Gratiot Community Hospital

National Labor Relations Board - Board Decisions

Oct 18, 1993

312 N.L.R.B. 1075 (N.L.R.B. 1993)

1075
312 NLRB No. 160
GRATIOT COMMUNITY HOSPITAL
1 The Respondent’s brief in support of exceptions raises the de-
fense that the issues in this proceeding should be deferred to the par-
ties’ contractual grievance-arbitration procedures. The Respondent
has not previously raised this defense in its answer to the complaint
or in argument before the judge. Accordingly, we find that the defer-
ral issue has not been timely and properly raised at this stage of the
proceeding. See, e.g., Long Island Nursing Home, 297 NLRB 47 fn.
1 (1989).
2 The judge found that some of the nursing supervisors were statu-
tory employees. We do not reach that issue. For, even assuming
arguendo that all the nursing supervisors were statutory supervisors,
the unilateral changes regarding them would nonetheless be unlaw-
ful. In this regard, we note that the parties have agreed to include
all nursing supervisors in the unit, and they were covered by a con-
tract at the time of the changes here. We have held that when parties
to a collective-bargaining relationship, as here, have voluntarily
agreed to include supervisors in a unit, the Board will order the ap-
plication of the terms of the collective-bargaining agreement to those
supervisors. Union Plaza Hotel & Casino, 296 NLRB 918 fn. 4
(1989), enfd. sub nom. E.G. & H. Inc. v. NLRB, 949 F.2d 276 (9th
Cir. 1991), citing Arizona Electric Power Cooperative, 250 NLRB
1132 (1980).
We perceive no basis for departing from this rule here, despite the
contract’s recognition clause which excludes ‘‘supervisors within the
meaning of the National Labor Relations Act.’’ Although the Re-
spondent could not be compelled to recognize the Union as the rep-
resentative of a unit containing supervisors, the Respondent certainly
could, and did, agree to a contract that covered certain individuals
found to be supervisors. NLRB v. News Syndicate Co., 365 U.S. 695,
699 fn. 2 (1961).
In light of the foregoing, we find the changes regarding the nurs-
ing supervisors to be unlawful. In addition, we modify the judge’s
recommended Order to include a make-whole remedy for all ‘‘nurs-
ing supervisors,’’ including those found by the judge to be statutory
supervisors. We note that art. 37 of the contract specifically provides
wage rates for the nursing supervisor classification in the wage and
salary schedule.
Member Raudabaugh does not necessarily agree with those Board
decisions which hold that an employer violates Sec. 8(a)(5) by mak-
ing changes, during the contract, concerning in-unit statutory super-
visors. However, in the instant case, the change had a significant im-
pact on in-unit statutory employees. More particularly, as a con-
sequence of the elimination of the position of nursing supervisor,
statutory supervisors ‘‘bumped’’ and displaced unit employees. In
these circumstances, Member Raudabaugh agrees that the change
was unlawful. He does not reach the question of whether there
would be a violation in the absence of a demonstrable and actual
impact on unit employees.
Gratiot Community Hospital and Gratiot Commu-
nity Hospital Registered Nurses Association.
Case 7–CA–32107
October 18, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On December 14, 1992, Administrative Law Judge
Arline Pacht issued the attached decision. The General
Counsel and the Respondent filed exceptions and
briefs.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs1 and has decided to affirm the judge’s rul-
ings, findings, and conclusions and to adopt the rec-
ommended Order as modified.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent,
Gratiot Community Hospital, Alma, Michigan, its offi-
cers, agents, successors, and assigns, shall take the ac-
tion set forth in the Order as modified.
1. Substitute the following for paragraphs 2(b) and
(c).
‘‘(b) Bargain with the RNA, on request, regarding
its decisions, and the effects of those decisions, to
cease providing surgical scrub uniforms, to eliminate
the nurse supervisor classification, and to eliminate the
7/70 shift program, for employees in the following ap-
propriate unit:
‘‘All full-time and regular part-time Registered
Nurses employed by Respondent, but excluding
irregular part-time nurses, student employees, all
other employees, Health Education Coordinator,
Infection Control Coordinator, the Director of
Nursing, As-
sistant Directors of Nursing, and all other super-
visors within the meaning of the National Labor
Relations Act.
‘‘(c) Make whole those registered nurses who were
directly and indirectly affected, for any loss of earn-
ings and other benefits they may have suffered as a re-
sult of its unlawful conduct in ceasing to supply sur-
gical scrub uniforms, eliminating the Nursing Super-
visor classification, and terminating the 7/70 shift pro-
gram.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to bargain collectively with the
Gratiot Community Hospital Registered Nurses Asso-
ciation as the exclusive bargaining representative for
our employees in the following appropriate unit:
All full-time and regular part-time Registered
Nurses employed by us, but excluding irregular
part-time nurses, student employees, all other em-
ployees, Health Education Coordinator, Infection
Control Coordinator, the Director of Nursing, As-
1076 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Hereinafter counsel will be referred to as the General Counsel.
2 Hereinafter all events took place in 1991, unless otherwise indi-
cated.
3 Exhibits introduced into evidence by the General Counsel will be
cited as G.C. Exh. followed by the exhibit number; the Respondent’s
exhibits will be cited as R. Exh. The transcript will be referred to
as Tr. followed by the appropriate page number.
sistant Directors of Nursing, and all other super-
visors within the meaning of the National Labor
Relations Act.
WE WILL NOT refuse to bargain with the Union
about our decisions, and the effects of those decisions
to (a) discontinue the provision of surgical scrub uni-
forms to registered nurses, (b) eliminate the nurse su-
pervisor classification, (c) terminate the 7/70 shift pro-
gram, and (d) layoff employees affected by the unilat-
eral decisions outlined in clauses (b) and (c) of this
paragraph.
WE WILL NOT coerce employees to meet with mem-
bers of management without the presence of a rep-
resentative of the Union in order to discuss or attempt
to resolve grievances.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WE WILL, on request by the Union, rescind all uni-
lateral changes and reinstate the wages, hours, job clas-
sifications, and other terms and conditions of employ-
ment, including the provision of surgical scrub uni-
forms, that were in effect prior to our taking unlawful,
unilateral action.
WE WILL, on request of the Union, bargain about
our decisions, and the effects of those decisions, to dis-
continue the provision of laundered surgical scrub uni-
forms to registered nurses, to abolish the nursing su-
pervisor classification, and to terminate the 7/70 shift
schedule.
WE WILL make whole all those nurses who were af-
fected directly or indirectly, for any loss of earnings
and other benefits suffered as a result of our unlawful
conduct in unilaterally discontinuing the provision of
laundered scrub uniforms, eliminating the nursing su-
pervisor classification, and terminating the 7/70 shift
schedule.
GRATIOT COMMUNITY HOSPITAL
Richard F. Czubaj, Esq., for the General Counsel.1
Mark D. Nelson, Esq. (Keck, Mahin & Cate), of Chicago, Il-
linois, for the Respondent.
James E. Hayes, Esq., of Mount Pleasant, Michigan, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
ARLINE PACHT, Administrative Law Judge. Based on un-
fair labor practice charges filed by the Gratiot Community
Hospital Registered Nurses Association (the RNA) on July
22, 1991,2 as amended on August 20, a complaint issued on
September 5 alleging that Respondent, Gratiot Community
Hospital, violated Section 8(a)(1) and (5) of the National
Labor Relations Act (the Act). The Respondent filed a timely
answer denying the commission of any unfair labor practices.
At the trial held in this case on February 10 and 11, 1992,
in Alma, Michigan, all parties were afforded full opportunity
to examine and cross-examine witnesses. On the entire
record,3 including my observation of the demeanor of the
witnesses, and with due consideration of the parties’ posttrial
briefs, I make the following
FINDINGS OF FACT
I. JURISDICTION
The complaint alleges and the answer admits that Re-
spondent is and has been at all times material a Michigan
corporation with its office and principal place of business lo-
cated in Alma, Michigan, where it operates an acute health
care hospital. Based on Respondent’s admissions, I find that
Gratiot Community Hospital is now, and has been at all
times material, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
Similarly, I find that the Charging Party, RNA, is and has
been at all times material a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The pleadings in this case give rise to the following issues:
1. Whether Respondent’s vice president of human re-
sources, Dennis Witham, insisted that a unit employee, Linda
Cox, discuss her pending grievance with him without the
presence of a union representative, thereby interfering with
her exercise of Section 7 rights and undermining the status
of the Union.
2. Whether Respondent unilaterally terminated a practice
of providing scrub uniforms to registered nurses without bar-
gaining with the RNA.
3. Whether Respondent unilaterally altered terms and con-
ditions of employment by eliminating nursing supervisor po-
sitions.
4. Whether Respondent unilaterally altered the registered
nurses’ terms and conditions of employment without bargain-
ing with the RNA by terminating a scheduling option re-
ferred to as the 7/70 shift.
B. The Cox Grievance
Since 1967, registered nurses at the Gratiot Community
Hospital have been represented by the RNA and covered by
successive collective-bargaining agreements. The contract in
effect at the time the events in this case occurred was effec-
tive from September 8, 1990, to September 8, 1992.
Pursuant to the terms of the contract, Linda Cox, a reg-
istered nurse assigned to the home care unit, initially lodged
a verbal grievance with her superior, a unit coordinator, pro-
testing the Hospital’s failure to pay her for the costs of driv-
ing between her home office in Alma and a satellite facility
1077GRATIOT COMMUNITY HOSPITAL
in another community, according to longstanding practice.
On July 12, after her first-step grievance was denied, she
filed a written grievance with Respondent’s vice president
for human resources, Dennis Witham. Witham, who was rel-
atively new on the job, asked Cox where the matter was cov-
ered in the contract. She explained that it was a matter of
practice rather than a contractual requirement. Witham as-
sured her that there would be a second-step meeting at which
she could have union representation.
According to Cox, Witham telephoned her on July 15 and
asked her to meet with him to work out a solution to her
grievance. When she told him she would prefer not to meet
unless a union representative accompanied her, he remarked
that there should be a step between the grievance filing and
a second-step meeting with union representation. Cox said
she again declined to meet privately with him, at which point
he repeated two or three times in increasingly loud and in-
sistent tones that they could settle the matter without a union
agent there. Cox then reminded him of his assurance that she
could have a representative with her at a second-step meet-
ing, and flatly said she would not meet him until Hayes, the
Union’s representative, was present.
By letter dated July 22, Hayes wrote to Witham to sched-
ule a step 2 meeting regarding the Cox grievance, or alter-
natively, to delay such a meeting until the unfair labor prac-
tice charge which the Union had filed about the matter was
resolved. Hayes took the opportunity to advise Witham that
Cox had reported both to him and to the RNA executive
committee that she felt ‘‘intimidated and/or bewildered’’ by
his asking her to point out the section of the contract that
had been violated and then telling ‘‘her that it was not nec-
essary to have a representative at the Step Two meeting’’
from which ‘‘she concluded that your reaction to her insist-
ence on representation was negative.’’(R. Exh. 1.)
Witham presented an altogether different version of his
July 15 conversation with Cox. He maintained that he tele-
phoned Cox solely to obtain information about her grievance
since he could find no specific contractual reference for com-
pensating nurses for their traveling time. He stated that he
did not reject her renewed request for union representation;
rather, he purportedly told her that a representative was un-
necessary at that point since he was simply investigating the
underlaying facts so that he could respond to the grievance.
In fact, after this phone conversation, no second-step meet-
ing took place. Instead, the Union filed unfair labor practice
charges on July 22, which inter alia, faulted Witham for in-
sisting that employees participate in second-step grievance
meetings without union representation. Subsequently, Hayes
and Witham met and discussed this and other matters, and
in October, Witham resolved the grievance in Cox’s favor.
C. Respondent’s Alleged Unilateral Acts
1. Respondent reacts to a fiscal crisis
In the spring of 1991, the Hospital determined that it was
sustaining severe financial losses. Deficits of several million
dollars were reported for both 1990 and 1991, and a $3-mil-
lion loss was projected for 1992. Consequently, Respondent
initiated an intensive review of its operations in order to
identify ways in which it could function more economically.
As part of this review process, a ‘‘turnaround’’ task force
was formed whose members included Witham, Vice Presi-
dent of Operations Carol Goffnet, and Director of Nursing
Susan Deland. The task force was directed to develop a re-
covery plan which would be submitted for approval to the
Hospital’s board of directors on August 7. In carrying out its
mission, the turnaround team devised and implemented cost-
saving measures which affected virtually every employee in
the Hospital. However, this case addresses only those unilat-
eral changes which affected the terms and conditions of em-
ployment of registered nurses.
2. Initial meetings between the parties
During a June 26 meeting, management officials informed
the RNA executive committee and the Union’s bargaining
agent, Jim Hayes, about the Hospital’s financial predicament
and the likelihood that layoffs of bargaining unit members
would be necessary.
The parties met again on July 17 at which time Respond-
ent’s acting chief financial officer provided the RNA rep-
resentatives with additional information about the Hospital’s
financial status. The Union also was advised that 23 ‘‘full-
time equivalent’’ registered nurse positions probably would
be eliminated. However, management indicated that if the
Union would forgo the 8-percent wage rate increase due to
be implemented on September 16, the number of layoffs
could be reduced to 11. Respondent then presented the Union
with a written proposal to freeze wages at their current levels
until the contract expired in September 1992.
The parties next met on July 30 at which time the Union
responded to the Respondent’s July 17 proposal by present-
ing a draft which suggested a deferral of the 8-percent pay
raise, to be recaptured at a later time. The RNA also pro-
duced a letter addressed to Respondent’s interim president,
listing 10 cost-cutting ideas such as reducing the number of
vacation days. Witham testified that management concluded
that the RNA suggestions were unacceptable. The parties met
once again on August 5 with many of the Union’s rank-and-
file members present, but nothing was accomplished.
Although the Respondent had presented the Union with fi-
nancial data to support its claims of financial distress, at no
time did any Hospital official divulge the specific rec-
ommendations of the recovery plan until it was adopted by
the board of directors on August 7. Then, on August 8, Re-
spondent made the terms of the plan public for the first time,
posting charts and distributing a letter from the Hospital’s
president to all employees describing the steps to be taken
and even taking some preliminary measures to begin imple-
mentation. Three of the plan’s provisions which directly af-
fected the terms and conditions of employment of the RNA’s
members are discussed below.
3. Respondent abolishes its scrub uniform policy
For many years, Respondent voluntarily purchased and
laundered scrub uniforms for most of the Hospital staff, in-
cluding the registered nurses. However, on July 22, Respond-
ent’s interim president, Gene Miyamoto, issued a report to
the employees announcing that, among other cost-saving
1078 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Respondent stated it would continue to supply scrub suits to per-
sonnel in several departments as required by the Center for Disease
Control.
5 Respondent uses the word acuity to refer to a patient’s ability to
take care of his or her own needs.
6 Radtke indicated that she had the right to discipline employees
through the verbal reprimand stage, but never exercised that author-
ity.
measures, ‘‘the Hospital will no longer furnish surgical scrub
suits’’ to employees in most departments. (R. Exh. 4 at 2.)4
The next day, July 23, Respondent’s vice president of sup-
port services, expanded on the president’s announcement in
a memo distributed to all departments. The memo stated in
pertinent part that:
Effective September 1 . . . the Hospital will no longer
supply employees with surgical scrubs as a replacement
for uniforms. The policy change affects all depart-
ments. . . .
Employees . . . who currently utilize scrubs will have
the option of purchasing the scrubs currently provided,
or purchase appropriate uniforms from outside vendors.
The Hospital will be selling its current supply of
scrubs. . . .
It will be the employees’ responsibility to launder their
own scrubs effective September 1. [G.C. Exh. 3.]
RNA President Glenn King testified that he never was of-
ficially notified by Respondent of its decision to terminate
the scrub policy and did not even see the July 23 memo until
sometime early in August when it was posted on a Hospital
bulletin board. King further maintained that the Union raised
the scrub situation while the executive committee was meet-
ing with management on other matters. He claimed that some
member of management told the Union that the decision re-
garding the scrubs was nonnegotiable. However, both
Witham and Goffnet denied having taken such a position.
4. Respondent eliminates nursing supervisor positions
a. The duties of the nursing supervisor
Another aspect of Respondent’s recovery plan involved re-
organizing the nursing staff. The plan entailed eliminating
the position of nursing supervisor, reassigning persons hold-
ing that title to staff RN positions, merging the functions of
the nursing supervisor and unit coordinator and assigning
them to a new supervisory position titled ‘‘unit managers’’
on the day shift and ‘‘shift managers’’ on the later shifts.
The nursing supervisors had long been regarded as members
of the RNA bargaining unit, and were specifically covered
in the wage and salary schedule set forth in article 37 of the
collective-bargaining agreement. Nevertheless, Respondent
reevaluated their status and concluded that they were super-
visors as defined in the National Labor Relations Act. There-
fore, Respondent believed that it was within its prerogative
to abolish their positions.
Former Nursing Supervisor Patricia Modders, a govern-
ment witness, served as a nursing supervisor for 20 of her
24 years with the Hospital, the last 3 of which were full
time, until her position was abolished on September 1. She
was one of two nursing supervisors on the day shift, with re-
sponsibility for approximately 30 employees in all units of
the nursing department which included registered nurses, li-
censed practical nurses, nurses aides, and ward clerks. In
terms of the chain of command, she reported to a unit coor-
dinator and the director of nursing. Modders estimated that
she spent 50 percent of her time providing direct patient care
when she would relieve other nurses during their break peri-
ods. The balance of her time was devoted to the administra-
tive functions required of a nursing supervisor. In this regard,
she explained that one of her principal duties was to ensure
that a sufficient number of nurses was assigned to each unit,
a task she felt required little independent judgment since a
computer program was in place which calculated what the
staffing levels should be based on estimates of each patient’s
acuity.5 If Modders determined that more or less nurses were
needed in a particular unit than were projected by the com-
puter, she had the authority to increase or decrease the num-
ber of nurses assigned, but would have to prepare a written
justification for doing so. In altering the staffing levels, she
first would seek off-duty volunteers, but if none was avail-
able, she either asked the least senior nurse to work an extra
shift, or transferred nurses from one unit to another based
upon their skills and expertise. She also had the authority to
excuse nurses who needed to leave before their shift ended.
Modders further testified that she had no role in resolving
grievances other than to serve as a conduit, transmitting em-
ployee grievances to the unit coordinator or director of nurs-
ing and relaying their responses to the affected employee. If
instructed to do so by the director of nursing, she would ver-
bally counsel employees, which is the first step in the griev-
ance procedure set forth in the RNA collective-bargaining
agreement. Modders acknowledged that she filled out inci-
dent reports, required when any untoward event occurred,
and submitted them to the unit coordinator. Other than noting
whether she thought the matter involved a serious infraction,
she did not propose that discipline be imposed upon the em-
ployee responsible for the incident. However, RNs also filled
out incident reports which they submitted to the nursing su-
pervisor.
Modders ceased evaluating employees 7 years ago when
the unit coordinator’s position was coordinated. However,
she continued to communicate her views orally to the coordi-
nator as to the nurses’ performance. She did not hire or fire,
nor did she contribute to those decisions. She attended meet-
ings with just the unit coordinator and director of nursing,
but did not participate in other management meetings.
Modders’ description of her duties as a nursing supervisor
were generally confirmed by another registered nurse, Iola
Radtke, who served as a nursing supervisor only 1 day a
week until that position was abolished.6
JoAn LaClair, a nursing supervisor for 14 years prior to
being promoted to the position of nursing manager, offered
a vastly different image of her former position than did
Modders. She estimated that she allocated 75 percent of her
time to administrative duties and only 25 percent to patient
care. Like Modders, she was responsible for staffing deci-
sions, including transferring staff to other units. In making
transfer decisions, LaClair stated that she was obliged to
apply and interpret contractual terms for employees under
other collective-bargaining agreements. She also testified
without controversion that she implemented any discipline
1079GRATIOT COMMUNITY HOSPITAL
7 The recognition clause describes the bargaining unit as
All Full time and regular part time Registered Nurses employed
by Gratiot Community Hospital, but excluding . . . the Director
of Nursing . . . and all other supervisors within the meaning of
the . . . Act. [G.C. Exh. 4 at 1.]
that might be necessary, and occasionally issued written
warnings.
LaClair also was involved in the hiring process. From four
to six times a year, the personnel department scheduled inter-
views for her with applicants who were were seeking posi-
tions on her shift. Subsequently, she forwarded her rec-
ommendations to those who made the final decisions. She
thought that the other nursing supervisors had similar author-
ity if they chose to exercise it. She also participated in deci-
sions to terminate employees. Moreover, at the unit coordina-
tor’s request, she contributed both orally and in writing to
employee evaluations.
Operations Vice President Goffnet confirmed LaClair’s
testimony asserting that nursing supervisors reported to the
director of nursing, had the authority to discipline employees,
contribute to evaluations of probationary employees, and rec-
ommend candidates for employment. However, she conceded
that her direct knowledge of the nursing supervisor’s duties
was based on her former experience as director of nursing
7 years earlier.
b. Respondent allows nursing supervisors to bump into
bargaining unit positions
On August 7, the Hospital’s board of directors approved
the recovery plan developed by the turnaround task force, in-
cluding a proposal to eliminate the nursing supervisor posi-
tions. Witham explained that the task force formulated this
proposal in part to offset the cost of the RNs’ 8-percent
payraise. Further, he acknowledged that it was his interpreta-
tion of the collective-bargaining agreement which led the
task force to conclude that the nursing supervisor was a man-
agement position. Specifically, he relied on two provisions in
the contract: the recognition clause which excludes super-
visors, and article 28, section 3, which accords a managerial
role to the shift supervisor in the first step of the grievance
procedure.7 He recognized that article 37 of the contract in-
cluded an hourly wage rate for nursing supervisors, but of-
fered no explanation for their anomalous inclusion in the
agreement.
On August 8, Witham sent a form letter to all employees
who management believed would be affected by various
planned staffing changes, including the nursing supervisors,
advising them that they would be laid off from their current
positions as of August 31. The letter also informed the re-
cipients that they might be able to exercise their seniority
rights to bump into other positions.
Subsequently, the nursing supervisors received another let-
ter from the director of nursing assuring them they would not
be laid off; instead, they would be permitted to exercise their
seniority rights to bump into a bargaining unit position. Ac-
cordingly, over a 3-day period beginning August 12, man-
agement arranged a series of meetings in which RNs met in
groups of 10 starting with those having accumulated the
most seniority, to select new positions in the bargaining unit.
Witham maintained that in allowing the nursing supervisors
and others to bump into bargaining unit positions, Respond-
ent was complying with article 24 of the labor contract
which provides that ‘‘Any employee who is displaced . . .
may choose to exercise seniority rights insofar as the provi-
sions of this Article allow’’ as long as the employee is
‘‘fully capable of performing all required duties effectively.’’
(G.C. Exh. 4 at 14.) The article then sets forth a schedule
in which the employees with the least seniority are laid off
first.
5. Respondent reduces the 7/70 shift staff to zero
In 1981, as a means of attracting registered nurses to night
shift assignments, the Hospital negotiated with and obtained
the Union’s consent to a new staffing procedure which pro-
vided that each member of a paired team of RNs would work
a full 7-day week for a 10-hour shift from 10 p.m. to 8 a.m.,
while receiving pay for 80 hours, at 1.19 times more than
the regular hourly rate. The experiment began with just one
team of nurses, and although there has been some fluctua-
tion, the number of teams increased steadily. Prior to the
adoption of the recovery plan, there were 13 teams.
As Carol Goffnett pointed out, the parties’ collective-bar-
gaining agreement gave the director of nursing express au-
thority to ‘‘decide the number of assignments and the work
areas that will be under the Seventy Hour Shift’’ (G.C. Exh.
4 at 43). Relying on this language, and without notifying or
conferring with the Union about their proposal, the turn-
around team obtained the board of director’s approval to re-
duce the number of 7/70 teams to zero. The 26 RNs affected
by this reduction were given layoff notices on August 8.
Like the nursing supervisors, they, too, were permitted to
bump into other positions; numerous employees were dis-
placed in the process.
Respondent soon determined that it needed to reinstitute
the 7/70 program and invited bidding for places in two
teams.
III. DISCUSSION AND CONCLUDING FINDINGS
A. Respondent Violated Section 8(a)(1) and (5) in its
Handling of the Cox Grievance
A resolution of the legal issues related to the Cox griev-
ance starts with an evaluation of the witnesses’ credibility.
After carefully scrutinizing the record, I find reason to be-
lieve that Cox rather than Witham offered the more credible
account of their telephone conversation. In reaching this con-
clusion, I rely heavily on the fact that Cox reported her dis-
tressed reaction to Witham’s remarks almost immediately to
Hayes and the executive committee, as the union agent’s July
22 letter to Witham demonstrates. In that letter, Hayes spe-
cifically referred to Cox’s assertion that Witham advised her
she could do without union representation. Yet, Witham
failed to protest or dissent from this accusation until he testi-
fied at the instant hearing. I also was impressed by Cox’s ad-
amant testimony that Witham repeatedly insisted that they
could settle the matter without a union representative present.
Witham’s explanation for his telephone call to Cox also
leaves something to be desired. If he wished to determine
what the contractual basis was for the grievance, Goffnet was
a more authoritative source of information than was Cox.
The next question is whether Witham’s comments to Cox
violated Section 8(a)(5) and (1) of the Act. In badgering Cox
to meet with him alone to settle her grievance, Witham dis-
1080 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
regarded the express terms of the parties’ labor agreement
which provided that a member of the bargaining unit was en-
titled to representation at a step 2 meeting. In so doing,
Witham attempted to bypass the employees’ statutory rep-
resentative. Such conduct unquestionably violates Respond-
ent’s obligations under Section 8(a)(5) of the Act. Heck’s,
Inc., 293 NLRB 1111, 1118–1119 (1989); Weinreb Manage-
ment, 292 NLRB 428, 432 (1989). Indeed, a representative’s
right not to be bypassed in such circumstances is explicitly
protected by the proviso to Section 9(a) of the Act, which
states:
. . . any individual employee or a group of employees
shall have the right at any time to present grievances
to their employer and to have such grievances adjusted,
without the intervention of the bargaining representa-
tive, as long as the adjustment is not inconsistent with
the terms of a collective bargaining agreement then in
effect: Provided further, That the bargaining representa-
tive has been given opportunity to be present at such
adjustment.
Further, by insisting that he and Cox could settle the
grievance without the intervention of a union representative,
Witham conveyed the impression that if she failed to com-
ply, the matter would not be resolved in her favor. Coming
from a high-ranking management official, such behavior is
particularly coercive and violates Section 8(a)(1) of the Act.
Weinreb Management, supra.
B. The Unilateral Termination of the Scrub Practice
was Unlawful
It is undisputed that the Hospital furnished and laundered
surgical scrub uniforms for the RNs free of charge for a
longer period of time than any witnesses at the hearing could
recall. However, the parties never formalized this practice in
their successive collective-bargaining agreements and there is
no evidence that they even raised it in any of their negotia-
tions. Nevertheless, by virtue of long custom, the provision
of scrub uniforms to the RNs became an employment benefit
and, thus, a mandatory subject of bargaining. Owens-Corning
Fiberglass Corp., 282 NLRB 609 (1987).
An employer is not relieved of the duty to bargain in good
faith about revising or eliminating a practice such as the one
at issue here even though it is not embodied as an express
term of its labor agreement. Dearborn Country Club, 298
NLRB 915 (1990), Owens-Corning Fiberglass Corp., supra.
Thus, the Respondent was required to give the Union notice
of its intent to rescind the scrub uniform policy and an op-
portunity to bargain about it.
Here, Respondent contends that the Union had the req-
uisite notice but the RNA waived its right to negotiate about
the matter by failing to request bargaining. Respondent’s
contentions lack merit on several grounds.
First, Respondent failed to notify the Union in a manner
which might suggest that it had an intent to enter into good-
faith bargaining. When the Respondent announced its deci-
sion regarding the scrubs in a July 22 letter to all employees,
it stated that the Hospital ‘‘will no longer furnish surgical
scrub suits. . . . Employees will, however, be able to pur-
chase these at reduced prices. This will result in cost savings
of $13,000.’’ (R. Exh. 4 at 2.) The Respondent’s second
message regarding the changed policy was in a July 23
memo from Respondent’s vice president of support services
to all departments which read: ‘‘the policy regarding hos-
pital-supplied surgical scrubs has changed. Effective Septem-
ber 1 . . . the Hospital will no longer supply employees with
surgical scrubs.’’ (G.C. Exh. 3.)
Neither of these communication suggests that the notice
was of a tentative or preliminary proposal. Rather, each was
a pronouncement of a final and unqualified decision. Even
worse, by directing the letters to the employees and then, to
departments, the Respondent again bypassed the Union, as it
had in the Cox matter, sending a strong signal that the RNA
had no effective role to play in Respondent’s predetermined
process.
Even assuming that the Respondent’s communications to
employees was sufficient to afford the Union indirect notice
of the revised scrub policy, it was not notice which gave the
RNA the opportunity to make a meaningful response. Here,
by announcing its new scrub policy as if the decision was
already cast in stone, and by conveying that decision to the
employees rather than to their certified bargaining representa-
tive, the Respondent exposed its disinterest in genuine bar-
gaining. Given these circumstances, the RNA was not re-
quired to go through the motions of requesting bargaining,
for the Board does not require futile gestures. See Michigan
Ladder Co., 286 NLRB 21 (1987).
Furthermore, I am persuaded that the RNA executive com-
mittee did raise the scrub issue while it was meeting with
management officials about other issues and was told in
some manner that the matter was not open for discussion. It
may be that Witham and Goffnet did not use the precise
term, ‘‘non-negotiable,’’ but rather employed some other ex-
pression which conveyed the same message. I am convinced
that the Union would not neglect to raise this issue while it
was engaged in discussions with the Respondent about other
elements of the recovery plan. If the RNA representatives be-
lieved that the Respondent was willing to bargain about this
matter, surely they would not have added the changed scrub
policy to the other pending unfair labor practice charges as
early as August 20. It also bears noting that Respondent re-
jected without explanation, each of the Union’s proposals re-
garding the reduction of costs and staff. Consequently, there
is no reason to assume that the Hospital treated the Union’s
interest in bargaining about the scrub policy with any greater
consideration.
C. Respondent Unlawfully Eliminated the Nursing
Supervisor Classification
As detailed in the fact statement, Respondent abolished the
position of nursing supervisor as another cost-saving device,
claiming that because the job involved duties which fell
within the statutory definition of supervisor, the Hospital was
absolved of any duty to bargain. The General Counsel argues
that the nursing supervisor’s tasks were of a routine nature
and required little independent judgment; therefore, they
were members of the bargaining unit whose jobs could not
be terminated unilaterally. Alternatively, the General Counsel
submits that even if persons holding the title of nursing su-
pervisor performed certain managerial functions, Respondent
was not permitted to eliminate the classification during the
contract’s term after having treated the position as if it were
within the bargaining unit for over two decades. Thus, the
1081GRATIOT COMMUNITY HOSPITAL
8 The nursing supervisors’ judgments about staffing levels were
subject to review, for they were required to justify in writing any
deviations from the computer projections.
9 Both Modders and LaClair had extensive experience; Modders
had served as a nursing supervisor for 20 years; LaClair for 17.
10 Former Nursing Supervisor LaClair asserted that she was re-
quired to interpret collective-bargaining agreements pertaining to
other bargaining units when making staffing decisions. However,
while such contracts were not offered into evidence, it is fair to as-
sume that transfers or layoffs of employees in other units was con-
trolled by seniority provisions comparable to those in the RNA’s
agreement. Consequently, the extent to which LaClair might have to
construe other labor agreements was probably minimal.
threshold question here is whether the nursing supervisors
were members of the bargaining unit rather than supervisors
under the Act, and even if they were statutory supervisors,
was Respondent required to treat them as if they were unit
employees? If the answer to either of the foregoing questions
is yes, the next question is whether Respondent could unilat-
erally terminate those positions.
1. The question of the nursing supervisors’
supervisory status
a. Applicable principles
Section 2(2) of the Act provides that a supervisor ap-
plies to:
any individual having authority in the interest of the
employer, to hire, transfer, suspend, lay off recall, pro-
mote, discharge, assign, reward or discipline other em-
ployees, or responsibly to direct them, or to adjust their
grievances, or effectively to recommend such action, in
connection with the foregoing the exercise of such au-
thority is not of a merely routine or clerical nature, but
requires the use of independent judgment.
The burden of proving that the foregoing definition applies
to a given position rests Respondent as the party asserting
that status. Ohio Masonic Home, Inc., 295 NLRB 390, 393
(1989). However, the Respondent is not required to show
that nursing supervisors meet all the criteria listed in Section
2(2). Proof that the employee fulfills any one of the enumer-
ated factors may suffice. NLRB v. Yeshiva University, 444
U.S. 672 (1980). However, in the area of nursing, the Board
has ‘‘carefully avoided applying the definition of ‘supervisor’
to a health care professional who gives direction to other em-
ployees in the exercise of professional judgment, which . . .
is incidental to the professional’s treatment of patients
. . . .’’ as distinguished from those who exercise super-
visory authority in the interest of the employer. Beverly
Home Convalescent Centers, 264 NLRB 966, 967 (1982)
(quoting S. Rep. No. 93-766, 93d Cong., 2d Sess. 6 (1974)).
b. Application of principles to the facts of this case
The evidence in this case reveals that some, but not all
nursing supervisors come within the statutory definition of
‘‘supervisor.’’ Although the witnesses testifying about this
matter for the Government and the Respondent were equally
credible, their testimony indicates that they did not possess
the same authority. LaClair’s testimony indicates she had
broad authority. In contrast, Modders’ and Radtke’s testi-
mony established that their roles were far more limited.
Although it is difficult to draw generalizations about the
nursing supervisors’ role, the record shows that there were
certain categories of work which all three witnesses per-
formed (albeit, with varying levels of responsibility); namely,
arranging staffing levels, handling first-stage grievances, dis-
ciplining, and evaluating employees. These functions will be
examined next to determine whether they involved super-
visory authority.
(1) Staffing decision required little independent
judgment
There is no question that nursing supervisors were respon-
sible for staffing decisions; that is, they verified that a suffi-
cient number of employees had been allocated for the current
shift and determined how many employees were needed in
each unit to properly care for patients during the next shift.
According to Modders, this task was fairly routine since the
number of attendants was determined by a computer pro-
gram. In fact, Radtke indicated that on weekdays, the nursing
office took care of most of the staffing work.
However, it is undisputed that the nursing supervisors fre-
quently deviated from the computer generated figures, adding
or reducing the number of aides and nurses, based on their
knowledge of how ill the patients were. This staffing func-
tions involved two sorts of decisions: first, the nursing super-
visors had to decide how many aides, licensed practical
nurses, or RNs were needed on each unit, a responsibility
which clearly entailed the exercise of independent judgment.8
However, that judgment was informed by the nursing super-
visors’ technical and professional experience as to how pa-
tients’ needs could best be served.9 Hence, this responsibility
was related more to the duty to provide patient care than to
the employer’s managerial and administrative interests. Bev-
erly Manor Convalescent Centers, supra at 967.
The second stage of the nursing supervisor’s staffing au-
thority was to decide which employees should be shifted
from one unit to another, requested to work overtime, or sent
home if not needed. This function required little independent
judgment for these matters were decided according to senior-
ity.10 Thus, the staffing function did not require the nursing
supervisor to perform duties consonant with those of a super-
visor under the Act.
(2) Nursing supervisors had differing roles in
dispensing discipline
According to Modders, the nursing supervisor’s role in the
disciplinary process was confined to preparing incident re-
ports and delivering verbal counseling. Modders conceded
that she would include a recommendation for disciplinary ac-
tion where appropriate, but then would forward the report to
the unit coordinator who would handle the matter thereafter.
No evidence was adduced as to whether or not her rec-
ommendation had any effect on the outcome. Moreover, all
registered nurses could submit incident reports, and, there-
fore, Modders had no special authority in this regard.
LaClair, on the other hand, not only prepared incident reports
1082 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 Since art. 7 implies that a shift supervisor has the authority to
issue a second disciplinary report, it is reasonable to infer that the
supervisor is similarly empowered to write a first report as well.
but disciplined the employee involved in the incident as well,
without clearance from a higher authority. No evidence was
adduced, however, that the incident reports were part of a
progressive disciplinary system.
Modders also was authorized to counsel employees ver-
bally for disciplinary purposes. ‘‘Verbal counseling,’’ a term
referred to in article 7 of the parties’ collective-bargaining
agreement, was a preliminary step which preceded the initi-
ation of more serious disciplinary action and led to no other
consequences. (G.C. Exh. 4 at 4.) In such circumstances, it
is well settled that ‘‘merely issuing verbal reprimands is too
minor a disciplinary function’’ to confer supervisory author-
ity. Passavant Health Center, 284 NLRB 887, 889 (1987).
Article 7 of the agreement also provided for more serious,
progressive disciplinary action and required that a written re-
port issue before any penalty was imposed. In the event an
employee received a second disciplinary report, the labor
contract authorized ‘‘the unit coordinator/shift supervisor
and/or Director of Nursing or designee’’ to take ‘‘appropriate
disciplinary action.’’ Id. While Modders never issued such
written reports, LaClair did. The reason for this disparate ap-
proach to disciplinary matters in part may be a matter of
temperament. It is far more likely, however, that the unit co-
ordinator controlled such matters since she was on duty
throughout Modder’s shift, whereas LaClair worked without
any higher ranking authority present, and thus, acted as the
director of nursing’s designee on the night shift, as permitted
by the collective-bargaining agreement.
While the language of article 7 is hardly a model of clar-
ity, it suggests that nursing supervisors were empowered to
issue written warnings and recommend corrective action as
part of a progressive disciplinary system.11 However, the
record does not reveal whether or not the nursing supervisor
had the authority to independently impose a penalty, or
whether others in the nursing hierarchy acted on the nursing
supervisor’s recommendations without independent investiga-
tion. In Passavant, supra at 890, the Board ruled that
for the issuance of reprimands or warnings to constitute
statutory supervisory authority, the warning must not
only initiate, or be considered in determining future dis-
ciplinary action, but also it must be the basis of later
personnel action without independent investigation or
review by other supervisors.
In the absence of probative evidence which meets the
Passavant standards regarding the implications of LaClair’s
authority to issue written warnings, there is no basis to con-
clude that any nursing supervisor had the independent au-
thority required of a statutory supervisory.
(3) Some nursing supervisors independently resolved
grievances
The boundaries of the nursing supervisor’s role in the
grievance process are described in the parties’ collective-bar-
gaining agreement (G.C. Exh. 4 at 21):
Step One—Initiating a Grievance—a nurse with a
grievance shall first discuss the matter with the shift su-
pervisor or unit coordinator for possible resolution. That
nurse shall have the right to have an Association Rep-
resentative present at such discussion. If discussion is
held with the supervisor, that supervisor shall discuss
the issue with the Director of Nursing or designee be-
fore giving official response.
In accordance with this provision, Modders merely served
as a conduit, transmitting employee grievances to the director
of nursing and then conveying the director’s verbal response
to the employee. It is uncontroverted that the nursing director
invariably asked Modders if she had advised the unit coordi-
nator of the grievance. It is obvious that Modders did not ad-
just or resolve grievances independently; even her limited
role as a messenger was circumscribed by the nursing direc-
tor who consistently asked Modders if she had reviewed the
grievance with the unit coordinator before bringing it to her.
Radtke played no role at all in the grievance process. On the
night shift, however, LaClair delivered the ‘‘official re-
sponse’’ without consulting the director of nursing. Again,
LaClair’s greater authority is explained by the fact that no
higher officials were present at the Hospital during the late
night hours. Consequently, LaClair filled a vacuum as the
nursing director’s designee, as role permitted by the parties’
collective-bargaining agreement. Nothing in that agreement
prevented the Hospital from conferring similar authority on
nursing supervisors during the day shift. However, as a mat-
ter of practice, Respondent did not do so since the unit coor-
dinators and the director of nursing were on present during
such times.
(4) The evaluation process
Variances also were evident in the degree to which day
shift and night-shift nursing supervisors contributed to eval-
uations of other employees. Modders explained that the unit
coordinators wrote the evaluations for the employees on her
units and might, on occasion, ask for her opinion. As the
only person in authority on the night shift, LaClair provided
written evaluations of probationary employees. While no evi-
dence was presented which might establish the weight ac-
corded to LaClair’s evaluations, it is fair to infer that they
were influential since she was the only person to have first-
hand knowledge of their individual performance.
(5) Conclusion regarding the status of nursing
supervisors
The General Counsel submits that LaClair was an anomaly
who usurped authority to which she was not entitled. The
record disproves counsel’s contention, for LaClair testified
without dispute that she was specifically asked to perform
certain duties such as providing written evaluations of certain
employees and interviewing applicants for employment on
the night shift, after which she provided the human resources
department with a written recommendation as to the appli-
cant’s hire or nonhire. LaClair was aware that at least one
other night shift nursing supervisor also took part in the
interview process, which supports the inference that other
nursing supervisors on the night shift exercised authority
similar to hers.
In addition, LaClair recommended that employees be fired,
and on one occasion at least, carried out her recommendation
by personally discharging a worker in the presence of a unit
1083GRATIOT COMMUNITY HOSPITAL
12 It was undisputed that LaClair worked without a unit coordina-
tor on the scene. The presence of a unit coordinator on this occasion
was unexplained.
13 This principle in no way bars an employer from challenging the
inclusion of night-shift nursing supervisors in the bargaining unit
once negotiations for a successor agreement have begun.
coordinator.12 No evidence was presented to suggest that
management ever told her she was over-reaching. Accord-
ingly, based on LaClair’s credible and uncontroverted testi-
mony, it is fair to infer that supervisors who worked on
shifts when they were the highest ranking officials present,
performed duties which involved independent judgment in
such matters as grievance resolution, and the hiring and fir-
ing of employees. Accordingly, I conclude that Respondent
has met its burden of proving that night-shift nursing super-
visors were supervisors within the meaning of Section 2(2)
of the Act.
The scope of the nursing supervisors’ authority on the day
shift was far more limited. The record indicates that this di-
chotomy developed in the mid-1980s, when the Hospital cre-
ated the position of unit coordinator who assumed various
managerial duties, including some which had been performed
by the nursing supervisors. Having withdrawn some of the
nursing supervisors’ functions which would have qualified
them as statutory supervisors, Respondent may not now
claim that they are excluded from the protections of the Act.
In sum, I conclude that all nursing supervisors on the night
shift (or other shifts) who exercised the same degree of au-
thority as LaClair were supervisors pursuant to Section 2(2)
of the Act, and that all former nursing supervisors on the day
shift (or other shifts) who had no greater authority than
Modders, were members of the bargaining unit.
2. Respondent unlawfully altered the scope of the unit
It is well settled that an employer may not unilaterally
alter the scope of a bargaining unit during the term of a col-
lective-bargaining agreement covering that unit. Scott Corp.,
296 NLRB 918 fn. 4 (1989), enfd. sub nom. E.G. & H. v.
NLRB, 949 F.2d 276 (9th Cir. 1991); Arizona Electric Power
Cooperative, 250 NLRB 1132 (1980). This is true even if the
unit includes managerial or supervisory positions, for ‘‘once
a unit is certified, it may be changed only by mutual agree-
ment of the parties or by Board action.’’ Id. at 1133.13
Here, Respondent has long recognized the registered
nurses bargaining unit, including nursing supervisors, since
the RNA’s inception on or about 1967. While they are not
expressly identified in the bargaining unit description, special
wage rates for that classification are set forth in article 37
of the contract. Further, announcements of nursing supervisor
vacancies were posted for bid and the positions filled by the
bidder with the most seniority, pursuant to article 21 of the
labor agreement.
Respondent could have objected to the inclusion of night-
shift nursing supervisors in the bargaining unit during nego-
tiations for any of the labor agreements entered into with the
RNA over the past several decades. It did not do so. Indeed,
at no time prior to August 8, when management abruptly an-
nounced the demise of the nursing supervisor classification,
had any Hospital official objected to their inclusion in the
agreement. Having voluntarily recognized a bargaining unit
which included nursing supervisors, Respondent could not
unilaterally abolish those positions during the term of the
contract, even though some of them performed functions of
statutory supervisors.
Respondent argues that nursing supervisors are not in-
cluded in the unit by virtue of contractual language in the
recognition clause which expressly excludes ‘‘supervisors
within the meaning of the National Labor Relations Act.’’
(G.C. Exh. 4 at 1.) Respondent’s argument is unconvincing;
employees may be called supervisors, as were the day-shift
supervisers here, and yet, perform no functions which match
those of a supervisor as defined in Section 2(2). A title can-
not convert an employee into a supervisor under the Act;
rather, it is the nature of an individual’s work and the degree
of responsibility exercised which is dispositive of an employ-
ee’s status.
Although the duties of the day-shift nursing supervisors
were affected in the mid-1980s when the unit coordinator po-
sition was created, the role of the night-shift nursing super-
visor who worked without a unit coordinator present, appar-
ently remained the same. When the parties executed con-
tracts, including the most recent one, management knew, or
should have known, what duties were performed by each cat-
egory of nurses. Consequently, the Respondent was not privi-
leged to modify the scope of the bargaining unit by fiat dur-
ing the contract’s term, for, as the Board confirmed in Ari-
zona Electric, to allow such a practice would undermine the
stability of the collective-bargaining relationship. Id. at 1133.
D. Respondent Unlawfully Laid Off the 7/70 Nurses
The General Counsel submits that when the Respondent
discontinued the 7/70 scheduling option, it unilaterally al-
tered the wages, hours, and other conditions of employment
of registered nurses who had opted for that schedule.
Since the nurses who had elected the 7/70 shift worked
only 70 hours a week for 80 hours’ pay, the Respondent’s
elimination of this scheduling option increased their hours of
pay without a commensurate increase in wages. Furthermore,
numerous other bargaining unit members were adversely af-
fected when the former 7/70 RNs bumped into regularly
scheduled jobs. In fact, some employees who were bumped
into part-time positions as a result of this top-down putsch
lost their entitlement to health benefits.
1. The Respondent’s defenses lack merit
The Respondent defends its decision to eliminate the nurs-
ing supervisors classification and reduce the 7/70 teams to
zero on two grounds. First, Respondent contends that the
management-rights clause, which granted it the ‘‘right to de-
cide the number of employees, provided the authority to
eliminate the nursing supervisors classification. As for the re-
duction of the 7/70 teams, Respondent points to article 46 of
the labor contract as specifically conferring on it the right to
‘‘decide the number of assignments.’’ (G.C. Exh. 4 at 43.)
Relying on NRC Corp., 271 NLRB 1212 (1984), Respondent
argues that the Board should not intervene here since its con-
struction of the collective-bargaining agreement is arguably
reasonable. Second, Respondent poses a waiver argument,
contending that when the Union agreed to accept the man-
agement-rights clause and article 46, it waived its right to
protest unilateral staffing decisions. For the reasons set forth
1084 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 Respondent also cites arts. 14(7), 15, and 16 of the labor agree-
ment in support its argument that it had the right to unilaterally
eliminate the nursing supervisor classification. These provisions are
even more general than the disputed provision in the management-
rights clause clause. Thus, they clearly do not lend themselves to
‘‘equally plausible interpretations . . . .’’ which might warrant the
Board’s withdrawal from this dispute. NRC Corp., supra at 1213.
15 Sometime after the 7/70 program was terminated, Respondent
reinstated it, choosing new members of two teams on the basis of
bids. However, when Respondent announced that the shift would be
abolished, it gave no hint that it might be restored. Thus, Respond-
ent’ resurrection of the 7/70 schedule was a separate, unilateral act.
16 See also other cases cited in Johnson-Bateman, supra at 184–
185.
below, I conclude that the Respondent’s arguments lack
merit.
a. Respondent did not have specific contractual
authority to unilaterally eliminate the nursing
supervisor classification
In NRC Corp., supra, an employer relied on a contract
provision governing transfers into and out of a district to uni-
laterally transfer work from one district to another. The Gen-
eral Counsel and the Union argued that a contract clause
concerning the employer’s right to consolidate, merge, or re-
organize a district forbid the transfer. The Board ruled that
where both parties had equally plausible interpretations of
disputed provisions in their collective-bargaining agreement,
the employer’s allegedly unlawful conduct was based on a
‘‘substantial claim of contractual privilege’’; and that the dis-
pute was solely one of contract interpretation, ‘‘the Board
will not enter the dispute to serve the function of arbitrator
in determining which party’s interpretation is correct.’’ (Cita-
tion omitted.) Id. at 213.
However, in Johnson-Bateman Co., 295 NLRB 180, 186
(1989), where the employer claimed that a management-
rights clause legitimized the unilateral implementation of a
drug/alcohol testing requirement, the Board distinguished
NRC Corp., finding that:
the express, general provisions of the Management
Rights clause . . . do not provide the Respondent with
a ‘‘sound arguable basis’’ for ascribing to that clause
a specific privilege to implement unilaterally the
drug/alcohol testing requirement.
In the instant case, Johnson-Bateman rather than NRC
Corp. governs.14 Here, the management-rights clause in the
parties’ labor contract, speaks in general terms of the Hos-
pital’s right ‘‘to decide the number of employees.’’ This lan-
guage is simply too broad and nonspecific to provide the Re-
spondent a ‘‘‘sound arguable basis’ for ascribing to that
clause a specific privilege’’ to abolish unilaterally a classi-
fication of bargaining unit employees. Johnson-Bateman Co.,
supra at 186.
It also should be noted that the collective-bargaining
agreement states: ‘‘The above defined Management Rights
shall not be exercised in contravention of any express provi-
sion of the Agreement.’’ (G.C. Exh. 4 at 3.) Although there
is no contractual provision which expressly created the nurs-
ing supervisor positions, article 37 sets forth their separate
rates of pay. When the Respondent eliminated the nursing
supervisor category, it breached its duty to pay these nurses
in accordance with their contractual wage rate, thereby con-
travening an ‘‘express provision of the Agreement.’’ This
conflict between articles 5 and 37 further undermines Re-
spondent’s claim of contractual privilege.
b. Article 46 does not authorize the layoff
of 7/70 nurses
Respondent also relies on the NRC case in arguing that its
decision to reduce the 7/70 nursing teams to zero was a spe-
cifically reserved right. The difficulty with Respondent’s ar-
gument is that it did not just decide on a given number of
7/70 assignments; it notified all 26 nurses who worked that
schedule that they were laid off. Thus, what Respondent
awkwardly styles a reduction in the number of assignments,
a step which it never before had taken, was nothing less than
an abolition of the 7/70 program.15
Article 46 covers four pages in the collective-bargaining
agreement and sets forth in great detail terms and conditions
of employment applicable to nurses on the 7/70 shift. How-
ever, it contains not one word about the program’s termi-
nation. Having apparently paid considerable attention to ne-
gotiating this article, the parties surely would have referred
to the manner in which it could be canceled, had that been
their intention, particularly if the Hospital was assigned the
right to decide that matter unilaterally. Article 46 also is si-
lent as to layoffs. It is article 24 that controls this subject,
setting forth in great detail the order in which layoffs were
to occur, starting with nurses possessing the least seniority.
However, nurses on the 7/70 shift were among those with the
greatest seniority. Therefore, in laying off the 7/70 shift
nurses first, Respondent ignored its obligations under article
24 the contract. Accordingly, I am not persuaded that Re-
spondent has a sound arguable basis to find in article 46 a
specific privilege to unilaterally eliminate the 7/70 program.
Accordingly, contrary to Respondent’s contentions, I con-
clude that allegations that Respondent violated the Act by an-
nouncing unilaterally that the nursing supervisor and 7/70
shift positions would be eliminated is properly before me.
c. The RNA did not waive its bargaining rights
Like the employer in Johnson-Bateman, supra, Respondent
argues that the RNA contractually waived its right to bargain
about the unilateral elimination of nursing supervisor posi-
tions and the 7/70 program. The Board’s treatment of this ar-
gument in Johnson-Bateman is wholly applicable here. In
that case, the Board began its analysis by reciting well-set-
tled law that
the waiver of a statutory right will not be inferred from
general contractual provisions, rather, such waivers
must be clear and unmistakable. Accordingly, the Board
has repeatedly held that generally worded management-
rights clauses . . . will not be construed as waivers of
statutory bargaining rights.
Id. at 184.16 Particularly where an employer claims that right
to make unilateral changes midterm, the contractual language
alleged to sustain such a claim will be strictly construed. See
Westinghouse Electric Corp., 278 NLRB 424, 434 (1986).
Applying these principles to the matter before it, the Board
1085GRATIOT COMMUNITY HOSPITAL
then concluded that nothing in the parties’ bargaining history
showed that
the meaning and implications of the management-rights
clause in general or drug/alcohol testing in particular,
were ‘‘fully discussed and consciously explored’’ dur-
ing negotiations, or that the Union ‘‘consciously yielded
or clearly and unmistakably waived its interest’’ in re-
gard to bargaining about the drug/alcohol testing re-
quirement. [Id.]
Similarly, no evidence was presented in this case that the
parties discussed eliminating the nursing supervisor positions
in the context of the management-rights clause, or the aboli-
tion of the 7/70 option as a management right under article
46. Indeed, there was no evidence that the parties discussed
such matters at any time or in any context during contract
negotiations. Accordingly, the Respondent’s claims of con-
tractual waiver are rejected.
2. The Respondent may not modify mandatory subjects
of bargaining during the contract’s term
Under Section 8(d) of the Act, wages, hours, and other
terms and conditions of employment are mandatory subjects
of bargaining. During the term of an agreement, an employer
may not unilaterally change any provision which is a manda-
tory subject, absent the union’s consent. To do so constitutes
a per se refusal to bargain. NLRB v. Katz, 369 U.S. 736
(1962).
In the case at bar, by eliminating nursing supervisor posi-
tions, Respondent unilaterally reduced the wages of the em-
ployees who held those jobs; by terminating the 7/70 pro-
gram, Respondent unilaterally increased the number of hours
worked by the nurses who worked such shifts without a com-
mensurate increase in wages. These were significant changes
in mandatory subjects which had a considerable impact on
members of the bargaining unit in addition to those directly
affected. Respondent was legally bound to notify the Union
of any proposed changes and provide an opportunity to bar-
gain. Instead, management remained close-mouthed about the
actual terms of the recovery plan. The RNA learned about
the changes only after the board of directors had endorsed
the recovery plan and its provisions were announced to the
Hospital staff at large. By bypassing the Union and commu-
nicating these significant changes directly to the employees,
Respondent ‘‘disparages the collective-bargaining process
and improperly undermines the status of the Union as the
designated and recognized collective-bargaining representa-
tive of the . . . employees.’’ Hecks, Inc., 293 NLRB 1118
(1989).
Even if the Respondent had given proper notice of its pro-
posals, the the Union had no obligation to request or engage
in bargaining, much less consent to any modification of the
extant agreement. In the absence of the Union’s consent,
‘‘[t]he unambiguous language of Section 8(d) of Act explic-
itly . . . forbade Respondent’s midterm modification’’ of the
contract’s job classification and wage scheme for day-shift
nursing supervisors and the 7/70 scheduling program. Oak
Cliff-Golman Baking Co., 207 NLRB 1063, 1064 (1973).
In sum, by failing to apprise the RNA of its recovery
plans, announcing the details of the plan to the employees
without giving prior notice to the Union, and unilaterally im-
plementing its plans, Respondent exhibited a cavalier dis-
regard of its contractual bargaining obligations in violation of
Section 8(a)(1) and (5) of the Act.
CONCLUSIONS OF LAW
1. Respondent Gratiot Community Hospital is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. The Gratiot Community Hospital Registered Nurses As-
sociation (RNA) is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(5) and (1) of the Act
by (a) refusing to bargain collectively with the RNA over its
decision and the effects of its decision to cease supplying
laundered surgical scrub uniforms to all registered nurses; (b)
to eliminate the nurse supervisor classification and notify
registered nurses in such positions they were laid off, and (c)
eliminate the 7/70 work schedule and notify nurses on that
schedule that they were laid off.
4. Respondent violated Section 8(a)(1) and (5) by coercing
an employee to meet with a management representative with-
out the presence of a RNA representative to discuss or re-
solve a grievance.
5. The following employees constitute a unit appropriate
for collective-bargaining purposes within the meaning of
Section 9(b) of the Act:
All full-time and regular part-time Registered Nurses
employed by Respondent, but excluding irregular part-
time nurses, student employees, all other employees,
Health Education Coordinator, Infection Control Coor-
dinator, The Director of Nursing, Assistant Directors of
Nursing, and all other supervisors within the meaning
of the National Labor Relations Act.
6. The unfair labor practices outlined in paragraphs 3 and
4 above affect commerce within the meaning of Section 2(6)
and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair labor
practices in violation of Section 8(a)(1) and (5) of the Act,
I shall order that it cease and desist therefrom and take cer-
tain affirmative action designed to effectuate the policies of
the Act.
Specifically the Respondent shall be directed, on request
of the RNA, to rescind all unilateral changes and reinstate
the wages, hours, job classifications, and other terms and
conditions of employment, including the provision of surgical
scrub uniforms, which were in effect prior to the time it im-
plemented these changes. Respondent also shall be instructed
to bargain with the RNA about its unilateral decisions, and
the effects of those decisions, to end its practice of providing
laundered surgical scrub uniforms to registered nurses, to
eliminate the nurse supervisor classification insofar as it ap-
plied to registered nurses who worked when unit coordina-
tors and the director of nursing were present, to terminate the
7/70 shift schedule, and to lay off any employees affected by
its unilateral decisions.
Further, Respondent shall be instructed to make whole
those employees who were directly and indirectly affected
for any loss of earnings and other benefits suffered as a re-
sult of Respondent’s unilateral conduct in eliminating the
1086 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
17 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.
18 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
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.’’
7/70 shift option, the nurse supervisor classification, except
for those nurse supervisors who worked with unit coordina-
tors or the director of nursing present, and the scrub uni-
forms.
Lastly, Respondent shall be ordered to post the notice ap-
pended to this decision.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended17
ORDER
The Respondent, Gratiot Community Hospital, Alma,
Michigan, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with the Gratiot Com-
munity Hospital Registered Nurses Association over its deci-
sions, and the effects of those decisions, (1) to cease supply-
ing surgical scrub uniforms to the registered nurses; (2) to
eliminate the nursing supervisor classification insofar as it
applied to nursing supervisors who worked under the direct
supervision of unit coordinators and the director of nursing;
and (3) to terminate the 7/70 work schedule, and to lay off
any employees affected by the decisions outlined in clauses
(2) and (3) of this paragraph.
(b) Coercing employees to meet with management without
a representative of the RNA present to discuss or resolve
grievances.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) On request of the RNA, rescind all unilateral changes
and reinstitute the wages, hours, job classification, and other
terms and conditions of employment, including the provision
of surgical scrub uniforms, that were in effect prior to its un-
lawful conduct.
(b) Bargain with the RNA, on request, regarding its deci-
sions, and the effects of those decisions, to cease providing
surgical scrub uniforms, to eliminate the nurse supervisor
classification (except for those who worked without direct
oversight from unit coordinators and the director of nursing),
and to eliminate the 7/70 shift program, for employees in the
following appropriate unit:
All full-time and regular part-time Registered Nurses
employed by Respondent, but excluding irregular part-
time nurses, student employees, all other employees,
Health Education Coordinator, Infection Control Coor-
dinator, The Director of Nursing, Assistant Directors of
Nursing, and all other supervisors within the meaning
of the National Labor Relations Act.
(c) Make whole those registered nurses who were directly
and indirectly affected, for any loss of earnings and other
benefits they may have suffered as a result of its unlawful
conduct in ceasing to supply surgical scrub uniforms, elimi-
nating the nursing supervisor classification (except for those
who worked without direct oversight from unit coordinators
and the director of nursing), and terminating the 7/70 shift
program.
(d) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of compensation due under the terms of this Order.
(e) Post at its place of business in Alma, Michigan, copies
of the attached notice marked ‘‘Appendix.’’18 Copies of the
notice, on forms provided by the Regional Director for Re-
gion 7, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
employees customarily are posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.