Corpus Christi Medical Center

796 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Bay Area Healthcare Group, LTD., d/b/a Corpus Christi Medical Center and Service Employees International Union Healthcare Texas Columbia Rio Grande Healthcare, L.P., d/b/a Rio Grande Regional Hospital and Service Employ- ees International Union Healthcare Texas El Paso Healthcare System, LTD., d/b/a Las Palmas Medical Center, A Campus of Las Palmas Del Sol Healthcare and Service Employees Interna- tional Union Healthcare Texas El Paso Healthcare System, LTD., d/b/a Del Sol Med- ical Center, A Campus of Las Palmas Del Sol Healthcare and Service Employees International Union Healthcare Texas. Cases 16–CA–105302, 16–CA–105309, 16–CA–105485, and 16–CA– 105525 May 27, 2015 DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS JOHNSON AND MCFERRAN On November 21, 2014, Administrative Law Judge Jo- el P. Biblowitz issued the attached decision. The Gen- eral Counsel and Charging Party filed exceptions and supporting briefs, the Respondent filed a response brief, and the General Counsel and Charging Party filed reply briefs. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,1 and conclusions and to adopt the recommended Order.2 ORDER The recommended Order of the administrative law judge is adopted and the complaint is dismissed. 1 The General Counsel has excepted to some of the judge’s credibil- ity findings. The Board’s established policy is not to overrule an admin- istrative law judge’s credibility resolutions unless the clear preponder- ance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. 2 Member McFerran joins her colleagues in adopting the judge’s dismissal of the complaint. She does so because (1) the relevant collec- tive-bargaining agreements clearly and unmistakably permitted the Respondent to unilaterally replace a contractual “Extended Leave Bank” program with a “Time Away From Work” plan, if certain speci- fied conditions were met; and (2) the Respondent had a sound arguable basis for concluding that it had satisfied each of those contractual con- ditions. Eva Shih, Esq., for the General Counsel. Nancy Patterson, Esq. and A. John Harper, Esq. (Morgan, Lewis & Bockius LLP), for the Respondent. Manuel Quinto-Pozos, Esq. (Deats Durst Owen & Levy, PLLC), for the Charging Party. DECISION STATEMENT OF THE CASE JOEL P. BIBLOWITZ, Administrative Law Judge. This case was heard by me on September 29, 2014, in San Antonio, Tex- as. The consolidated complaint issued on September 27, 2013,1 and was based upon unfair labor practice charges that were filed on May 15 and 17 by Service Employees International Union Healthcare Texas (the Union). The complaint alleges that Bay Area Healthcare Group, Ltd., d/b/a Corpus Christi Medical Center (Corpus Christi), Columbia Rio Grande Healthcare, L.P., d/b/a Rio Grande Regional Hospital (Rio Grande), El Paso Healthcare System, Ltd., d/b/a Las Palmas Medical Center, A Campus of Las Palmas Del Sol Healthcare (Las Palmas), and El Paso Healthcare System, Ltd., d/b/a Del Sol Medical Center, a Campus of Las Palmas Del Sol Healthcare (Del Sol), and collectively as the Respondents and/or the Hospitals, each violated Section 8(a)(5) and (1) of the Act2 by failing to continue in effect all the terms of their contracts with the Union by unilaterally implementing a Time Away from Work Program (TAFW), to replace the Extended Illness Bank (EIB), article 38 of their contracts with the Union, without the Union’s consent. While admitting that they re- placed the EIB plan with the TAFW plan, Respondents defend that this was permitted by their contracts with the Union. I. JURISDICTION AND LABOR ORGANIZATION STATUS Respondents admit, and I find, that each has been an em- ployer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and has been a healthcare institu- tion within the meaning of Section 2(14) of the Act, and that the Union has been a labor organization within the meaning of Section 2(5) of the Act. II. THE FACTS The Union was certified as the exclusive collective- bargaining representative of certain employees at each of the hospitals involved herein, although there are slight differences in the dates of certifications, the appropriate unit, and the effec- tive dates of the contracts. The Union was certified by the Board as the representative of the Corpus Christi employees on June 3, 2010, for the unit set forth below, and the contract be- tween the parties was effective February 16, 2012, through May 31, 2014. For Rio Grande, the certification date was July 7, 2010, for the unit set forth below, and the contract was effective from February 16, 2012, through May 31, 2014. For Las Pal- mas, the certification date was May 28, 2010, the unit is set forth below, and the term of the contract was February 16, 1 Unless indicated otherwise, all dates referred to herein relate to the year 2013. 2 At the conclusion of the hearing, counsel for the General Counsel amended the complaint to also include an allegation that this change also violated Sec. 8(d) of the Act. 362 NLRB No. 94 CORPUS CHRISTI MEDICAL CENTER 797 2012, through May 31, 2014. For Del Sol, the Union was certi- fied on May 26, 2010, in the unit set forth below, and the term of the contract was February 16, 2012, through May 31, 2014. The sole allegation herein is that on about April 7, the Re- spondents each replaced the EIB, article 38 of each of the con- tracts, with the TAFW, Short Term Disability Plan, without the consent of the Union, in violation of Section 8(a)(5) and (1) and 8(d) of the Act. Stipulated Facts The parties agreed that each of the following constitute an appropriate unit for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: For Corpus Christi: All full-time, part-time, and PRN em- ployees employed by Corpus Christi Medical Center in the service and maintenance, technical, and skilled maintenance bargaining units, excluding all other employees, confidential employees, registered nurses, professional employees, busi- ness office clerical employees, managerial employees, guards and supervisors. For Rio Grande: All full-time, part-time, and PRN employees employed by Rio Grande Medical Center in the service and maintenance, technical bargaining units, and skilled mainte- nance bargaining units, excluding all other employees, confi- dential employees, registered nurses, professional employees, business office clerical employees, managerial employees, guards and supervisors. For Las Palmas: All full-time, part-time, and PRN employees employed by Las Palmas Medical Center in the service and maintenance, technical, skilled maintenance, and business of- fice clerical bargaining units, excluding all other employees, confidential employees, registered nurses, professional em- ployees, managerial employees, guards and supervisors. For Del Sol: all full-time, part-time and PRN employees em- ployed by Del Sol Medical Center in the service and mainte- nance, technical, and skilled maintenance bargaining units, excluding all other employees, confidential employees, regis- tered nurses, professional employees, business office clerical employees, managerial employees, guards and supervisors. Each of these Stipulations also states that it shall also apply to any employees who are added to the bargaining units by unit clarification, accretion, and/or agreement by the parties. The Stipulation further states that each hospital’s contract contains an EIB provision in article 38 of the contract which provides income continuation benefits for certain employees in certain circumstances, with the following Plan Modification language: The Hospital agrees to maintain the EIB plan described herein for the duration of this Agreement. However, changes and/or substitutions to such plans may be made provided the Hospi- tal: (a) affords the Union 60 days’ notice of a change; (b) agrees to bargain with the Union over the effects of the changes and/or substitutions, and (c) the change(s) and/or substitution either (1) apply prospectively (i.e., current em- ployees maintain the current benefit), or do not result in a ma- terial and substantial decrease in the overall plan benefit. The Corpus Christi EIB policy, set forth in article 38 of its contract with the Union, includes the following provisions: (i) accrual rate of 3.08 hours per pay period; (ii) maximum bene- fit of 480 hours; (iii) waiting period of 24 consecutive hours; (iv) use for dependent care available to 80 hours maximum; (v) medical verification can be required; (vi) only full-time employees eligible. The Rio Grande EIB policy, also set forth in article 38 of its contract with the Union, includes the following provisions: (i) accrual rate of 3.076 hours per pay period; (ii) maximum ben- efit accrual of 840 hours; (iii) waiting period of 3 8-hour or 2 12-hour shifts; (iv) no use for dependent care; (v) medical ver- ification can be required; (vi) 90-day waiting period before available; (vii) only full-time employees eligible, but part- time employees who work at least 20 hours eligible if they had hours in the EIB before taking part-time status (but do not accrue additional EIB hours). The Las Palmas EIB policy and the Del Sol EIB policy, also set forth in their contracts with the Union, both include the following provisions: (i) an accrual rate of 2.77 hours; (ii) maximum benefit accrual of 867 hours; (iii) waiting period of 16 consecutive scheduled work hours; (iv) no use for depend- ent care; (v) written medical verification can be required; (vi) 90-day waiting period before eligible;(vii) only regular full- time employees eligible. The EIB plans for each of these Hospitals were self- administered. The Stipulation continues that on January 3, 2013 Corpus Christi and Rio Grande provided the Union with notice of its intent to change-over from EIB to TAFW, while Las Palmas and Del Sol gave this notice on January 30, 2013 and that each Hospital operates on a bi-weekly pay period making each “pay period” under the respective EIB policy 2 weeks. On February 7, 2013, the Union made a written request to bargain regarding Respondent’s proposed EIB plan changes, and a meeting was held between the Hospitals and the Union regarding the intended changes, and information was provid- ed by the Hospitals to the Union regarding the changes be- fore, during and after the meeting. Corpus Christi, Rio Grande, Las Palmas and Del Sol each im- plemented an identical TAFW program on April 7, 2013. As implemented, the TAFW program regarding short-term disa- bility (“STD”) includes the following provisions: (i) effective 30 days after hire; (ii) covers full and part time employees; (ii) requires a 7-day calendar waiting period; (iv) provides cover- age only for employees; (v) provides up to 20 weeks of bene- fits for each separate illness or injury; (vi) pays 60 percent of base wages for employees with 0–5 years of service (who may elect “buy up” to 80 percent, at their expense), 80 percent of base wages for employees with 5–9 years of service, and 100 percent of base wages for employees with 10 years or more of service. These plans are administered by Sedgwick, a third-party plan administrator. As of April 9, 2013, employees no longer ac- crued EIB hours under TAFW. 798 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Testimony Michael Lamond, the director of labor relations for Corpus Christi, Amparo Enchinton, organizer and representative for the Union, Charlene Jones, the director of employee benefits for HCA Management Services, which manages the health and group benefit plans for HCA affiliated facilities, including the four hospitals herein, and Paul Hitchcox, actuary who partici- pated in the development of the TAFW program, each testified about the operation of, and benefits afforded by, EIB and TAFW. Lamond testified that on March 14, representatives of the four hospitals met with union representatives to discuss the proposed changes to EIB. The hospitals gave a 15- to 20- minute presentation explaining how the new program changed the benefits from the EIB program, at the conclusion of which the union representatives requested a caucus. When they re- turned, they asked additional questions about the proposed changes to the plan and its benefits, which the Hospitals’ repre- sentatives answered. In addition there was a discussion about extending the deadline for employees to purchase the supple- mental insurance buy-up option, which allowed employees with up to 5 years of service, who were to receive 60 percent of wages if they were eligible for the benefit under TAFW, to elect to purchase an additional 20 percent at their expense, to bring their benefit to 80 percent.3 At this meeting, the hospitals agreed to extend the deadline for this purchase from the follow- ing day to the end of the month. Between the date of that meet- ing and April 4, the Union requested certain information re- garding the proposed changes, which the hospitals responded to. On April 7, the hospitals implemented the change from EIB to TAFW and since that date all existing employees and new employees have been given literature and/or power point presentations describing the TAFW and short-term disability program. As regards the difference between EIB and TAFW, Lamond testified that while EIB covered full-time employees, TAFW covered full-time and part-time employees; TAFW had no cov- erage for illness for family members or dependents, although an individual employed at Corpus Christi could use up to 80 hours of accrued EIB benefits for illness for family members or de- pendents. TAFW has a 7-day waiting period before employees are eligible to receive benefits so that if an eligible employee under the new plan was hospitalized for 8 days, he/she would receive benefits for 1 day, but could use paid time off (PTO) that he/she had accrued to cover some or all of the other days. He testified that with hospitalizations under EIB, coverage began immediately, so that same employee would receive 8 days of pay. Enchinton was employed at Del Sol as a surgical technolo- gist for about 10 years prior to her employment with the Union in 2011. She testified that after receiving notice from the Hospi- tals about the proposed changes to EIB, she wrote to Leonard 3 Under TAFW, eligible employees with 5 to 10 years of service re- ceive 80 percent of their wages, but cannot purchase the supplemental buy-up insurance. Eligible employees with 10 years or more of service receive 100 percent of wages under the new plan. Ochart, labor relations director for Las Palmas and Del Sol on February 7: I am in receipt of your January 30 email concerning the pro- posed benefit plan changes. Please be advised that the posi- tion of the union is that this issue is addressed in Article 37 Section 10 and Article 38 Section 6 of the Collective Bargain- ing agreement in effect between the parties, and that the pro- posed change is a unilateral change in violation of the con- tract. The company is not at liberty to unilaterally disregard the provisions bargained for in the contract. Therefore, the un- ion demands that you cease any implementation of these pro- posed changes and that if the company desires to move for- ward with changes to the benefit plan, the union requests that the company bargain any such changes prior to any imple- mentation. The parties met on March 14, at which time the Respond- ent’s representatives gave a presentation of the TAFW plan and the changes that it would entail. At the conclusion of this presentation, the union representatives caucused and prepared questions for the Respondent’s representatives. When they returned, they asked these questions, including whether pay- ments to the employees would be made in a timely manner (the answer was that there would be no delay in payments as Sedg- wick was timely and efficient), and whether intermittent (not hospitalization) leave would be affected, and the response was that it would be as TAFW did not cover intermittent leave. At the Union’s request, on March 15 Ochart sent an email to En- chinton stating: “As we continue to discuss the PTO EIB pro- posals, it would be appropriate if the Supplemental 20-percent sign up period be extended” and on March 20, the vice presi- dent of human resources for Las Palmas and Del Sol sent emails to the employees notifying them that the enrollment period for the Supplemental Short-Term Disability Plan was extended to March 31. After the implementation of TAFW she requested to meet with Ochart and asked if they would reverse the implementation of TAFW and if they would allow employ- ees to use banked EIB hours for family members. Ochart told her that he didn’t have control of that; it was a corporate deci- sion. She testified further that during her 10-year employment pe- riod with Del Sol, she used her EIB benefits on a number of occasions. On each of these occasions he was required to com- plete one page of an application with her physician completing the other pages stating that she was under his care. During the period that she was absent from work she continued to receive her paycheck from the hospital with the regular deductions, and without any delay; she was never denied her EIB benefits. She was hospitalized sometime prior to 2002, but cannot recollect the amount of time that she was in the hospital or under the doctor’s care, but she had accrued a sufficient amount of time under EIB to cover it. Prior to the birth of her son in 2002 she took a month off and was paid for this time with her accrued EIB hours. She returned to work for about 3 weeks and, after giving birth, she was out of work for about 6 weeks and was reimbursed for this time as well with EIB as well as her PTO accumulated hours. In addition, in 2006 she was out for two 1- week periods and on both occasions her EIB bank covered her CORPUS CHRISTI MEDICAL CENTER 799 full pay during these periods, and in 2006 she was out on bed rest for a period of time and had to use 16 hours of PTO to supplement her EIB benefits.4 Jones testified that she is familiar with the functionality of the EIB program, but as it was administered on a local level she is not familiar with the accruals under that plan, although she is familiar with the TAFW plan which employees are eligible for after 30 days’ employment. She testified that under the new plan, employees would be entitled to 6 weeks’ paid leave for a normal childbirth, after the required 7-day unpaid waiting peri- od; if she obtained a medical certification from her physician that her medical condition required longer than that period, she could be paid for up to 20 weeks for the delivery. That 20-week maximum is per event, not per year. She testified: “I could go out and have that baby, and come back to work for two months and then have a car accident, and have another up to 20 weeks of pay, with the appropriate disability . . . and medical certifica- tion.” She testified that the hospitals’ records indicate that no employee with the appropriate medical certification has been denied maternity leave in excess of 6 weeks. She testified, as well, that as Sedgwick is the third-party ad- ministrator of TAFW, the Hospitals are no longer processing the employees’ regular paychecks during hospitalizations. Un- der the new system the medical documentation forms are sent to the employees either by fax, email, or are mailed to the em- ployee by Sedgwick, and Sedgwick has 48 hours to provide the employees with these forms. So long as these forms are re- turned 5 days prior to the date that the checks are issued, the employee will receive his/her check at the regular time. If not, they will receive “an off-cycle check . . . as soon as administra- tively possible.” There is an exception for the deduction of employees’ health insurance premiums, however. She testified that as Sedgwick does not know what the deductions are, the Hospitals employ another vendor, Bconnected, which sends a bill to employees for the amount of the health insurance premi- um, to be paid directly to Bconnected. Under EIB, while out, the employees received an invoice from their employer which paid the carrier directly. While the payment method has changed under TAFW, the amount to be paid remains the same. In addition, employees who had accumulated, but unused time under EIB, would receive “100% replacement pay” for their first time out under TAFW. Hitchcox, who is employed by Trion, a subsidiary of Marsh & McLennan, has been employed as an actuary for 34 years and was involved in working with the Respondents’ EIB pro- grams. In addition, he has been involved in TAFW: “Just to develop a program that could provide a longer period of bene- fits to employees if they became disabled.” In preparation for this hearing, at the request of counsel for the Respondents, he did analyses of the EIB and TAFW plans at the Hospitals. His testimony included graphs and diagrams in which he compared the number of employees covered under each plan, the number of leaves and claims under the plans, and the cost of these plans to the Hospitals. The period of time covered in these analyses 4 Under the EIB plan, employees on EIB leave continue to accrued PTO; under the TAFW plan, they do not accrue PTO while on TAFW leave. was generally 2010 through April 7, 2013, for EIB, and the 1- year period after April 7, 2013, the effective date of TAFW. He testified that employees accrued hours under EIB and when they were out on approved leaves, they received 100-percent wage replacement for that leave until they used up their accrued hours; when the hospitals switched to TAFW, these accrued hours were carried over to the new program with no loss to the employees and was renamed: “100% wage replacement hours.” TAFW is “service based,” so the benefit depends upon the em- ployee’s length of service; employees with up to 5 years of service receive 60-percent wage replacement, between 5 and 10 years, 80 percent, and in excess of 10 years, 100-percent wage replacement. Eligibility: Under EIB, employees at Corpus Christi were eligi- ble to participate in the plan immediately upon employment; for the other three hospitals, they were eligible after 90 days of employment. Under TAFW employees are eligible after 30 days of employment. EIB covered only full-time employees; TAFW covers full-time and part-time employees. Physician’s Statement: Both plans require a physician’s state- ment supporting the leave request, Individual or Family Coverage: Under EIB, Corpus Christi provided benefits to the employees and permitted the employ- ees up to 80 hours of leave (assuming that they had accumulat- ed that much leave at the time) to spend for a family member who was ill. For Rio Grande, Las Palmas, Del Sol under EIB, and each of the hospitals under TAFW, only the employees are covered. Waiting (or Elimination) Period: Each of the hospitals had a waiting period before the employees became eligible to partici- pate in the plan. Under EIB, Corpus Christi and Rio Grande had a 24-hour waiting period, while Las Palmas and Del Sol had a 16-hour waiting period. Under TAFW the waiting period for each of the Hospitals is 1 workweek. Accrual of Hours: As EIB is an accrued benefit, employees accrued EIB hours (ranging from 2.77 to 3.08) per pay period. The maximum number of accruable hours varied by hospital: Del Sol and Las Palmas allowed a maximum of 867 hours, while Corpus Christi allowed up to 480 and Rio Grande, up to 840. At the time of the changeover from EIB to TAFW, 161 employees of the Hospitals had no EIB accrued balance, 303 had 2 weeks or less accrued balance, 265 had between 2 weeks and 6 weeks accrued balance, and 123 had in excess of 20 weeks coverage. Under TAFW there is no longer an accrual of hours. As stated above, the hospitals pay from 60 percent to 100-percent wage reimbursement depending upon the length of service of the employee. As part of his analysis, Hitchcox found that on April 7, the average number of accrued hours under EIB varied from 192 at Del Sol to 312 at Rio Grande. While EIB coverage was limited to the employees’ accrued EIB hours, TAFW pays for up to 20 weeks of coverage5 for each occurrence. Hitchcox prepared a chart that is meant to show the average loss of income under EIB as compared to TAFW. After 5 Hitchcox testified that “very few employees, if any” received the full 20 weeks of coverage. 800 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the waiting period discussed above, he concluded that, under EIB, the average employee would receive 100 percent of al- most 7 weeks of pay, while under TAFW, the average employ- ee, after the 1-week waiting period, would receive 60 percent, 80 percent or 100 percent of their pay, depending upon years of service, for up to 20 weeks’ absence, with a physician’s state- ment affirming the need for that amount of time off. Hitchcox found that at the time of the changeover from EIB to TAFW, 857, or 48 percent of the employees had 5 years or less em- ployment at the Hospitals, with an average of 2 weeks of EIB time accrued, 431 or 24 percent had from 5 to 10 years of em- ployment, with an average of 8 weeks of EIB time accrued, and 509, or 28 percent, had in excess of 10 years employment, with an average of 13 weeks EIB time accrued. From these figures, Hitchcox concluded that under EIB, the first group would have 100 percent of their benefits paid for 2 weeks, while under TAFW they would have 60 percent of the benefits paid for up to 20 weeks. Under EIB, the second group would have 100- percent coverage for 8 weeks while under TAFW they would have 80-percent coverage for up to 20 weeks, and for the final group, under EIB, they would have 100-percent coverage for up to 13 weeks’ coverage, while under TAFW they would have 100-percent coverage for up to 20 weeks. In addition, those employees with an EIB balance at the time of the changeover, could use that entire balance to supplement their TAFW bene- fit. Claims: Both before and after April 7, the Hospitals employed approximately 1,500 employees who were eligible to partici- pate in the plans. During the years 2010, 2011, and 2012 there were, on average, 471 leaves under EIB, costing the hospitals approximately $600,000 to $700,000 yearly. For the period April 7, 2013 through April 6, 2014, under TAFW, 221 submit- ted 261 leave requests, of which 197 were approved and 64 were denied. Of the 64, 38 of these were denied for the failure to supply medical information, 15 for an incomplete applica- tion, 7 because the employee returned to work during the wait- ing period, 3 because the application did not support a disability and 1 was a plan exclusion. Hitchcox prepared a summary and chart, by hospital, show- ing what employees of the Hospitals actually received in TAFW benefits for the period April 7 through April 6, 2014, as compared to what they would have received for that period under EIB. Rio Grande had 47 approved leaves during that period for which they were paid a total of 229.4 weeks of bene- fits. According to his calculation, for the same claims, 130.2 weeks of benefits would have been paid under the EIB plan. Del Sol had 59 approved leaves during the period in question for which they paid 356 weeks of benefits. These claimants would have received 175 weeks of benefits under EIB. Las Palmas had 37 approved leaves during that 1-year period for which they paid 210 weeks of benefits; under the EIB plan, these claimants would have received 113 weeks of benefits. Corpus Christi had 54 approved leaves during this period, for which they were paid 319 weeks of benefits. The same claims under EIB would have been paid 130 weeks of benefits. Final- ly, Hitchcox took the actual cost of the TAFW benefits for the year beginning April 7, $683,342 and compared it to the pro- jected total cost for EIB for the same period, which he deter- mined to be $667,663. He also broke this down by hospital and determined that the actual cost of TAFW benefits for the period of April 7 through April 6, 2014, as compared to the projected cost for EIB for the same period was higher for Corpus Christi, Rio Grande, and Las Palmas, while it was lower for Del Sol. In answer to questions from counsel for the General Counsel, Hitchcox testified that in preparing his analyses of EIB and TAFW, he relied upon information that was prepared for him by the Hospitals, for the census and EIB claims, and by Sedg- wick, for TAFW claims. He did not request, or receive, the number of EIB leave requests that were denied. Additionally, he could not testify to how many of the leave requests that were denied under TAFW would have been approved under EIB. III. ANALYSIS The complaint alleges that on about April 7 the Respondents failed to continue in effect the terms and conditions of em- ployment set forth in their contracts with the Union by unilater- ally implementing the TAFW program that replaced the EIB program, and it is alleged that by this act the Respondents have failed and refused to bargain collectively and in good faith with the Union in violation of Section 8(a)(5) and (1) of the Act. Although a change such as this would normally constitute an unlawful unilateral change in violation of the Act, article 38 of the contracts between the Respondents and the Union permits such a change if certain requirements are met: it provides that the EIB plan shall remain in effect for the duration of the agreement, although changes and/or substitutions to the plan may be made provided the Respondents: (a) afford the Union 60-day notice of the change; (b) agrees to bargain with the Un- ion over the effects of the changes and/or substitutions; and (c) the changes and/or substitution either (1) apply prospectively (i.e., current employees maintain the current benefit), or (2) do not result in a material and substantial decrease in the overall plan benefit. The initial issue is whether the Respondents satis- fied these requirements and if they did, whether that constitutes a “clear and unmistakable waiver” by the Union of its right to bargain about such a change. Provena St. Joseph Medical Cen- ter, 350 NLRB 808, 815 (2007). Counsel for the General Coun- sel, while conceding that the Respondents satisfied the re- quirement of (a) by giving the required notice to the Union, in her brief argues that as there was no bargaining between the parties over this change, and as the change from the EIB to the TAFW plan resulted in a substantial and material decrease in the overall benefit plan, there was no clear and unmistakable waiver by the Union. The issue is whether the Respondents satisfied all of the re- quirements set forth in article 38, section 6. Pursuant to a re- quest to bargain from the Union, the parties met on March 14. After a presentation of the changes that TAFW entailed, the union representatives asked questions about these changes which the Respondents’ representatives answered. The union representatives asked the Respondents to extend the deadline to purchase the supplemental insurance buy-up option, and the Respondents agreed to extend the deadline from the following day to the end of the month. The evidence on this issue is lim- ited to the stipulations and some testimony from Lamond and CORPUS CHRISTI MEDICAL CENTER 801 Echinton, but there is no evidence that the Respondents refused to bargain with the Union over the effects of the substitution of TAFW for EIB; in fact, even though bargaining was limited, the parties did discuss the proposed changes, answered the Union’s questions and never refused a request by the Union to bargain. Further, the Respondents agreed to extend the buy-up deadline. I find that the Respondents satisfied subparagraph (b) of section 6. Finally, as the change in plans was applied retroac- tively, in order to determine whether the change in plans result- ed in a material and substantial decrease in the overall plan benefit, it is necessary to examine, and compare the benefits and requirements under the EIB Plan to the benefits and re- quirements of the TAFW Plan. Eligibility EIB TAFW Full-time employees. Full-time and part-time employees with Immediate at Corpus Christi; 90 days at least 20 hours a week employment. at Rio Grande, Del Sol and Las Palmas. After 30 days employment. Waiting Period Corpus Christi, 24 consecutive hours, After 1 work week. Rio Grande, three 8 hour or two 12 hour Shifts; Del Sol and Las Palmas, 16 consecutive scheduled work hours. EIB Hours Accrued Yearly and Maximum Hours Accruable Corpus Christi, and Rio Grande, 80 with No accrual of hours. Maximum of 480 (CC) and 840 (RG). Del Sol and Las Palmas, 72 with a maximum of 867 hours. Percentage Paid for Wage Replacement 100% of accrued hours. 60% for employees with less than 5 years’ employment; 80% for 5 to year’s employment, and 100% for excess of 10 years employment. Period of Time Covered Number of accrued hours Up to 20 weeks for each occurrence. Family Benefits Corpus Christi, dependent care for up No family benefits. to 80 hours; Others, no family benefits. Administration of Plans Administered by each hospital. Administered by Sedgwick, a third Party plan administrator. Physician Statement Required Yes. Yes 802 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD In their posthearing briefs, counsel for the General Counsel and counsel for the Charging Party point to the disadvantages of the TAFW plan as compared to the EIB plan, principally the 7-day waiting period before benefits kicked in, and the 60-and 80-percent payments to employees with fewer than 10 years employment, as compared to the 100-percent payment to em- ployees under EIB, assuming that they had accumulated the hours. On the other hand, counsel for the Respondents points to the advantages that the TAFW plan affords to the employees, such as that it covers part-time employees, is effective after 30 days employment, and provides coverage up to 20 weeks of coverage for each occurrence. As the other requirements of article 38, section 6 are satisfied, the ultimate question is whether the benefits under TAFW resulted “in a material and substantial decrease in the overall plan benefit.” The EIB plan was more beneficial to the unit employees in the waiting period before benefits kicked in (16 to 24 work hours as compared to 1 workweek under TAFW), paying 100 percent for accrued hours as compared to 60 to 100 percent under TAFW, dependent care, but only for the Corpus Christi unit employees as it covered them for dependent care for up to 80 hours, while the other hospitals and the TAFW plan did not cover family benefits, and administration of the plans might be more beneficial to the employees as there might be fewer de- lays in receiving their pay and benefits, although Enchinton testified that if the employees returned their paperwork in a timely manner, there would be no delay in their paychecks. TAFW was more beneficial to the employees as part-time em- ployees working at least 20 hours a week are eligible and the period of employment required is 30 days, as compared to im- mediately eligible at Corpus Christi and 90 days employment at the other hospitals. In addition, the period of time covered is substantially better under the TAFW plan as it covers up to 20 weeks for each occurrence, while under the EIB plan, coverage is limited to the number of EIB hours that the employee had accrued. In determining whether the percentage paid for wage replacement favors the EIB plan or the TAFW plan, it is neces- sary to examine Hitchcox’s analyses. He found that on April 7, 161 employees at the hospitals had no EIB balance, and would be entitled to no wage replacement under EIB, 303 employees had up to 2 weeks accrued EIB time, and would be entitled to up to 2 weeks wage replacement under EIB, and 265 employees had between 2 and 6 weeks accrued EIB time and would be entitled to from 2 to 6 weeks wage replacement. All of these employees (if they satisfied the requirements of the TAFW plan) would have been entitled to from 60 to 100 percent of 20 week of wage replacement for each occurrence. On the other hand, the 123 employees who had in excess of 20 weeks ac- crued EIB time, would have been entitled to 100 percent of 20 weeks or more of wage replacement, but only once. Hitchcox’s analyses also found that on April 7, 48 percent of the employ- ees had been employed at the Hospitals for 5 years or less and therefore would receive 60-percent wage replacement, 24 per- cent had been employed from 5 to 10 years and would receive 80-percent wage replacement, and the 28 percent of the em- ployees who had been employed in excess of 10 years would receive 100-percent wage replacement. Finally, he found that for the 1-year period subsequent to the change the actual TAFW benefits paid for the Hospitals was $683,000, while he projected that for that same period of time the EIB benefits would have been $667,000. Hitchcox’s testimony was the most influential at the hearing because of his analyses and comparisons between the plans; he has been an actuary for 34 years and is not employed by any of the hospitals. In other words, I can see no reason why I should disregard, or minimize, his findings. Although, as stated above, some EIB terms are more beneficial to the employees than the TAFW terms, absent Hitchcox’s findings it is difficult to de- termine overall which is better for the employees. Although his analyses did not factor in a number of situations, such as the fact that under TAFW, employees do not accrue PTO hours while receiving these benefits and that employees might expe- rience a delay in payments, and would be inconvenienced, as the hospitals no longer administer the plan, his findings clearly establish that, overall, the TAFW plan is slightly better for the employees than the EIB plan. This is set forth in the “bottom line,” where he found that in its first year of operation, the hos- pitals paid slightly more for TAFW than he projected they would have paid for the EIB plans. Further, the standard set forth in article 38 of the contracts requires that the change result in “a material and substantial decrease in the overall plan bene- fit,” while the record herein establishes that there was a slight increase in the overall plan benefit. I therefore find that pursu- ant to the terms of article 38, section 6 of the contracts, the Union waived the right to bargain about this change, and I therefore recommend that the consolidated complaint be dis- missed.6 CONCLUSIONS OF LAW 1. Each of the Respondents has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and has been a healthcare institution within the mean- ing of Section 2(14) of the Act. 2. The Union has been a labor organization within the mean- ing of Section 2(5) of the Act. 3. The Respondents did not violate Section 8(a)(5) and (1) of the Act as alleged in the consolidated complaint. On these findings of fact, conclusions of law and based on the entire record, I issue the following recommended77 ORDER It is recommended that the consolidated complaint be dis- missed in its entirety. 6 Having found that the Respondents lawfully substituted the TAFW plan for the EIB plan on April 7, it is unnecessary to consider the 8(d) allegation herein. 7 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.