Indian River Memorial Hospital

National Labor Relations Board - Board Decisions

Sep 30, 2003

340 N.L.R.B. 467 (N.L.R.B. 2003)

INDIAN RIVER MEMORIAL HOSPITAL 467
Indian River Memorial Hospital, Inc. and Interna-
tional Brotherhood of Teamsters Local 769,
AFL–CIO. Case 12–CA–21201
September 30, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS
SCHAUMBER AND WALSH
On January 8, 2002, Administrative Law Judge Law-
rence W. Cullen issued the attached bench decision. The
Respondent filed exceptions, a supporting brief, and a
reply brief. The General Counsel filed an answering
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 record1
in light of the exceptions and briefs and affirms the
judge’s rulings, findings, and conclusions, as further ex-
plained below, and adopts the recommended Order2 as
modified.
Summary
At issue is whether the Respondent violated Section
8(a)(5) and (1) of the Act by unilaterally changing its
shift schedules and on-call procedures. As discussed
below, we agree with the judge that the Respondent’s
failure to bargain was unlawful because the change in-
volved a mandatory subject of bargaining, the Respon-
dent implemented it after the Union’s recognition, the
Respondent failed to prove it decided to make the change
before recognizing the Union, and the Union requested
bargaining about the change.
Facts
On August 9, 2000,3 the Respondent, Indian River
Memorial Hospital, voluntarily recognized Teamsters
Local 769 (the Union) as the exclusive representative of
the employees in its facility services department, a unit
of about 25 skilled maintenance employees. Soon after
the Union was recognized, Union Business Representa-
tive Mike Scott received a posted work schedule, faxed
to him from a unit employee, which indicated a second
and third shift. Scott immediately called the Respon-
dent’s human resources director, Bob Zomok, and noti-
fied him that shift changes would require bargaining.
Zomok said he would get back to Scott, and he re-

1 We grant the General Counsel’s motion for correction of the tran-
script where the judge’s bench decision inadvertently lists $25,000
instead of $250,000 as the Respondent’s gross revenue.
2 We modify the recommended Order to include the unit description
and to correct the date of the first unfair labor practice. We substitute a
new notice in accordance with our decision in Ishikawa Gasket Amer-
ica, Inc., 337 NLRB 175 (2001).
3 All dates are in 2000 unless otherwise stated.
sponded by e-mail the following day, stating, “No sched-
ule change has been implemented. A listing of new
‘Teams’ was posted due to a Team Leader transferring to
another department.” Scott testified that at this point he
assumed the shift change was a “dead issue” because the
Respondent had simply changed teams.
In October, John Spencer, the Respondent’s director of
facility services, announced to employees in a depart-
ment meeting that schedule changes were going to be
made and it was the department manager’s decision to
make those changes. On November 13, while negotia-
tions for a collective-bargaining agreement were ongo-
ing, the Respondent announced by written notice to unit
employees that on December 4, it would change the
unit’s hours of work by creating three second-shift posi-
tions and one third-shift position, and it solicited em-
ployee bids for these positions.4 The Union received no
notice of these changes until November 15, when em-
ployee Barry Hurley faxed the November 13 notice to
Scott.
On November 15, Scott faxed a letter to Zomok in re-
sponse to the schedule changes. The letter stated:
This matter is clearly a change in the terms and condi-
tions of employment and as such is a mandatory sub-
ject of bargaining. Please be advised that if the Hospi-
tal fails to rescind this Notice by the close of business
today Teamsters Local Union No. 769 will file Unfair
Labor Practice Charges with the National Labor Rela-
tions Board.
The same day, Zomok responded to Scott by e-mail, stating:
We are willing to bargain collectively over those items
covering wages, hours, and working conditions. In this
instance, clearly changing schedules to improve the op-
erations of the organization is a management right. My
opinion is this right is not mitigated unless we do so in
the collective bargaining environment. Again, this is a
subject we are willing to discuss; however, you are
very well aware of my position on the management
rights clause. Second, this initiative was in process
prior to the recognition of the maintenance unit. . . . I
am unwilling, at this point, to rescind the notice. . . .5
4 This decision also involved changing the 7-day “on-call” status of
unit employees (while the single shift was in place) to on-call status
only on Saturday and Sunday (when the second and third shifts were
implemented), thus eliminating on-call pay for Monday through Friday.
Both parties, as well as the judge, discuss the shift changes and on-call
pay changes as components of the same decision (i.e., the addition of
shifts enabled the reduction of on-call pay). Thus, we treat references
to either of the changes as referring to both addition of shifts and reduc-
tion of on-call pay.
5 On cross-examination, Zomok conceded that his opinion, to which
he referred in this e-mail, was that the Union did not have any right to
340 NLRB No. 58
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 468

Within the next hour, Scott sent an e-mail reply stating, “We
will file the charge and let the NLRB sort it out.” The Un-
ion then filed a charge resulting in this proceeding.
Judge’s Decision
The judge issued a bench decision, finding that the Re-
spondent violated Section 8(a)(5) and (1) of the Act by
failing and refusing to bargain about the changes in shift
schedules and on-call procedures. Specifically, the judge
found that the change was material and substantial and
involved a mandatory subject of bargaining; the Respon-
dent did not make a final decision until after the Union’s
recognition; the Union made a bona fide demand for bar-
gaining; the Respondent had an obligation to bargain;
and the Respondent did not meet this obligation prior to
implementation of the changes.
Respondent’s Exceptions
The Respondent argues it was not required to bargain
over this change because the decision was made on Feb-
ruary 28, before recognition of the Union, and the Re-
spondent merely waited until later in the year to imple-
ment the decision in consideration of the potential impact
on employees. In support of this argument, the Respon-
dent points to an internal company e-mail on that date
from John Spencer to Human Resources Director Zo-
mok, which states:
Attached is a spreadsheet showing what we presently
have and what we are looking at doing. We need to
change the call duty and it would probably be best to
do it in phases and over an extended period of time. I
still have reservations on making changes during this
particular time. I suggest we look at the third and four
[sic] quarters and tell our people at that time what will
happen with the new budget year. This gives them
time to adjust their household budgets. We can do
what is on spreadsheet page 2 at that time. . . . Let’s talk
BIG TIME about this before we do anything! [Empha-
sis in original.]
The spreadsheet included a study of the cost of on-call pay
that had been reviewed by the “operations review team,” a
group of department heads who were looking into possible
cost savings. John Spencer testified that this e-mail repre-
sented his decision as to what was going to be done, but
how it was going to be accomplished was yet to be decided.
The Respondent also argues that the shift change of
one unit employee on July 24 marked the beginning of
the implementation of the shift-change decision. Al-
though unit employees had previously worked only the
first shift, second and third shifts were in place for other

bargain over these changes unless the Respondent had agreed to do so
through collective bargaining, and the Respondent had not done so.
employees due to the hospital’s continuous operation.
Employee Barry Hurley transferred to the second shift
(3:30 p.m.–midnight). He later transferred temporarily to
a unique 12–8:30 p.m. shift, which he requested because
of family difficulties, and he then returned to the second
shift.
Finally, the Respondent contends that the Union did
not demand bargaining about the schedule change. The
Respondent argues that Scott’s e-mails and letters did not
mention bargaining or attempt to schedule a bargaining
session. Therefore, the Respondent concludes that the
Union did not exercise due diligence in pursuing bargain-
ing.
Discussion
The Respondent’s work schedule change involves a
mandatory subject of bargaining. Pepsi-Cola Bottling
Co. of Fayetteville, 330 NLRB 900, 902 fn. 19 (2000),
enfd. mem. in relevant part 24 Fed. Appx. 104 (4th Cir.
2001) (citing Our Lady of Lourdes Health Center, 306
NLRB 337, 339 (1992)). We disagree with the Respon-
dent’s argument that it had no obligation to bargain here
because it decided on the schedule change and began to
implement it prior to recognizing the Union. Contrary to
the Respondent’s assertions, the language in the internal
management e-mail to Zomok on February 28, which
refers to further discussion of schedule changes before
doing anything, does not establish that a final decision
had been made at that time. Furthermore, the Respon-
dent’s argument is undermined by Zomok’s August e-
mail to Scott, in which he stated, “No schedule change
has been implemented.” Thus, the Respondent has not
proven that it made a final decision to make the schedule
change before it recognized the Union. See Britt Metal
Processing, 322 NLRB 421 (1996), enfd. mem. 134 F.3d
385 (11th Cir. 1997), rehearing en banc denied mem. 137
F.3d 1357 (11th Cir. 1998).6
The Union received no formal notice of the schedule
changes; rather, the Union was informed of the change
for the first time by an employee on November 15. Once
the Union learned of the change, Business Representative
Scott immediately notified the Respondent that this was a
mandatory subject of bargaining and requested rescis-
sion. Scott’s letter to Zomok was undoubtedly a request
for bargaining, which “need take no special form, so long
as there is a clear communication of meaning.” Armour
6 The judge drew an adverse inference regarding the Respondent’s
failure to furnish documents relating to the decision to change sched-
ules. The Respondent contends that this is not enough to rebut its evi-
dence showing that it made the decision before recognizing the Union.
Because we find that the Respondent’s evidence does not establish that
it made the decision and implemented the schedule change before rec-
ognizing the Union, we find it unnecessary to address this issue.
INDIAN RIVER MEMORIAL HOSPITAL 469
& Co., 280 NLRB 824, 828 (1986) (quoting Scobell
Chemical Co. v. NLRB, 267 F.2d 922, 925 (2d Cir.
1959)) (although the union never used the word “bar-
gain,” events left little doubt that the union was inter-
ested in bargaining, if necessary). Indeed, Zomok’s re-
sponse indicated he understood Scott was requesting
bargaining. Furthermore, Scott previously informed
Zomok that any shift changes required bargaining, and
Zomok responded that no schedule change had been im-
plemented at that time. Thus, the Union timely requested
bargaining about the schedule change prior to implemen-
tation. Cf. AT&T Corp., 337 NLRB 689, 692 (2002)
(union’s entire course of conduct demonstrated lack of
due diligence in pursuing bargaining). We therefore find
no merit in the Respondent’s assertion that the Union
waived its bargaining rights, and we adopt the judge’s
finding that the Union made a bona fide demand for bar-
gaining.
Because the parties were engaged in overall contract
negotiations, which encompassed the mandatory bargain-
ing subject at issue here, the Respondent was obligated
not only to give the Union notice and an opportunity to
bargain over the schedule change, but also to refrain
from implementation until impasse or agreement. NLRB
v. Katz, 369 U.S. 736, 743 (1962); Haddon Craftsmen,
300 NLRB 789, 791 (1990) (citing Lange Co., 222
NLRB 558, 563 (1976)). However, the Respondent de-
nied the Union’s request to rescind the changes pending
bargaining. Accordingly, we agree with the judge that
the Respondent violated Section 8(a)(5) and (1) of the
Act by failing and refusing to bargain with the Union
prior to implementing the schedule change.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Indian
River Memorial Hospital, Inc., Vero Beach, Florida, its
officers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
1. Substitute the following for paragraph 1(a).
“(a) Unilaterally instituting changes in its unit employ-
ees’ wages and hours and other terms and conditions of
employment without providing notice to the Union of
any proposed changes and, upon request, bargain with
the Union concerning these changes on behalf of the em-
ployees in the following appropriate unit:

All stationary engineers, journeymen, master crafts-
men, craftsmen, and groundskeepers, employed by the
Respondent at its Vero Beach, Florida, facility; exclud-
ing team leader, senior groundskeeper, CAD operator,
engineering data management coordinator, biomedical
equipment tech I-II-III, office coordinator, all other
employees, guards, and supervisors as defined in the
Act.”
2. Substitute the following for paragraph 2(c).
“(c) Within 14 days after service by Region 12, post at
its Vero Beach, Florida facility copies of the attached
notice marked “Appendix B.”7 Copies of the notice, on
forms provided by the Regional Director for Region 12,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent immediately
upon receipt and maintained by it for 60 consecutive
days in conspicuous places, including all places where
notices to employees 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. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former
employees employed by the Respondent at any time
since November 13, 2000.”
3. Substitute the attached notice for that of the admin-
istrative law judge.
APPENDIX B
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 Federal labor law and has ordered us to post and obey
this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist any union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT unlawfully institute unilateral changes
in the terms and conditions of employment of our em-
ployees by instituting schedule changes and eliminating
shifts and on-call pay without providing International

7 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 470
Brotherhood of Teamsters, Local 769, AFL–CIO with
notice thereof and upon request bargaining with the Un-
ion concerning these changes on behalf of the employees
in the following appropriate unit:
All stationary engineers, journeymen, master crafts-
men, craftsmen, and groundskeepers, employed by the
Respondent at its Vero Beach, Florida, facility; exclud-
ing team leader, senior groundskeeper, CAD operator,
engineering data management coordinator, biomedical
equipment tech I-II-III, office coordinator, all other
employees, guards, and supervisors as defined in the
Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL upon request by the Union, restore the
status quo ante by reinstating the shift schedules and on-
call pay procedures as they existed prior to November
2000, and WE WILL notify the Union of any proposed
changes in the wages, hours and other terms and condi-
tions of employment of the bargaining unit employees
and upon request by the Union, bargain with it prior to
making any proposed changes and if agreement is
reached embody it in a signed agreement.
INDIAN RIVER MEMORIAL HOSPITAL,
INC.

Dallas L. Manuel, II, Esq. and Jermaine A. Walker, Esq., for
the General Counsel.
Bradley R. Johnson, Esq. and Helen A. Palladeno, Esq., for the
Respondent.
Mike Scott, Business Representative., for the Charging Party.
BENCH DECISION
STATEMENT OF THE CASE
LAWRENCE W. CULLEN, Administrative Law Judge. This
case was heard before me in Vero Beach, Florida, on December
14, 2001.
I found Respondent Indian River Memorial Hospital, Inc.
violated Section 8(a)(5) and (1) of the National Labor Relations
Act (the Act) by failing and refusing to bargain with the Charg-
ing Party, International Brotherhood of Teamsters Local 769,
AFL–CIO, prior to implementing changes in its shift schedules
and its on-call procedures.
My bench decision as corrected and amended with the issu-
ance of this decision in final form was delivered in accordance
with the authority of Section 102.35(a)(10) of the National
Labor Relations Board’s Rules and Regulations and in accor-
dance with Section 102.45 thereof, I certify the accuracy of,
and attach as “Appendix A” my bench decision, the pertinent
part of the trial transcript as corrected and amended.
CONCLUSIONS OF LAW
Based upon the entire record at the hearing, I find that Re-
spondent is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act; that Respon-
dent Indian River Memorial Hospital, Inc. violated Section
8(a)(5) and (1) of the Act in the particulars and for the reasons
stated at the hearing; and that its violations have affected and
unless permanently enjoined will continue to affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
I find that Respondent should be ordered to cease and desist
from the foregoing violations of the Act and should be ordered
upon request by the Union to restore the status quo ante by
reinstating the shift schedules and the on-call pay procedure as
they existed prior to Respondent’s elimination and changes of
them and notify the Union of any proposed changes in the em-
ployees’ wages, hours, and other terms and conditions of em-
ployment and upon request bargain with the Union concerning
them and if agreement is reached, reduce it to writing. I note
the General Counsel does not seek a make-whole remedy and I
do not order such a remedy.
I hereby issue the following recommended1
ORDER
The Respondent, Indian River Memorial Hospital, Inc., Vero
Beach, Florida, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Unilaterally instituting changes in its unit employees’
wages and hours and other terms and conditions of employment
without providing notice to the Union of any proposed changes
and upon request bargaining these changes with the Union.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative actions necessary to effec-
tuate the policies of the Act.
(a) Upon request by the Union, restore the status quo ante by
reinstating the shift schedules and on-call pay procedures as
they existed prior to the unlawful unilateral changes.
(b) Notify the Union of any proposed changes in the wages,
hours, and other terms and conditions of employment of the
bargaining unit employees and upon request by the Union,
bargain with it concerning any proposed changes and if agree-
ment is reached embody it in a signed agreement.
(c) Within 14 days after service by Region 12, post at its
Vero Beach, Florida facility copies of the attached notice to
Employees marked “Appendix B.”2 Copies of the notice, on
forms provided by the Regional Director for Region 12, after
being signed by the Respondent’s authorized representative,

1 If no exceptions are filed as provided by Sec.102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec.102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
2 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
INDIAN RIVER MEMORIAL HOSPITAL 471
shall be posted by the Respondent immediately upon receipt
and maintained by it for 60 consecutive days in conspicuous
places, including all places where notices to employees 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. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since August
2000.
(d) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
APPENDIX A
(Whereupon, a brief recess was taken.)
JUDGE CULLEN: on the record.
I’m going to issue a bench decision in this case. The charge
in this proceeding was filed by the International Brotherhood of
Teamsters, Local 769, AFL–CIO, hereinafter referred to as the
Union. The charge alleged that Indian River Memorial Hospi-
tal, Inc., Respondent, has been engaging in unfair labor prac-
tices affecting commerce as set forth and defined in the Na-
tional Labor Relations Act. The charge was filed by the Union
on November 20, 2000, and a copy was served by regular mail
on Respondent on November 24, 2000.
The complaint alleges, the Respondent admits, and I find that
at all material times herein, Respondent has been a Florida
corporation with an office and place of business in Vero Beach,
Florida, herein called Respondent's Vero Beach facility, and
that it has been engaged in the business of operating a hospital.
During the past 12 months, preceding the filing of the com-
plaint Respondent, in conducting its business operations, de-
rived gross revenues in excess of $25,000 and purchased and
received at its Vero Beach facility goods valued in excess of
$50,000 directly from points outside the State of Florida. At all
material times herein, Respondent has been an employer en-
gaged in commerce within the meaning of Section 2(2) (6) and
(7) of the Act.
At all material times, the Union has been a labor organiza-
tion within the meaning of Section 2(5) of the Act.
At all material times herein, the following individuals held
the positions set forth opposite their respective names and have
been supervisors of Respondent within the meaning of Section
2(11) of the Act, and agents of Respondent within the meaning
of Section 2(13) of the Act:
Rick Jones has been the Engineering manager. Robert Zo-
mok has been the Director of Human Resources. John Spencer
has been the Director of Facility Services.
The following employees of Respondent, herein called the
Unit, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act:
All stationary engineers, journeymen, master craftsmen,
craftsmen, and groundskeepers, employed by Respondent at its
Vero Beach, Florida, facility; excluding team leader, senior
groundskeeper, CAD operator, Engineering Data Management
Coordinator, Biomedical Equipment Tech I-II-III, Office Coor-
dinator, all other employees, guards, and supervisors, as de-
fined in the Act.
Since on or about August 9th 2000, the Union has been the
designated exclusive collective bargaining representative of the
Unit, and has been recognized as such by Respondent. This
recognition has been embodied in a recognition agreement
dated August 9, 2000, as set forth in the letter of that date from
Robert Zomok to the Union.
The complaint alleges that on or about November 13, 2000,
by written notice to the Unit employees, Respondent announced
that it would change the hours of work for the Unit by creating
three second shift positions and one third shift position, effec-
tive December 4, 2000, and that Respondent solicited employee
bids for those positions effective immediately and that on or
about December 4, 2000, Respondent implemented the changes
described above.
It is alleged that the subjects set forth are mandatory subjects
for the purpose of collective bargaining. It is also alleged that
Respondent engaged in the conduct described above while
negotiations for an initial collective bargaining agreement were
ongoing, and without prior notice to the Union, and without
affording the Union an opportunity to bargain with Respondent
with respect to these changes. It is thus alleged that the Re-
spondent has violated Section 8(a)(1) and (5) of the Act.
In February 2000, the Respondent engaged in a review of its
wages and costs, including hourly wages and “on call” pay
provisions. This review was performed by a management
committee made up of Respondent's managers, including its
Human Resources director, Robert Zomok, and the director of
its facilities, John Spencer.
As noted above on August 9, 2000, the Respondent granted
the union recognition. According to the General Counsel, it
was not until after September 1st, 2000 that the Respondent
made its initial decision to eliminate certain shifts and to add
certain additional shifts for the scheduling of the unit employ-
ees for work.
On October 3rd, 2000 according to the Union’s Business
Manager, Mike Scott, the parties engaged in their first bargain-
ing session. Director of Human Resources Zomok testified that
the correct date is November 3rd. For purposes of this hearing,
I will assume that the correct date is November 3rd. There was
no other direct evidence with respect to this.
On November 13th, the Respondent made an announcement
of its intent to implement schedule and shift changes with an
effective date of December 4, 2000. The Respondent contends
that the decision to go to three shifts actually occurred on Feb-
ruary 28, 2000. Respondent contends that the initial implemen-
tation of the plan to man the second and third shift was made on
July 24, 2000. The Respondent contends that in late 1999, it
began to focus on reducing costs including “on call” pay, and
that when this area was analyzed, Respondent found with re-
spect to its Maintenance Department employees that less than
five percent of the time, employees who were “on call” and
received on call pay were actually called. John Spencer, Direc-
tor of Facility Services, e-mailed Director of Human Resources
Zomok a plan and suggested it not be implemented until the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 472
third or fourth quarter of 2000. He also indicated that they
should discuss this further.
The General Counsel called as its first witness, Mike Scott,
who is the business representative of Local 769. The Local
also represents a group of Respondent’s nurses, approximately
400 employees, in a separate bargaining unit and the parties
have entered into a collective bargaining agreement for this
unit. As noted the Union also represents the unit of approxi-
mately 25 skilled maintenance employees, at issue in this case.
In August of 2000, business manager Scott received notice
from unit employees that Respondent was initiating some shift
changes. He immediately contacted Zomok and raised this
issue with him, contending that it was necessary that any
changes be bargained. Zomok e-mailed Scott on the same date
on the day later, 9/1/2000, that no schedule change had been
implemented. Zomok also stated in the e-mail that Tuesday,
September 26, 2000, would be an appropriate day to negotiate
the maintenance agreement.
The Union, at a bargaining session on November 3rd, 2000
presented to Respondent’s representatives a complete proposed
collective bargaining agreement modeled on the nurses agree-
ment that it had earlier entered into with the Respondent.
On November 13th 2000, the Respondent issued a notice to
its employees, which was not directed to the Union, stating in
pertinent part, that it would be making changes to the depart-
ment schedules in the next few weeks. Some of the existing
first shift positions would be on either the second or third shift.
The new assignments would be posted according to the skills
needed. The most senior bidder of those qualified for any posi-
tion would be placed on that schedule. Further, it mentioned
specifically that three second shift positions were to be filled
and one third shift position was to be filled. It also stated that
these changes would be effective December 4, 2000, and urged
that those who wished to apply for these positions, contact En-
gineering Manager Rick Jones, by November 17th, 2000.
On November 15, 2000, Business Manager Mike Scott di-
rected a letter to, HR director Zomok and stated that “I've re-
ceived a copy of the November 13, 2000, notice that was dis-
tributed to the skilled maintenance employees. As you know,
this memo announces the creation of two new shifts, and the
number and type of positions to be assigned to each. This mat-
ter is clearly a change in the terms and conditions of employ-
ment and, as such, is a mandatory subject of bargaining. Please
be advised that if the hospital fails to rescind this notice by the
close of business today, Teamsters Local Union Number 769
will file unfair labor practice charges with the National Labor
Relations Board.”
This letter was responded to, by e-mail, by Zomok to Scott
on the same date, November 15th. Zomok stated in his e-mail,
“we are willing to bargain collectively over those items con-
cerning wages, hours, and working conditions. In this instance,
clearly changing schedules to improve the operations of the
organization is a management right. My opinion is this right is
not mitigated unless we do so in the collective bargaining envi-
ronment. Again, this is a subject we are willing to discuss.
However, you are very well aware of my position on the man-
agement rights clause.”
Zomok’s E-mail further stated, “Second, this initiative was
in process prior to the recognition of the Maintenance unit.
Obviously, this is a matter of serious concern to both you and
me. Further, we recognize the significant difference of opinion
and perspective in this matter. I am unwilling, at this point, to
rescind the notice. I am in touch with Brad Johnson (Respon-
dent’s attorney) and am awaiting his reply.” Scott e-mailed
Zomok a reply on the same date which stated simply “we will
file the charge and let the NLRB sort it out.”
Scott testified that he had verbally informed the company
that they were ready to negotiate in August, after the recogni-
tion of the Union. While he placed the first date of the first
bargaining session as October 3rd, I have found that the correct
date was November 3rd, as testified to by Zomok.
Scott testified also that sometime between August 9 and Oc-
tober 3rd, (November 3rd) he received a fax from an employee
that outlined a schedule change creating the second and third
shift. That led to the series of letters to which I have just re-
ferred. He testified further that from September 1st to October
(November) 3rd, no discussions concerning scheduling changes
were had. At the October (November) 3rd bargaining session,
the Union presented a complete, contract package to Respon-
dent. Many provisions had been taken from the nurses’ unit
bargaining agreement. This proposal included Article 9, entitled
Hours of Work. and Article 4, entitled Seniority which is a
proposal for a bidding selection process; and an “on call” pro-
posal. in Article 6. This proposal included the above three con-
tract articles. There was no discussion about specific items of
this proposal. Zomok testified that he did not have any differ-
ence of opinion with respect to Scott’s recollection of that
meeting. There was some discussion of management rights
because of the Respondent's concern of problems in the nurses’
contract and Respondent was seeking to strengthen the man-
agement rights provision, but did not offer any contract lan-
guage in that regard.
Scott specifically testified that in his conversation of Au-
gust 30th with Zomok, he had told Zomok that if they were
making substantial scheduling changes, this was a mandatory
subject of bargaining and they needed to bargain.
Barry Hurley, a 26 year employee, employed as a craftsman
in the Engineering Department, also known as the power plant
and the Facility Services Department, testified. He maintains
pneumatic systems and various equipment, and has other re-
sponsibilities. Prior to August 9, 2000, he worked a seven-day
on call schedule from 4 p.m. to 7:30 a.m. as did many other
employees. He volunteered in late July, 2000, or August 2000,
after some discussion which had been initiated by his manager,
Rick Jones, to take a shift in the afternoon. He talked with his
wife and he talked with John Spencer, the director of Facilities,
and they did talk about eliminating “on call” pay for the de-
partment. They gave him a document and asked him to look at
it. In early September, this schedule was changed again. In
early August Hurly spoke to Spencer because he was encoun-
tering difficulties with his family in working the new revised
hours, and told them that he wanted to work from 12 a.m. to 8
p.m. in September, as they had agreed.
Hurly testified that in an October meeting, Spencer told em-
ployees that shift changes were going to be made and that this
INDIAN RIVER MEMORIAL HOSPITAL 473
was a management decision. An employee at that meeting
asked whether the employees had anything to say about it and
Spencer told them they did not. The target date for the shift
changes was December 4. There was no reference made to the
Union during that discussion. The new shift changes, were
passed out at that meeting. This was a new schedule. On call
work was eliminated other than for Saturdays and Sundays.
Zomok, has been Director of Human Resources since Octo-
ber 1999. He testified regarding his responsibilities at the hos-
pital and regarding discussions which were held by the various
directors of the hospital, and that they formed a committee
along with the Director of Facilities and himself, to consider
cost cutting measures. In late 1999, and in February, 2000, they
considered the issue of on call pay.
Respondent’s Exhibit 2 is an e-mail from Spencer to Zomok
sent on February 28, 2000 In that e-mail, Spencer suggests that
they look at the third and fourth quarters of the oncoming year
to tell the employees, at that time, what will happen with the
new budget year. He states in his E-mail “We can do what we
have on spreadsheets, Page 2, at that time. Later, we can qual-
ify a group of people to rotate in taking call, and have only one
person on call at a time . . . .” He ended this memo with the
statement “let's talk BIG TIME about this before we do any-
thing.” Attached to that e-mail was a Facility Services engi-
neering on call pay study, and it showed the existing engineer-
ing and some changes that they were considering.
Zomok testified that on August 30, Scott called him and in-
formed him that there were schedule changes posted in the
Maintenance Department, and he told Scott he would check this
matter out and get back to him, which he did. The General
Counsel objected to the lack of the response to its subpoena for
records of the committee, which were not furnished, and asked
that I draw an adverse inference from this, and as I stated at the
hearing I will do so.
John Spencer testified he is The Director of Facilities, and is
a contract employee of the Service Management Corp., which
is directed to manage the business of Respondent with respect
to its Facility Services. He has held this position since Septem-
ber of ’99. He reviewed staffing and costs, including labor,
overtime and on call pay. He testified that the February 28,
2000 e-mail he sent to Zomok was his decision as to how to
handle this problem. He does not have any recollection of, nor
did he create any additional document specifically ordering
these changes.
ISSUES
Respondent states in its brief that there are three principle is-
sues, A) whether Respondent made the decision to end on call
pay and institute a second and third shift in the Maintenance
Department prior to the existence of a bargaining obligation; B)
whether Respondent was obligated to bargain with the newly
recognized Union after making the decision to institute addi-
tional shifts, but prior to the complete implementation of the
shifts; and, C) if the Board finds Respondent was obligated to
bargain, whether the hospital refused.
My answer to issue A is in the negative. My answer to is-
sues B and C is in the affirmative. I ind the Respondent had an
obligation to bargain with respect to the shift changes and the
on call pay changes, as it had not made a final decision as of
February 2000. Nor had it made a final decision as of June,
July, or August 9, 2000. I find the documentation clearly
shows, as does the unrefuted testimony of Union Business
Manager Scott, that the Union made a bona fide demand for
bargaining on these issues, and that the Respondent did not
afford it notice and opportunity to bargain, and ultimately did
not bargain with it prior to the implementation of these
changes.
I find that the letter of the 15th sent by Scott to Zomok
clearly was a request to bargain. Although it did not say spe-
cifically that the Union was requesting bargaining, It informed
Zomok that Respondent had a mandatory obligation to bargain
concerning the schedule changes and threatened to file charges
with the NLRB if the changes were not rescinded. The Re-
spondent did not rescind these changes.
In NLRB v. Benny Katz, d/b/a Williamson Steel Products,
369 U.S. 736, 1962 the Supreme court, held that an employer
violates its duty to bargain if when negotiations are sought or
are in progress, it unilaterally institutes changes in existing
terms and conditions of employment.
With respect to mandatory subjects of bargaining, the Board
held in Miami System Corp., 320 NLRB 71, 1995, that the
elimination of a shift is a mandatory subject of bargaining,
since mandatory subjects of bargaining include wages and un-
derlying hours, and other terms and conditions of employment.
With respect to unilateral changes, it is well-settled that an
employer is obligated to maintain the status quo during the
initial bargaining with a newly certified union. General Motors
Acceptance Corporation, 196 NLRB 137, enforced 476, F.2d
850, CA1, 1973.
In Peerless Food Products, Inc., 236 NLRB 161, the Board
noted that not every unilateral change constitutes a breach of
the bargaining obligation. The change unilaterally imposed
must be a material, substantial, and a significant one. And I
find in this case that these changes were material, substantial,
and significant.
In Our Lady of Lords Health Center, 306 NLRB 337, 1992,
the Board held that where a union is newly recognized or certi-
fied as the employees’ bargaining representative, the employer
must maintain in effect the current terms and conditions of
employment until negotiations result in either an agreement on
any proposed changes or bargaining impasse. See also Bryant
and Stratton Business Institute, 321 NLRB 1007, 1017-1018,
1995.
In Lady of Lords Health Center the Board held that where
the employer contends that it is merely continuing the status
quo that existed at the time of the union's certification by rely-
ing upon a particular expired contract term in that case, a mere
continuation of the status quo does not occur when the em-
ployer has a significant degree of discretion and continues and
works on a matter that is a work in progress rather than main-
tenance of the status quo.
In the instant case before me the newly certified labor union,
which had not yet achieved a bargaining agreement, had the
right to bargain on any actions that the employer may take that
may have an effect on the hours, and terms and conditions of
employment. I have issued the bench decision in accordance
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 474
with the authority of Section 102.35(a)(10) of the Board's Rules
and Regulations. Upon my return to the office and receiving
the transcript, which is due within 10 days, I will attach the
transcript to a more formal Board order, in which I will award
the remedy and an order, and I will prepare a notice to be at-
tached to that.
The time for the filing of exceptions will start to run from the
date that I issue my decision is issued in that regard. Is there
anything further before I close the hearing?
MR. JOHNSON: Not from the Respondent, Your Honor.
MR. MANUEL: Nothing from the General Counsel.
JUDGE CULLEN: All right. The hearing is now closed.
(Whereupon, at 5:45 p.m., the hearing in the above-entitled
matter was concluded.)