drive campus on 25 October 1986. WE WILL NOT refuse to bargain collectively with the above-named Union relative to terms of a collective-bar- gaining agreement to replace the agreement which ex- pired on 7 November 1986. WE WILL NOT in any like or related manner interfere with, restrain , or coerce our employees because they engage in any of the activities at the top of this notice. WE WILL, on request, recognize the above-named Union as exclusive collective-bargaining representative of the employees in the appropriate bargaining unit de- scribed above and WE WILL bargain collectively with it over the effects of the relocation -consolidation of the Mercywood Hospital facility to our Huron River Drive campus on 25 October 1986, and WE WILL bargain with the Union over terms for a new collective -bargaining agreement to replace the 1985 - 1986 agreement ; and, if agreement is reached , we will reduce such agreement to writing and , at the Union's request , sign it WE WILL, on request, furnish the above -named Union with information relevant to the relocation/consolidation of Mercywood Hospital to our Huron River Drive campus on 25 October 1986 and relevant to negotiations over terms of a new collective -bargaining agreement to replace the expired 1985 - 1986 contract WE WILL, if requested by the above -named Union, reinstitute the terms and conditions of employment as they existed on 30 October 1986 for the employees in the bargaining unit described above; and , if requested by the Union, WE WILL revoke any unilateral changes in rates of pay, wages, hours, and other terms and conditions of employment for such bargaining unit employees unless and until negotiated WE WILL make whole, with interest , the bargaining unit employees for all losses of wages or other employ- ment benefits incurred as a result of our failure to give effect to the terms of the November 1985-1986 collec- tive-bargaining agreement with the above -named Union CATHERINE MCAULEY HEALTH CENTER, A DIVISION OF SISTERS OF MERCY HEALTH CORPORATION, D/B/A MERCYWOOD HEALTH BUILD- ING