Deaconess Medical Center

National Labor Relations Board - Board Decisions

Jul 29, 1994

314 N.L.R.B. 677 (N.L.R.B. 1994)

677
314 NLRB No. 110
DEACONESS MEDICAL CENTER
1 The Respondent argues that the Board should reverse the judge
and find that the accretion of the Cowley Street skilled maintenance
employees into the larger skilled maintenance unit located at the
Fifth Street facility took place after the two facilities merged, based
on what it contends was an overwhelming community of interest be-
tween the two employee groups. It appears to base its argument in
part on the fact that the two groups shared the same wage and ben-
efit structure after the merger. The Respondent’s argument begs the
question. The employees shared the same wage and benefit structure
only because the Respondent has refused to bargain with the union
representing the maintenance employees and unilaterally imposed on
those employees the terms of its collective-bargaining agreement
(with another union) that covered the Fifth Street employees.
The Respondent further contends that the judge failed to give ade-
quate weight in his assessment of its accretion defense to the perma-
nent transfer of one of eight skilled maintenance employees at Cow-
ley to Fifth Street. We disagree. The judge appropriately deemed
‘‘negligible’’ the Respondent’s proof of all skilled maintenance em-
ployee interchange, both permanent and temporary, between the two
facilities in the months following the Respondent’s takeover of the
Cowley facility. We note that permanent transfers are generally a
less significant indication of actual interchange than temporary trans-
fers. See Red Lobster, 300 NLRB 908, 911 (1990). In reaching our
conclusion regarding the interchange factor, however, we have
placed no reliance on the judge’s conclusion that the Respondent’s
use of two Cowley Street engineers at the Fifth Street location was
‘‘artificial’’ interchange in the sense that ‘‘it merely balanced cost
controls’’ between the two facilities.
1 Certain errors in the transcript are noted and corrected.
2 All dates are from October 1992 through September 1993, unless
otherwise indicated.
Empire Health Centers Group d/b/a Deaconess
Medical Center and International Union of Op-
erating Engineers, Local 280. Case 19–CA–
22501
July 29, 1994
DECISION AND ORDER
CHAIRMAN GOULD AND MEMBERS STEPHENS AND
DEVANEY
On January 20, 1994, Administrative Law Judge
David G. Heilbrun issued the attached decision. The
Respondent filed exceptions and a supporting brief.
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 brief and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions,1 and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Empire Health Centers
Group d/b/a Deaconess Medical Center, Spokane,
Washington, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order.
George I. Hamano, Esq., for the General Counsel.
Kenneth E. Jernstedt, Esq. (Bullard, Korshoj, Smith &
Jernstedt), of Portland, Oregon, for the Respondent.
DECISION
STATEMENT OF THE CASE
DAVID G. HEILBRUN, Administrative Law Judge. This case
was tried in Spokane, Washington, on October 5, 1993. The
charge was filed January 25, 1993, by International Union of
Operating Engineers, Local 280 (the Union), and the com-
plaint was issued March 11, 1993. The primary issue is
whether Empire Health Centers Group d/b/a Deaconess Med-
ical Center (Respondent) has since about December 31,
1992, failed and refused to recognize or bargain with the
Union as exclusive collective-bargaining representative of
employees in a skilled maintenance unit, in violation of Sec-
tion 8(a)(1) and (5) of the National Labor Relations Act.
On the entire record,1 including my observation of the de-
meanor of witnesses, and after considering briefs filed by the
General Counsel and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a domestic corporation with an office and
place of business at Spokane, Washington, where it is en-
gaged in operating an acute care hospital and having annual
gross sales of goods and services in excess of $500,000. In
the course of such business operations it annually sells and
ships goods or services in excess of $50,000 from State of
Washington facilities directly to customers outside that State,
or to customers within Washington which themselves engage
in interstate commerce other than by indirect means as de-
fined by the National Labor Relations Board. Siemons Mail-
ing Service, 122 NLRB 81 (1958). In the same course of
business operations it annually purchases and receives goods
and materials in excess of $50,000 directly from sources out-
side Washington or from suppliers within Washington which
in turn had obtained them directly from outside that State.
On these admitted facts, I find Respondent is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act and a health care institution within
the meaning of Section 2(14), and, as is also admitted, that
the Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Case Summary
A health care alliance at Spokane had included traditional
hospitals named Deaconess Medical Center and its smaller
nearby counterpart St. Luke’s Memorial Hospital. Both insti-
tutions employed their own unionized group of licensed engi-
neers and related occupations. After St. Luke’s Memorial
Hospital (SLMH) became chronically unprofitable Deaconess
Medical Center (DMC) absorbed it in early 19932 to be a re-
habilitation facility only. The skilled maintenance employees
of SLMH were rehired into DMC without a break in service
or essential change in work location, however, their union
was denied further recognition after the takeover.
678 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
B. General Facts
Prior to events of this case the entity Empire Health Serv-
ices (EHS) existed as a not-for-profit holding company of af-
filiates. One of these affiliates is Empire Health Centers
Group (EHCG) that had been comprised of several Spokane
area hospitals, health care centers, or separately organized
supporting operations. DMC was the largest such division as
a 372-bed acute care hospital. SLMH was a considerably
smaller acute care hospital located less than a mile from
DMC. Both institutions had existed for about a century as
hospitals of the Spokane community.
DMC had a long collective-bargaining relationship with
the Spokane Medical Engineers Association (SMEA) for a
unit of skilled maintenance employees. A current labor
agreement effective from March 1, 1992, through March 1,
1994, exists between these parties, in which the unit descrip-
tion includes operating engineers, painters, groundskeepers,
biomedical technicians, and other job titles along with the
principal maintenance classification. DMC employed a total
of approximately 38 persons for these unionized functions.
The group was organized under Thomas Linhart, assistant
vice president of support services and the person directly re-
sponsible for physical plant integrity at DMC.
A comparable long-term collective-bargaining relationship
also existed for a generally similar unit between SLMH and
the Union. The last contract between these parties was one
of a 3-year term expiring December 31. Here, about eight in-
dividuals were employed in the unit, with only engineer,
general maintenance, and fireman as formally listed classi-
fications. The support function represented by this bargaining
unit was organizationally under Edward Vivier, long-service
vice president of environmental services. Within the unit
itself Fred Russell (Russ) Bailey was responsible as the chief
engineer for day-to-day achieving needed maintenance, per-
forming physical repairs, and related scheduling of employ-
ees.
Late in 1992 the prospect of a fundamental change at
SLMH began taking shape. This was first reflected insofar
as the case record is concerned with a letter dated September
2, 1992, from Chief Operating Officer Patricia Thompson to
Union Vice President and Business Representative Jim
Hendry. This first letter was a mere informational ‘‘update’’;
however, Thompson wrote to Hendry again on October 6
stating that the governing board of directors had just ap-
proved expansion of SLMH’s rehabilitation program with the
likelihood of a further ‘‘revised focus’’ away from acute
care. The letter closed with advice that management was al-
ready working on ‘‘transition issues.’’
When Thompson wrote to Hendry again by letter dated
October 20 and hand delivered, it was to advise that
timelines had been approved for ‘‘the closure of St. Luke’s
as an acute care hospital’’ by January 1. Her letter envi-
sioned transition to a 30-bed inpatient rehabilitation unit, and
renovation of the physical plant as appropriate to support a
‘‘new focus of rehabilitation services.’’ Finally, the letter ad-
dressed special features of employment during the imminent
2-month time of transition, this including severance benefits,
retention payments, sick leave bonus adjustment, and out-
placement services.
Another communication followed immediately on October
21 from Thompson to all employees as a special memo-
randum. Here, the imminent changes were plainly termed
‘‘from acute care to rehabilitation services,’’ and advice
added that many persons would have yet undefined job op-
portunities elsewhere within the overall EHS system. This
communication expressly stated that both the Union and
Washington State Nurses Association (WSNA), as bargaining
representative for registered nurses, had been furnished the
proposed severance program for comment.
Events proceeded with increasing intensity as specific clo-
sure timelines were established in December for ending inpa-
tient, surgical, emergency room, and related services of an
acute care hospital. By communication to all employees
dated December 4, Respondent provided ‘‘letter of interest’’
forms which constituted an application for employment at the
refocused facility eventually to be known as Deaconess Re-
habilitation Institute (DRI). All eight individuals of the
Union’s bargaining unit, each of whom, except Bailey, had
been listed as a first-class engineer, responded to this pros-
pect, and ultimately each of them was hired into what Re-
spondent considered an expanded coverage of the SMEA
contract. Certain variations were applied to the hiring classi-
fication of these former SLMH engineers, and early January
letters of job confirmation also included two other individ-
uals added as groundskeepers.
As transitional happenings took place, Hendry opened con-
tract negotiations by letter, with himself and Bailey as bar-
gaining representatives of the Union and an objective being
that a protective successor clause be achieved with Respond-
ent before the year ended. Hendry testified, with corrobora-
tion from Bailey, that in a negotiation meeting held on No-
vember 24 both EHS Vice President for Human Resources
James Arnold and then Personnel Director at SLMH Carrol
Lee had led the Union to believe proposed operational re-
forms on January 1 would only be a ‘‘name change.’’ In tes-
timony relating to this meeting, Arnold denied saying that
the longstanding bargaining relationship between SLMH and
the Union would survive this planned closure.
With these progressive revelations being made about how
SLMH was about to be changed as of yearend, the Union’s
Richland, Washington-based business manager, Donald
Bushey, wrote to Arnold on December 23 to claim bar-
gaining rights as to any successor employer of persons with-
in the long-existing bargaining unit. Arnold answered this
letter on December 31, stating in his response to Bushey that
by the ‘‘disappearance’’ of SLMH, its former skilled mainte-
nance employees, to the extent they accept work at DMC’s
‘‘relocate[d]’’ rehabilitation services, would be employed
under the SMEA contract and part of that bargaining rela-
tionship. This position amounted to Respondent’s refusal to
recognize the Union subsequent to the imminent change. The
parties did meet on January 6, however, in unsuccessful ne-
gotiations for a settlement agreement comparable to the one
reached between SLMH and the WSNA.
As to these various dynamics, Arnold testified that they
amounted to activities going on simultaneously in three dis-
tinct regards. He identified the first of these as the closing
of SLMH as an acute care facility, and the second of them
as the associated opening of an expanded rehabilitation cen-
ter. In this second regard, an extensive undertaking began in
which surgical, acute care, and laboratory equipment was re-
tired from the SLMH premises as expanded rehabilitation ca-
pacity took its place during renovations. The third main ac-
tivity of simultaneous effect was a spread out ‘‘general re-
679DEACONESS MEDICAL CENTER
structuring of the organization’’ as administrative and non-
clerical services shrank from what had been necessary prior
to the change. Here, personnel changes were made in middle
management of the emerged DRI; however, as pertinent to
issues of this case, the more important details concern what
instances of employee interchange occurred after official es-
tablishment of DRI on January 1.
For the first several months of 1993 daily work patterns
of the now DRI-based skilled maintenance employees re-
mained the same as they had been for years up to that time.
Furthermore, and with minor exception, the employees of
DMC’s larger SMEA-represented bargaining unit continued
in the performance of their customary duties only at that lo-
cation. The minor exception occurred on January 29, when
6 hours of signmaker labor was performed for the DRI prem-
ises by an employee of DMC. In testimony about early in-
stances of employee interchange between the two locations,
Linhart identified the January 29 undertaking as maintenance
work for an administrative area of DRI. He also testified that
engineers routinely stationed at DMC had performed
locksmithing, and work was done on the fire alarm system,
in both cases referring to physical features at DRI. However,
the plant operations usage reports for 1993 do not specifi-
cally show entries to this effect. The instance of fire alarm
work was filled in by testimony of Linhart, who asserted that
DMC employee Robert Clayton spent approximately 18
hours on the project during August.
As the year progressed, additional and more extensive in-
stances of cross-exchange occurred by employees of the two
locations. As to those from DMC actually working at DRI,
Linhart testified the usage reports were 80 percent represent-
ative of such work when recording time spent by engineers
and carpenters and for repairs. This record showed 6 hours’
time by engineers in June, 10 hours by this classification in
September along with 41 by carpenters and 3 by repairmen,
and 160 hours by engineers on October 1, 1993, along with
15 by carpenters and 20 by repairmen. This recapitulation is
exclusive of biomedical personnel showing as having func-
tioned at DRI after January 1. Such individuals, skilled in ad-
justment and repair to sophisticated electronic and patient-
sensitive equipment of a hospital, had always worked at DRI
and other facilities of EHS as needed at particular times.
As to opposite direction movement of personnel, Linhart
testified that, during July, engineer Frank Martin worked for
up to 2 weeks at DMC, that engineer Daryl Brookins worked
with DMC groundskeepers for about 3 days in July, and that
Bailey attended a 3-hour meeting at DMC where he served
as a computer trainer for maintenance applications. Martin
was subsequently transferred in August on an indefinite basis
to be a DMC-located employee; however, Linhart could not
deny that Martin has continued to report his hours worked
through Bailey as part of DRI timekeeping.
C. Discussion
NLRB v. Burns Security Services, 406 U.S. 272 (1972),
held that in cases where a successor employer continues
former operations with a majority of its predecessor’s em-
ployees it must recognize the labor organization which rep-
resented them. This decision assumes the bargaining unit is
fundamentally appropriate and has remained unchanged as
factors in the determination.
The substantially comparable continuity in acquired oper-
ations results in a legal showing of successorship when the
business of both employers is the same, employees continue
in their same jobs and working conditions under the same su-
pervisors, and the new entity basically has the same body of
customers. Fall River Dyeing Corp. v. NLRB, 482 U.S. 27
(1987). Here, the State of Washington’s view that former
SLMH has merged into the hospital license of DMC supports
finding the transaction a continuation of operations by a suc-
cessor employer. I note further that DMC itself has always
maintained rehabilitation services, and the expansion into a
facility not far away with merged management controls
places DMC in the legal status of successor to SLMH for
labor law purposes.
This belief takes into account that a change in the nature
of SMLH was rendered. As a reality of institutional health
care the facility serves rehabilitation needs of patients and
not those associated to traditional hospital activity such as
surgery and room stays. It is more significant, however, that
an important facet of health care is still the service offered,
and as to this the employees at issue perform the same work
an estimated 95 percent of the time. By continuing its iden-
tity as a health care facility, retaining Thompson to run it
until about September and having Arnold as a person car-
rying out labor relations functions at SLMH even before the
change, a sufficient number of factors are present to hold
that successorship has been the consequence here.
A second factor in doctrine traceable from Fall River Dye-
ing Corp. is whether employees continue working much the
same as before a change and under the same supervisors. In
the small group that this case concerns, a focus is drawn to
Bailey as the person actually directing daily maintenance op-
erations for a considerable number of years prior to January
1. It is uncontradicted that he possessed and fulfilled a re-
sponsibility for continuous maintenance and steam plant op-
erations at SLMH, and personally coordinated the staffing
necessary to such fulfillment. I do not believe the nature of
supervision applicable to this aspect of a successorship issue
requires that the individual in focus must be within the statu-
tory definition of Section 2(11). Rather it would seem suffi-
cient that in every practical sense it is instead merely that
person looked to for leadership and endowed with it by the
organization. I recognize that Vivier was phased out of his
former position by May, when Linhart assumed the enlarged
responsibilities of support services for both locations. The
fact that Bailey himself now reports to a different official,
however, does not carry any meaningful effect on employees
of the bargaining unit as to which the issue of successorship
pertains. For this reason, I am persuaded that the group con-
tinuing in their traditional work at DRI are also functioning
under the same supervisor as before.
Case law also speaks of a ‘‘same body of customers’’ as
an element to consider in successorship. While this phrasing
intimates general commercial relationships, it has sufficient
meaning for the health care industry to signify patients or
those comparably in need of medical attention. However, this
meaning also seems broad enough to include the pure reha-
bilitation candidates to be treated under DRI’s exclusive pro-
grams. Furthermore, Arnold termed the creation of DRI as an
‘‘expan[sion]’’ of rehabilitation services as always collat-
erally available at DMC, and that cross-usage of rehabilita-
tion facilities occurred as with water therapy at a pool only
680 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
existing at DMC but availed of by DRI patients after trans-
portation on a van provided to shuttle between locations. On
this basis, I believe that a comparable body of customers is
present as between the two facilities in a way that supports
the conclusion of successorship having occurred between
DMC and DRI.
A defense to the allegation of a successor obligation is that
an insufficient continuity has been shown upon comparing
operations of the predecessor with those of the claimed suc-
cessor. In Morton Development Corp., 299 NLRB 649
(1990), an intermediate care facility for mentally retarded
adults, at which a certified bargaining unit of service and
maintenance employees existed, was briefly closed for finan-
cial reasons. It then reopened as a skilled nursing home, and
the resultant issue of the case was whether there was legal
justification in refusing to continue recognizing the labor or-
ganization representing this bargaining unit. The Board held
that operational differences in services, patients, programs,
and other activities were not significantly different so as to
relieve that employer of its bargaining obligation.
The rationale was specifically associated to considering a
work perspective of the unit employees. The differences were
only in degree, not in kind, with maintenance employees
‘‘encounter[ing] fewer problems with equipment and fewer
that are damaged by residents.’’ The Board’s fundamental
conclusion in Morton Development, supra, also survived its
finding that extensive physical renovations were made, and
equipment sales and purchases were made as a reflection of
what was needed for mentally retarded patients compared to
those in a geriatric category. The rationale has ample appli-
cation here, where skilled maintenance employees of DRI
continued to ply their fundamental tasks in a health care
building given over to recovery from bodily injury or defect.
Thus, I believe the business alterations undertaken by Re-
spondent, and large expenditures anticipated in the near fu-
ture, are not of a significance that would permit the dis-
continuance of recognition to the Union. Cf. Petoskey Geri-
atric Village, 295 NLRB 800 (1989).
This conclusion is further supported by Capitol Steel Co.,
299 NLRB 484, 489 (1990), where the Board held that if the
physical place of business remains the same after a hiatus in
operations a work force reduction coupled with equipment
changes necessitating additional tasks to the variety formerly
performed do not break an underlying link between the old
and new enterprises. A useful analogy is present from Cap-
itol Steel in comparing it to the change of 100-bed SLMH
to a lesser 30-bed rehabilitation center, but with the skilled
maintenance employees continuing to provide basic high-
pressure steam heat services to the building, as well as re-
quired work on utilities, health care equipment, and general
accessories of the facility.
In analyzing supplemental elements of a successorship
issue, a technical question is whether a valid demand for bar-
gaining has been made. The Board has observed that a bar-
gaining obligation where successorship is present does not
automatically follow. It is instead only a potential obligation,
one that must be triggered by a valid demand for recognition
and bargaining. Royal Midtown Chrysler Plymouth, 296
NLRB 1039 (1989). A premature demand shall be valid
where it is reasonably viewed as ‘‘continuing,’’ and thus ef-
fective with the occurrence of a successorship. Royal Mid-
town Chrysler Plymouth, supra at 1040. Here, Bushey’s writ-
ten demand expressly contemplated that Respondent was
about to become a ‘‘successor organization’’ and, under ‘‘the
circumstances presented,’’ made it legally obligated to recog-
nize the Union. This demand letter could hardly have made
more plain that a blanket claim of representation rights was
being made by the Union in terms of an imminent oper-
ational change. I am satisfied from this clarity, and the de-
tailed written rebuttal made by Arnold on the day before a
takeover was to happen, that the Union adequately perfected
its valid demand for recognition and bargaining. I do not rely
on claimed remarks made by Respondent’s management per-
sonnel during a sterile course of bargaining in late Novem-
ber, instead only the clear effect of the later demand for rec-
ognition and its rejection.
Respondent argues earnestly as a second principal conten-
tion that involved persons represented by the Union have
been accreted to the also long-existing SMEA bargaining
unit of skilled maintenance employees at DMC. Here, a
threshold doctrine applies under which it is rebuttably pre-
sumed that a new facility’s unit is separately appropriate for
bargaining. When this presumption is not overcome by an
analysis of circumstances present, the Board uses a simple
fact-based majority test, present here, to determine a bar-
gaining obligation. Conversely, when the presumption is
overcome, the employees at issue will be accreted to an ex-
isting bargaining unit. Determination of whether the pre-
sumption survives, turns on factors of central control over
daily operation and labor relations, similarity of skills, func-
tions, and working conditions, degree of employee inter-
change, distance between locations, and bargaining history.
Mercy Health Services North, 311 NLRB 367 (1993).
Several of these factors are relatively straightforward of
evaluation. DMC is now the sole focal point of executive
business control and implementation of labor relations poli-
cies. The similarities of skill, function, and working condi-
tions are also clearly evident, influenced mostly by the more
elaborate makeup of the larger DMC group. Geographic sep-
aration is relatively slight, however, I am not impressed that
a shuttle van operates between the two facilities for, as Re-
spondent notes in its brief, this is used mostly by patients
and doctors. The bargaining history of the situation creates
a strong bias against accretion, as the Union was solidly es-
tablished as representative of the SLMH group for a goodly
number of years. Setting apart the factors of employee inter-
change briefly, the Mercy Health Services case shows how
significantly the Board treats bargaining history. Other fac-
tors are in my view, however, most influential toward a con-
clusion that the former SLMH group has not accreted into
DMC.
In Gitano Distribution Center, 308 NLRB 1172 (1992),
the Board emphasized a ‘‘restrictive policy’’ in finding ac-
cretion to have occurred, because of its reluctance on policy
grounds of ‘‘depriv[ing] employees of their basic right to se-
lect their own bargaining representative.’’ This approach al-
lows finding a valid accretion only when the employee group
in question has little or no separate identification and, con-
versely, shows a considerable community of interest with the
preexisting unit to which it is purportedly accreted. Gitano
further held that a high degree of employee interchange and
the presence of common day-to-day supervision between
groups were both factors that, where present, would tend to
support a finding of accretion.
681DEACONESS MEDICAL CENTER
3 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
There is little community of interest between these two
skilled maintenance groups operating about a mile apart. The
amount of interchange has been negligible over many months
following the change, and I do not give significant weight
to the fact that an upsurge in interchange occurred only scant
days before the hearing opened in this case. Such an upsurge
is not sufficient to show any pattern developing, and of
greater significance is the fact that Respondent did not even
treat the most extensive instance of interchange-like activity
as part of normal workings. The July utilization of a painter
and repairman at DRI premises was instead, as Linhart testi-
fied, the prelude to a ‘‘trade’’ of personnel, in that DRI engi-
neers Martin and Brookins were specifically sent over to
DMC to compensate for ‘‘offset[ting] the normal working re-
lationship.’’ If a deliberate offsetting of this nature was per-
ceived to be necessary, it shows that Respondent viewed the
deployments as artificial in the sense of merely balancing
cost controls. The factor of interchange as an element of an
accretion contention cannot be artificial, but instead must
represent the ordinary assignment rhythms of a dual location
business. Respondent reveals the vulnerability of its conten-
tion by repeatedly alluding to the ‘‘increasing’’ amount and
regularity of employee interchange at several points in its
brief. However, the evidence on which the case is properly
decided constitutes that which in fact happened during the
significant 6-plus months after the change, and not the sud-
den events of September and very early October 1993 or
speculation as to whether a major change was likely into the
future. For this reason, coupled with lacking a community of
interest between the two groups, exemplified in part by Mar-
tin’s continuing report of time worked to Bailey, it shows
that an accretion of the historical DRI bargaining unit to the
larger SMEA-represented one at DMC has not occurred as
a matter of law. Cf. Children’s Hospital, 312 NLRB 920
(1993).
Finally, Respondent argues that the Board Rules and Reg-
ulations (29 C.F.R. Part 103), establishing appropriate units
in the health care industry, require a finding that the former
bargaining unit at SLMH cannot be perpetuated. The points
made in support of this contention are not persuasive. In
American Hospital Assn. v. NLRB, (1991), the Supreme
Court upheld the Board’s unprecedented rulemaking in this
regard. However, the Court ‘‘deliberately avoided any ex-
tended comment’’ on the Rule, noting that it embodied dis-
cretionary treatment of situations which the Board had envi-
sioned as ‘‘extraordinary circumstances.’’ The Rule itself
also excepted ‘‘existing non-conforming units’’ from its de-
finitive listing as applicable when a representation petition
was filed. Also, the Board’s own commentary in prefacing
its final rule noted the need for a ‘‘fair trial’’ in testing un-
derlying assumptions of the process. 284 NLRB 1580, 1584.
Taken as a whole, these factors convince me that long-exist-
ing notions of successorship doctrine and the accretion prin-
ciple are the source of deciding this case, not the special pur-
pose rulemaking for this industry as principally applicable to
representation petitions of the first instance.
CONCLUSIONS OF LAW
1. The Respondent, Empire Health Centers Group d/b/a
Deaconess Medical Center, is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act and a health care institution within the meaning of Sec-
tion 2(14).
2. The Union, International Union of Operating Engineers,
Local 280, is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. By refusing, on and after December 31, to recognize
and bargain with the Union as exclusive representative of
employees in the appropriate unit, Respondent has violated
Section 8(a)(1) and (5) of the Act.
4. The appropriate unit of skilled maintenance employees
is:
All full-time and part-time engineers and general main-
tenance employees at Respondent’s Cowley Street loca-
tion, excluding office clerical employees, guards, super-
visors as defined in the Act, and all other employees.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
Specifically, I shall order that it cease and desist, bargain
collectively with the Union as exclusive representative of
employees in the appropriate unit and, if an understanding is
reached, embody that understanding in a signed agreement.
Ordinarily under Burns a successor employer is free to set
initial terms and conditions of employment. An exception
arises when the new employer makes ‘‘perfectly clear’’ that
it plans to hire all employees in the unit, for then a broader
legal obligation than merely the duty to recognize and bar-
gain applies. When such an intent is shown the successor
must also consult with the bargaining representative before
fixing initial terms and conditions. Here the rather routine
processing of completed letters of interest from all persons
within the Union’s bargaining unit, and uniform confirmation
of their early January hire, indicates this to have been Re-
spondent’s plan all along. There was no evidence advanced
that outside applications from qualified individuals were so-
licited, nor that particular screening was made of any person
in the SLMH contingent. Accordingly, I believe the consulta-
tion duty applies in theory. The SMEA contract, however, is
known to have generally higher wage rates for the occupa-
tions absorbed, and such compensation levels are not to be
disturbed. Accordingly, the remedial steps to be required of
Respondent shall not be construed as requiring it to vary any
wage, hour, seniority, or other substantive terms of employ-
ment, which it may have established in performance of the
SMEA contract.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended3
ORDER
The Respondent, Empire Health Centers Group d/b/a Dea-
coness Medical Center, Spokane, Washington, its officers,
agents, successors, and assigns, shall
682 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 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
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
International Union of Operating Engineers, Local 280 for all
full-time and part-time skilled maintenance employees at its
Cowley Street location.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of their rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Bargain in good faith with the Union and reduce any
collective-bargaining agreement reached to a written contract.
The appropriate unit for such bargaining obligation is:
All full-time and part-time engineers and general main-
tenance employees at Respondent’s Cowley Street loca-
tion, excluding office clerical employees, guards, super-
visors as defined in the Act, and all other employees.
(b) Post at its facilities in Spokane, Washington, copies of
the attached notice marked ‘‘Appendix.’’4 Copies of the no-
tice, on forms provided by the Regional Director for Region
19, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL, on request, bargain with International Union of
Operating Engineers, Local 280, and put in writing and sign
any agreement reached on terms and conditions of employ-
ment for our employees in the bargaining unit:
All full-time and part-time engineers and general main-
tenance employees at our Cowley Street location, ex-
cluding office clerical employees, guards, supervisors as
defined in the Act, and all other employees.
EMPIRE HEALTH CENTERS GROUP D/B/A DEA-
CONESS MEDICAL CENTER