STEWARD HEALTH CARE SYSTEM, INC.

372 NLRB No. 63 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Steward Health Care System, LLC and Area Trades Council. Case 01–CA–287904 March 13, 2023 DECISION AND ORDER BY CHAIRMAN MCFERRAN AND MEMBERS WILCOX AND PROUTY The General Counsel seeks a default judgment in this case pursuant to the terms of an informal settlement agree- ment. The Area Trades Council (the Union) filed a charge and an amended charge on December 20, 2021, and May 5, 2022, respectively, alleging that Steward Health Care (the Respondent) violated Section 8(a)(5) and (1) of the Act. The Respondent and the Union subsequently entered into an informal settlement agreement, which the Regional Director for Region 1 approved on June 30, 2022.1 Pur- suant to the terms of the settlement agreement, the Re- spondent agreed, inter alia, to bargain in good faith with the Union for not less than 8 hours per month for at least 2 hours per session at reasonable intervals, meaning at least once every 2 weeks, or pursuant to another schedule mutually agreed upon by the parties, concerning the terms and conditions of employment applicable to the newly- created Chief Engineer bargaining unit position until such time as an agreement or good-faith impasse in bargaining was reached. The Respondent also agreed to sign, date, and immediately post the Notice to Employees in loca- tions where notices to bargaining unit employees are typ- ically posted at Carney Hospital and any adjacent build- ings for 60 consecutive days and distribute the Notice by email to all employees represented by the Union who work at Carney Hospital. The settlement agreement also con- tained the following provision: The Charged Party agrees that in case of non-compli- ance with any of the terms of this Settlement Agreement by the Charged Party, and after 14 days’ notice from the Regional Director of the National Labor Relations Board of such non-compliance without remedy by the Charged Party, the Regional Director will issue a Com- plaint that includes the allegations covered by the Notice to Employees, as identified above in the Scope of Agree- ment section, as well as filing and service of the charge(s), commerce facts necessary to establish Board jurisdiction, labor organization status, appropriate 1 All dates are in 2022, unless otherwise indicated. bargaining unit (if applicable), and any other allegations the General Counsel would ordinarily plead to establish the unfair labor practices. Thereafter, the General Coun- sel may file a Motion for Default Judgment with the Board on the allegations of the Complaint. The Charged Party understands and agrees that all of the allegations of the Complaint will be deemed admitted and that it will have waived its right to file an Answer to such Com- plaint. The only issue that the Charged Party may raise before the Board will be whether it defaulted on the terms of this Settlement Agreement. The General Coun- sel may seek, and the Board may impose, a full remedy for each unfair la bor practice identified in the Notice to Employees. The Board may then, without necessity of trial or any other proceeding, find all allegations of the Complaint to be true and make findings of fact and con- clusions of law consistent with those allegations adverse to the Charged Party on all issues raised by the plead- ings. The Board may then issue an Order providing a full remedy for the violations found as is appropriate to remedy such violations. The parties further agree that a U.S. Court of Appeals Judgment may be entered enforc- ing the Board Order ex parte, after service or attempted service upon Charged Party at the last address provided to the General Counsel. By email dated July 1, the Region’s compliance officer sent the Respondent a copy of the conformed settlement agreement, with a cover letter explaining the remedial ac- tions it was required to take in order to comply. Multiple attempts were then made to secure the Respondent’s com- pliance. By email dated September 2, the Regional Direc- tor notified the Respondent that it must comply with the terms of the settlement agreement within 14 days, or she would issue a complaint that included the allegations set- tled in the agreement. The Respondent failed to comply. Accordingly, pursuant to the uncontroverted terms of the noncompliance provisions of the agreement, on De- cember 15, the Regional Director issued the complaint. That same date, the General Counsel filed a Motion for Default Judgment with the Board requesting that the Board issue a Decision and Order against the Respondent containing findings of fact and conclusions of law based on the allegations in the complaint. On December 20, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Respondent did not file a response. The allegations in the motion are therefore undisputed. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 RULING ON MOTION FOR DEFAULT JUDGMENT According to the uncontroverted allegations in the mo- tion for default judgment, the Respondent has failed to comply with the terms of the settlement agreement. Con- sequently, pursuant to the noncompliance provisions of the settlement agreement set forth above, we find that all of the allegations of the complaint are true.2 Accordingly, we grant the General Counsel’s Motion for Default Judg- ment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a Delaware cor- poration, and with an office and place of business located at 1900 North Pearl Street, Suite 2400, Dallas, Texas, has operated Carney Hospital, a private, for-profit, acute-care hospital located at 2100 Dorchester Avenue, Dorchester, Massachusetts. Annually, in conducting its business op- erations, the Respondent derives gross revenues in excess of $250,000 and purchases and receives at its Dorchester facility goods valued in excess of $5000 directly from out- side the Commonwealth of Massachusetts. We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and is a health care institution within the mean- ing of Section 2(14) of the Act. We further find that the Union is a labor organization within the meaning of Sec- tion 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES At all material times, Rhett Cavicchi held the position of the Respondent’s vice-president of Labor Relations, and Eugene Sullivan held the position of the Respondent’s Deputy General Counsel. These individuals have been su- pervisors of the Respondent within the meaning of Section 2(11) of the Act, and agents of the Respondent within the meaning of Section 2(13) of the Act. The following employees of the Respondent (the unit) constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. All full-time, regular part-time, and per diem skilled trades employees, including electricians, communications techs, bio-medical techs, painters, plumbers, carpenters, operating engineers, maintenance mechanics, 2nd class engineers, 3rd class engineers, and licensed firemen employed by Carney Hospital at its facilities located at 2100 Dorchester Avenue, Dorchester, Massachusetts and any adjacent Carney Hospital buildings (excluding Laboure College), but 2 See U-Bee, Ltd., 315 NLRB 667 (1994). excluding all other employees, managers, confidential employees, guards and supervisors as defned in the Act. At all material times, the Respondent has recognized the Union as the exclusive collective-bargaining representa- tive of the unit. This recognition has been embodied in successive collective-bargaining agreements, the most re- cent of which is effective from January 1, 2021, through December 31, 2025. At all material times, based on Section 9(a) of the Act, the Union has been the exclusive collective-bargaining representative of the unit. About September 29, 2021, without the Union’s knowledge, the Respondent offered employee David Rounseville the newly created position of chief engineer commencing on October 12, 2021, with an annualized sal- ary of $110,000. About October 22, 2021, the Union learned about the position and about the Respondent’s September 29, 2021 job offer to Rounseville. About October 26, 2021, the Respondent, by Cavicchi, acknowledged that the position was a unit position and that the parties would have to bargain over it. That same date, the Union demanded that the Respondent bargain over the terms and conditions of employment applicable to that position. About February 3 and 23, 2022, the Respondent, by Cavicchi and Sullivan, met with the Union by videocon- ference to bargain over the terms and conditions of em- ployment applicable to the position but failed to reach agreement. Since about February 23 and continuing to date, the Re- spondent has failed and refused to meet and bargain in good faith with the Union concerning the terms and con- ditions of employment applicable to the position. CONCLUSION OF LAW By the conduct described above, the Respondent has been failing and refusing to recognize and bargain collec- tively and in good faith with the exclusive collective-bar- gaining representative of its employees in violation of Section 8(a)(5) and (1) of the Act. The unfair labor prac- tices of the Respondent described above affect commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, we shall order it to take certain affirmative actions designed to effectuate the policies of the Act. Specifically, as requested in the complaint, we shall order the Respondent to comply with the unmet STEWARD HEALTH CARE SYSTEM, LLC 3 terms of the settlement agreement approved by the Re- gional Director for Region 1 on June 30, 2022. Accordingly, we shall order the Respondent, upon re- quest by the Union, to make its representatives available to meet and bargain at reasonable times and in good faith with the Union not less than 8 hours per month for at least 2 hours per session at reasonable intervals, meaning at least once every 2 weeks or pursuant to another schedule mutually agreed upon by the parties, concerning the terms and conditions of employment applicable to the Chief En- gineer position, until such time as an agreement or good- faith impasse in bargaining is reached. In addition, we shall order the Respondent, upon request by the Union, to rescind any and all changes to employees’ terms and conditions of employment that it made without first bargaining with the Union. ORDER The National Labor Relations Board orders that the Re- spondent, Steward Health Care System, LLC, Dorchester, Massachusetts, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Failing and refusing, upon request, to meet and bar- gain in good faith with the Union as the exclusive collec- tive-bargaining representative of the unit employees. (b) Failing and refusing to meet and bargain in good faith with the Union regarding any proposed changes in wages, hours, and working conditions before putting such changes into effect. (c) Unilaterally creating and filling bargaining unit po- sitions and setting terms and conditions of employment for any new bargaining unit position. (d) 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 actions. (a) Upon request by the Union, make its representative available to meet and bargain at reasonable times and in good faith with the Union not less than 8 hours per month for at least 2 hours per session at reasonable intervals, meaning at least once every 2 weeks, or pursuant to an- other schedule mutually agreed upon by the parties, 3 If the facilities involved in these proceedings are open and staffed by a substantial complement of employees, the notice must be posted within 14 days after service by the Region. If the facilities involved in these proceedings are closed or not staffed by a substantial complement of employees due to the Coronavirus Disease 2019 (COVID-19) pan- demic, the notice must be posted within 14 days after the facilities reopen and a substantial complement of employees have returned to work. If, while closed or not staffed by a substantial complement of employees due to the pandemic, the Respondent is communicating with its employ- ees by electronic means, the notice must also be posted by such electronic concerning the terms and conditions of employment appli- cable to the Chief Engineer position, until such time as an agreement or good-faith impasse in bargaining is reached. (b) Upon request by the Union, rescind any and all changes to employees’ terms and conditions of employ- ment that it made without first bargaining with the Union. (c) Within 14 days after service by the Region, post at Carney Hospital, Dorchester, Massachusetts, and any ad- jacent Carney Hospital buildings, copies of the attached notice marked “Appendix.”3 Copies of the notice, on forms provided by the Regional Director for Region 1, af- ter being signed by the Respondent’s authorized repre- sentative, shall be posted by the Respondent and main- tained for 60 consecutive days in conspicuous places, in- cluding all places where notices to employees are custom- arily posted. In addition to physical posting of paper no- tices, notices shall be distributed by email to all unit em- ployees. They shall also be distributed electronically, such as by posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with its employees by such means. The Respondent shall take reasonable steps to ensure that the notices are not altered, defaced, or covered by any other material. If the Respondent has gone out of business or closed the facility involved in these proceedings, the Re- spondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former em- ployees employed by the Respondent at any time since February 23, 2023. (d) Within 21 days after service by the Region, file with the Regional Director for Region 1 a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to com- ply. Dated, Washington, D.C. March 13, 2023. ______________________________________ Lauren McFerran, Chairman ________________________________________ Gwynne A. Wilcox, Member means within 14 days after service by the Region. If the notice to be physically posted was posted electronically more than 60 days before physical posting of the notice, the notice shall state at the bottom that “This notice is the same notice previously [sent or posted] electronically on [date].” 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 National Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 ________________________________________ David M. Prouty, Member (SEAL) NATIONAL LABOR RELATIONS BOARD 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 vi- olated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected ac- tivities. WE WILL NOT interfere with, restrain, or coerce you in the exercise of the above rights. WE WILL NOT, upon request, refuse to bargain in good faith with the Area Trades Council as the exclusive col- lective-bargaining representative of our employees in the following appropriate unit: All full-time, regular part-time, and per diem skilled trades employees, including electricians, communications techs, bio-medical techs, painters, plumbers, carpenters, operating engineers, maintenance mechanics, 2nd class engineers, 3rd class engineers, and licensed firemen employed by Carney Hospital at its facilities located at 2100 Dorchester Avenue, Dorchester, Massachusetts and any adjacent Carney Hospital buildings (excluding Laboure College), but excluding all other employees, managers, confidential employees, guards and supervisors as defined in the Act. WE WILL NOT unilaterally create and fill new bargain- ing unit positions and WE WILL NOT unilaterally set terms and conditions of employment for any new bar- gaining unit positions. WE WILL NOT refuse to meet and bargain in good faith with the Area Trades Council regarding any proposed changes in wages, hours, and working conditions before putting such changes in effect. WE WILL NOT in any like or related manner interfere with your rights under Section 7 of the Act. WE WILL, upon request, make our representatives available at reasonable times and WE WILL bargain in good faith with the Area Trades Council as the exclu- sive collective-bargaining representative of our bar- gaining unit employees. WE WILL, if requested by the Area Trades Council, rescind any and all changes to your terms and conditions of employment that we made without bargaining with the Union. STEWARD HEALTH CARE SYSTEM, LLC The Board’s decision can be found at https://www.nlrb.gov/case/01-CA-287904 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.