Indiana Hospital

National Labor Relations Board - Board Decisions

Nov 25, 1994

315 N.L.R.B. 647 (N.L.R.B. 1994)

647
315 NLRB No. 87
INDIANA HOSPITAL
1 On February 8, 1993, the Board issued an unpublished Decision
and Order in Case 6–CA–24965 finding that by refusing to bargain
with the Union, certified in Case 6–RC–10615 on September 30,
1992, the Respondent had engaged and was engaging in unfair labor
practices within the meaning of Sec. 8(a)(5) and (1) of the Act. Sub-
sequently, the Respondent filed a petition for review of the Board’s
Order with the United States Court of Appeals for the Third Circuit,
and the Board filed a cross-application for enforcement.
In an opinion dated November 26, 1993, the court denied enforce-
ment of the Board’s Order and remanded the case to the Board for
further proceedings. 10 F.3d 151 (1993). The Board accepted the
court’s remand and, on May 11, 1994, ordered a hearing before an
administrative law judge on the issues remanded by the court. The
judge issued his supplemental decision on August 11, 1994, re-
affirming the prior finding of an 8(a)(5) violation, and on September
22, 1994, in the absence of any exceptions, the Board adopted the
judge’s findings and conclusions.
2 No exceptions were filed to the judge’s dismissal of the allega-
tion that the Respondent violated Sec. 8(a)(5) and (1) of the Act by
changing the job description of the position of lead groundskeeper
and by changing its policy regarding the release of information to
employees.
3 The General Counsel and the Respondent have excepted to some
of the judge’s credibility findings. The Board’s established policy is
not to overrule an administrative law judge’s credibility resolutions
unless the clear preponderance of all the relevant evidence convinces
us that they are incorrect. Standard Dry Wall Products, 91 NLRB
544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully
examined the record and find no basis for reversing the findings.
In adopting the judge’s finding that the Respondent violated Sec.
8(a)(3) and (1) of the Act by discriminatorily forbidding nonpower-
house employees from taking their lunch or other breaks in its pow-
erhouse building, we find it unnecessary to rely on the judge’s dis-
cussion of a regulation under the Occupational Safety and Health
Act.
1 All dates are in 1992 unless otherwise indicated.
2 The Respondent’s name appears as corrected at the hearing.
Indiana Hospital, a wholly owned subsidiary of In-
diana Health Care Corporation and Inter-
national Union of Operating Engineers, Local
95-95A, AFL–CIO. Cases 6–CA–24546, 6–CA–
24604, 6–CA–24609, 6–CA–24831, 6–CA–24853,
and 6–CA–25057–1
November 25, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
On January 13, 1994, Administrative Law Judge
Leonard M. Wagman issued the attached decision.1
The Respondent filed exceptions and a supporting brief
and the General Counsel filed limited exceptions and
a supporting brief.2 The Respondent and the General
Counsel filed answering briefs, and the Respondent
filed a reply brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,3 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Indiana Hospital, a wholly
owned subsidiary of Indiana Health Care Corporation,
Indiana, Pennsylvania, its officers, agents, successors,
and assigns, shall take the action set forth in the Order.
Stephanie E. Brown, Esq., for the General Counsel.
James B. Brown, Esq. (Cohn & Grigsby), of Pittsburgh,
Pennsylvania, for the Respondent.
Timothy P. O’Reilly, Esq. (O’Brien, O’Reilly & Finkel), of
Pittsburgh, Pennsylvania, for the Charging Party.
DECISION
STATEMENT OF THE CASE
LEONARD M. WAGMAN, Administrative Law Judge. This
case was tried at Indiana, Pennsylvania, on March 16–17 and
April 19–20, 1993.1 The charge in Case 6–CA–24546 was
filed May 12, in Case 6–CA–24604 on June 5 (amended July
2), in Case 6–CA–24609 on June 8, in Case 6–CA–24831 on
August 28 (amended October 16), in Case 6–CA–24853 on
September 4 (amended October 16), and in Case 6–CA–
25057–1 on November 18. A complaint consolidating all the
enumerated cases was issued January 26, 1993.
The consolidated complaint alleged that the Respondent,
Indiana Hospital, a wholly owned subsidiary of Indiana
Health Care Corporation2 (the Hospital), had violated Section
8(a)(3) and (1) of the National Labor Relations Act (29
U.S.C § 151 et seq.) by changing the work schedules of its
maintenance employees, changing the work schedules of its
employees Charles P. Huston and Thomas G. Shaffer, pro-
hibiting its employees from taking lunch and breaks in its
powerhouse, by issuing an evaluation to employee David
Smith criticizing his attitude and work record, and by issuing
a verbal warning to Smith.
The consolidated complaint also alleged that the Hospital
by unilaterally changing the work schedules, prohibiting its
employees from taking lunch and breaks in the powerhouse,
unilaterally changing the job description of its lead
groundskeeper, unilaterally changing its policy regarding as-
signment of snow removal duties, and unilaterally changing
its policy regarding the submission of information requests,
all at a time when it had a duty to bargain with the Union
about these matters, and by refusing to furnish information
requested by the Union, the Hospital violated Section 8(a)(5)
and (1) of the Act. The Hospital has answered, denying com-
mission of the alleged unfair labor practices.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel and the Hospital, I make the
following
648 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 On November 26, 1993, the United States Court of Appeals for
the Third Circuit denied enforcement of the Board’s Decision and
Order, and remanded the case to the Board for further proceedings.
To this date, the Board has not disturbed the certification. However,
on December 6, 1993, I received counsel for the General Counsel’s
motion to hold these cases in abeyance pending the disposition of
the underlying representation proceeding, Neither the Hospital nor
the Union have responded to this motion.
Having considered the motion, noting that the certification remains
extant, and after considering the possibility that I may retire or be-
come incapacitated during the pendency of the proceedings before
the Board, I have decided to deny the motion and issue my decision
in these cases. By this action, I seek to expedite these cases and pro-
tect the parties from the expense of a new trial before another ad-
ministrative law judge.
FINDINGS OF FACT
I. JURISDICTION
The Hospital, a Pennsylvania corporation with office and
place of business at Indiana, Pennsylvania, has been and is
engaged as a health care institution in the operation of an
acute care hospital providing inpatient and outpatient medical
and professional services for the public. During the 12-month
period ending April 30, the Hospital in conducting it busi-
ness operations derived gross revenues exceeding $250,000.
During the same 12-month period, the Hospital in conducting
its business operations purchased and received at its Indiana,
Pennsylvania facility goods valued in excess of $50,000 di-
rectly from points outside the Commonwealth of Pennsyl-
vania. The Hospital admits, and I find, that it is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act and that the Union is a labor organi-
zation within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background and Issues
On September 19, 1991, the Union won a Board-held elec-
tion in the following appropriate unit of the Hospital’s main-
tenance employees by a margin of 17 to 3:
All full-time and regular part-time skilled maintenance
employees, including biomedical technicians, operating
engineers, lead operating engineer, carpenters, elec-
tricians, painters, plumbers, HVAC mechanics, mainte-
nance mechanics, preventive maintenance employees,
lead groundskeeper, parts room clerk and engineering
and maintenance department secretary employed by the
[Hospital] at its facility located in Indiana, Pennsyl-
vania; excluding all business office clerical employees,
all technical employees and guards, professional em-
ployees and supervisors as defined in the Act and all
other employees.
On September 26, 1991, the Hospital filed timely objec-
tions to conduct affecting the results of the election. On Oc-
tober 31, 1991, the Regional Director for Region 6 issued a
supplemental decision on objections recommending that all
of the Hospital’s objections be overruled. On September 30,
the Board certified the Union as the collective-bargaining
representative of maintenance unit described above.
On October 31, 1991, the Union, by letter, notified the
Hospital that it was ready to begin negotiations for a contract
covering the unit described above, and asked for a meeting.
The Hospital rejected the request and asserted its intent to
‘‘exhaust all of its rights under the National Labor Relations
Act.’’ A union letter dated April 7, addressed to the Hos-
pital’s president, Donald D. Sandoval, requesting a meeting
with a hospital representative, elicited a rejection letter, dated
August 13, from the Hospital’s counsel. Counsel’s ground
for rejecting the Union’s request was ‘‘the absence of a valid
certification.’’
On December 1, the General Counsel issued a complaint
in Case 6–CA–24965, alleging that since October 14, the
Union had requested the Hospital to bargain, and that the
Hospital had refused. The Hospital answered, admitting
some, and denying other, allegations in the complaint. The
General Counsel filed a Motion for Summary Judgment. The
Board granted the motion in Indiana Hospital, 310 NLRB
No. 50 (Feb. 8, 1993) (not reported in Board volumes), find-
ing that the Hospital’s refusal to bargain violated Section
8(a)(5) and (1) of the Act.3
The issues presented include whether the Hospital, in reac-
tion to the bargaining unit’s selection of the Union as their
collective-bargaining representative by a vote of 17 to 3, vio-
lated Section 8(a)(3) and (1) of the Act by:
1. Issuing an evaluation to David Smith which criticized
his attitude and performance.
2. Issuing a verbal warning to David Smith.
3. Changing its maintenance employees’ work schedules.
4. Changing Charles P. Huston’s and Thomas G. Shaffer
Sr.’s work schedules.
5. Prohibiting its maintenance employees from taking
lunch and breaks in its powerhouse.
Further issues presented in these case are whether the Hos-
pital, by the following unilateral conduct, violated Section
8(a)(5) and (1) of the Act:
1. Changing the job description of the lead groundskeep-
er’s position.
2. Changing its policy regarding the submission of infor-
mation requests.
3. Changing its policy regarding assignment of snow re-
moval duties.
4. Changing the maintenance employees’ work schedules.
5. Changing Charles P. Huston’s and Thomas G. Shaffer’s
respective work schedules.
6. Prohibiting its maintenance employees from taking
lunch and breaks in its powerhouse.
The final issue presented is whether the Hospital violated
Section 8(a)(5) and (1) of the Act by refusing to furnish the
Union with requested information relevant to the Union’s du-
ties as the collective-bargaining representative of the employ-
ees in the bargaining unit.
B. The Alleged Discrimination Against David Smith
David Smith, the Hospital’s lead operating engineer, has
been in its employ for 6 years. At all times material to this
case, Smith worked under the supervision of Daniel J.
Severin, the Hospital’s director of facilities. In his testimony
before me, Severin conceded that Smith was a good em-
ployee and that he never had any problem with the quality
of Smith’s work. Severin flatly asserted, on direct examina-
tion that ‘‘Mr. Smith was and is a very good employee.’’ In
the course of further direct examination, Severin extolled the
649INDIANA HOSPITAL
4 I based my findings regarding the mid-May conversation between
Severin and Smith, on the latter’s uncontradicted testimony.
quality of Smith’s job performance ‘‘over the years’’ testify-
ing that: ‘‘His evaluations have always been, and continue to
be good.’’
Smith was an active union supporter in the campaign lead-
ing up to the election on September 19, 1991. In November
1991, the bargaining unit employees elected Smith as their
shop steward. On November 21, 1991, the Union, by letter,
advised the Hospital that David Smith was the bargaining
unit’s shop steward. However, the General Counsel’s only
witness regarding the matter, Union Representative James F.
Carpenter, conceded on cross-examination that the Hospital
never indicated that it had received this letter. Nor did he
have any independent recollection of either having mailed the
letter or of advice from anyone that it was mailed to the
Hospital. David Smith received a carbon copy of the letter
by mail, from the Union. For its part, the Hospital presented
no testimony showing that it had not received this letter.
Although the record may not show that it ever received the
Union’s letter announcing Smith’s election as shop steward,
the Hospital and Severin had been aware since September
19, 1991, that an overwhelming majority of the bargaining
unit, which included Smith, had voted for the Union. Indeed,
on cross-examination, Severin admitted that he was aware of
the election and its results in September 1991.
On April 10, the Pennsylvania Department of Environ-
mental Resources (DER) unexpectedly inspected Severin’s
waste-burning procedure. DER found that Severin was burn-
ing red bags containing 100-percent infectious waste instead
of a 50-50 mixture of infectious and noninfectious waste, as
required under the license it had issued to the Hospital. DER
cited the Hospital for violation of the latter’s burning permit.
The unexpected appearance of DER annoyed Severin to the
point that he complained to his employees.
In mid-May, Severin, in a conversation with Smith, ex-
pressed anger at the recent DER inspection and at an inspec-
tion by the Federal Occupational Safety and Health Adminis-
tration (OSHA). Severin believed that an individual had
called those agencies. Smith assured him that the Union had
made the calls. Severin rejected Smith’s assertion, insisting
that the informer was an employee. Complaining angrily that
he was under a microscope, Severin warned that all of his
maintenance employees would also be under a microscope.
He also said that if he could, he would change all of their
work schedules.4
On June 23, Smith received his 1992 evaluation from
Severin. At this juncture, Smith, for the first time, identified
himself to Severin as the Union’s shop steward for the bar-
gaining unit. The evaluation showed that in performance of
his principal responsibilities and pursuit of specific goals,
Smith exceeded the Hospital’s standards. Indeed, Severin in-
dicated on the evaluation that Smith’s general traits, job ap-
plication, overall planning and relationship with subordinates,
all exceeded the Hospital’s standards. However, in the
‘‘comments’’ section of the evaluation, Severin wrote:
Dave needs to work to maintain a positive attitude and
try not to allow outside influences to effect his good
record and working relationships.
At the time he discussed this evaluation with Smith, Severin
neglected to explain what he meant by outside influences.
Nor did Severin advise Smith to keep other maintenance de-
partment employees from distracting him from his own work.
However, before me, Severin offered the following expla-
nation of the comment:
Dave is such a good employee and a good coordinator
that many of the people from other areas of the depart-
ment were going to get him to assist them with their
work and what I attempted to do here, since Dave was
such a good employee, was to tell him you can’t be all
things to all people, you have to concentrate on your
job first and let other people do their own work in
order to maintain your good record.
When asked if he considered the comment on Smith’s
evaluation to be negative, Severin testified: ‘‘No I didn’t
even consider it as criticism, I considered it as a caution to
him that to continue to do the excellent work you have been
doing, you must make sure that you concentrate on your
work first and not someone else’s.’’
I asked Severin to explain what he meant by ‘‘maintain a
positive attitude’’ and he responded: ‘‘Okay, it was my feel-
ing that if the man was trying to do not only his job, but
somebody else’s job it couldn’t help but drag his work down
and cause him to lose the positive attitude that he maintained
in his work.’’
Once again, the Hospital’s counsel, asked Severin whether
his written comment was negative. Severin answered: ‘‘There
was no negative comment. He had exceeded standards in all
areas on this.’’ On further direct examination, Severin point-
ed out his other laudatory comments elsewhere in the 1992
evaluation.
The Hospital’s counsel asked Severin how his praise
squared with the allegedly critical comment. Severin an-
swered: ‘‘Well, like I say he was a good worker and he had
a good positive attitude and I wanted to make sure that he
stayed that way.’’
The General Counsel urges a finding that by including a
critical comment regarding Smith’s attitude and work record,
the Hospital was rebuking him because he supported the
Union, and thereby violated Section 8(a)(3) and (1) of the
Act. The Hospital argues that comment of which the General
Counsel complains was not unlawful because it was not a
negative comment. Smith testified that he considered
Severin’s comment to be negative. I find ample factual sup-
port for the General Counsel’s contention.
Section 8(a)(3) of the Act prohibits employer ‘‘discrimina-
tion in regard to tenure of employment or any term or condi-
tion of employment to discourage membership in any labor
organization.’’ It is well settled that an employer violates
Section 8(a)(3) and (1) of the Act by taking adverse person-
nel actions against employees, or by downgrading their eval-
uations because they support unionization. NLRB v. Tamper,
Inc., 522 F.2d 781, 787–788 (4th Cir. 1975); NLRB v. Amber
Delivery Services, 651 F.2d 57, 68–69 (1st Cir. 1981); Cir-
cuit-Wise, Inc., 306 NLRB 766 (1992).
To establish such a violation here, the General Counsel
was required to make a prima facie showing sufficient to
sustain the inference that union activity was a motivating
factor in the Hospital’s inclusion of the alleged adverse com-
ment in Smith’s 1992 evaluation. If the General Counsel sat-
650 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
isfied that requirement, the inclusion of that comment, as-
suming it was negative, must be found unlawful unless the
Hospital has shown, as an affirmative defense, that it would
have placed that comment in his evaluation even in the ab-
sence of his union activity. NLRB v. Transportation Manage-
ment Corp., 462 U.S. 393, 402–403 (1983), affg. Wright
Line, 251 NLRB 1083 (1980), enfd. on other grounds 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982).
If the record shows that the work-related reason advanced
by the Hospital was pretextual—that is, that the reason either
did not exist or was not in fact relied on—it necessarily fol-
lows that the Hospital has not met its burden and the inquiry
is logically at an end. Wright Line, 251 NLRB at 1084. Ap-
plying this formula, I am satisfied that the Hospital has re-
sorted to a pretext in its effort to discourage Smith from en-
gaging in activity on the Union’s behalf.
Contrary to the Hospital’s position, I find that Severin’s
comment, suggesting that an ‘‘outside influence’’ is eroding
Smith’s ‘‘positive attitude’’ and threatening his ‘‘good record
and working relationships,’’ was negative. The message in
Severin’s comment amounts to a warning. The phrase ‘‘Dave
needs to work to maintain a positive attitude’’ suggests either
that on one or more occasions in 1992, Smith did not have
a positive attitude, or that the writer perceives some factor
which may have a harmful impact on Smith’s positive atti-
tude. The remaining language, ‘‘and try not to allow outside
influences to affect his good record and working relation-
ships’’ suggests either that on one or more occasions during
the evaluation period, some ‘‘outside influence’’ detracted
from his work performance or harmed his relationships with
fellow employees or with one or more supervisors, or that
the writer fears that some factor outside the workplace may
have that effect in the future.
According to Severin, Smith ‘‘was trying to do not only
his job, but somebody else’s’’ and that conduct ‘‘couldn’t
help but drag his work down and cause him to lose the posi-
tive attitude that he maintained in his work.’’ Counsel for the
General Counsel argues that the records shows that Smith’s
union activity provoked Severin to write the negative com-
ment.
There can be little doubt that Smith was an active union
supporter. In 1991, prior to the representation election, Smith
campaigned for the Union. He visited fellow employees at
their homes and solicited their support. The Union won the
election on September 19, 1991, by a count of 17 to 3. The
bargaining unit employees elected him their shop steward, 2
months after the election. At the time he wrote the comment
in Smith’s 1992 evaluation, Severin was aware of the
Union’s victory, and he knew that the vote had been 17 to
3. Against this backdrop, Severin’s reference to ‘‘outside in-
fluences’’ strongly suggested that he used those two words
as code for ‘‘the Union.’’ I find therefore, that at the time
he wrote the critical comment, Severin was probably aware
that Smith was a union activist. However, I find that Severin
was at least worried that Smith would support the Union.
In an effort to explain what he meant by outside influ-
ences, Severin testified that by outside influences, he was re-
ferring to ‘‘people from our department.’’ According to
Severin’s further testimony, Smith was helping these people
with their work. When counsel for the General Counsel re-
minded him that these people were ‘‘not outside the depart-
ment,’’ Severin answered that they were ‘‘outside of
[Smith’s] area.’’ In sum, employees asking leadman Smith
for help in performing the work of the Hospital’s mainte-
nance department were the outside influences. Thus, accord-
ing to the Hospital and Severin, employees, who work in the
maintenance department, but are located beyond an unde-
fined space designated as Smith’s area, are outside influ-
ences. Looking at common usage, I find it difficult to believe
that Severin truly considered his own employees to be out-
side influences. This distorted explanation of Severin’s mean-
ing, when he used outside influences, evidenced an effort to
camouflage his real intention.
I also find that Severin’s asserted fear, that Smith was
helping other employees, excessively has not been borne out
by record evidence. Thus, aside from Severin’s assertions in
his testimony, the Hospital has not shown either the fre-
quency of such conduct or the effect of such conduct by
Smith on either his performance, his attitude, or on his rela-
tionships with other hospital employees.
In sum, I find that Severin’s resort to a distorted expla-
nation of what he meant by outside influences left the Gen-
eral Counsel’s prima facie case unrebutted. Moreover, by re-
sorting to such a contrivance, Severin bolstered the General
Counsel’s showing that the quoted phrase meant ‘‘the
Union.’’ Severin’s rejected explanation impaired his credibil-
ity enough to compel me to reject his denial that union activ-
ity had anything to do with the comment in Smith’s 1992
evaluation. Severin’s unsubstantiated fear, that Smith was
helping other employees excessively, dealt the final blow to
the Hospital’s explanation. Accordingly, I find that when he
placed the critical comment in Smith’s 1992 evaluation,
Severin discriminated against Smith with the hope that he
would abandon the Union. I further find therefore, that by
this conduct, the Hospital violated Section 8(a)(3) and (1) of
the Act.
In late August, Dave Smith approached the Hospital’s as-
sistant director of facilities, Norman Thiel, and began to dis-
cuss the Union’s request for information. Smith asked if
Thiel could get in touch with the Hospital’s vice president,
Dominic Paccapaniccia, and find out when the information
would be forthcoming. Later, that same day, Smith con-
fronted Thiel and pressed him about the Union’s information
request. Thiel said he had not contacted the vice president,
who was probably very busy, and that Smith would receive
the information when the management was ready to give it.
Smith complained that the Hospital was stalling and threat-
ened to file an unfair labor practice charge with the Board.
Theil suggested that Smith carry out his threat, adding that
the Hospital would be happy to hear from him. Theil also
said he would report Smith’s announced intention to the
Hospital’s chief executive officer.
On September 2, Smith worked the day shift in the Hos-
pital’s powerhouse. His shift ended, at 3:30 p.m. Smith
punched the timeclock at approximately 3:40 p.m., and
walked through the powerhouse, on his way to his parked
automobile. He came on steam blowing out of a valve, on
which he had just finished working with the afternoon shift
engineer, Joe Yagle. Smith saw this as ‘‘basically an emer-
gency situation,’’ and decided to help Yagle.
Smith concluded that the situation was too much for Yagle
to manage alone. There was a safety hazard. The steam was
under 120 pounds of pressure at 340 degrees fahrenheit. Fur-
ther, if Smith and Yagle could not isolate or shut down the
651INDIANA HOSPITAL
5 My findings regarding Smith’s overtime work, and the cir-
cumstances under which he performed it, are based on Smith’s and
Yagle’s uncontradicted testimony.
6 I based my findings regarding Thiel’s report and Severin’s failure
to investigate the incident, on the latter’s uncontradicted testimony.
malfunctioning valve, they would be obliged to shut down
the Hospital’s boilers. This last step would have left the Hos-
pital without any steam. Yagle also believed that he needed
assistance and that the Hospital’s steam supply was in jeop-
ardy. There was a general maintenance employee assigned to
the afternoon shift, but he was not present in the power-
house. Yagle did not know where the general maintenance
employee was. When Smith offered to help, Yagle quickly
accepted.
Smith and Yagle, working together, alleviated the threat to
the Hospital’s steam supply and the danger posed by the
malfunctioning valve. By the time they had resolved the
problem so that Yagle could safely return to work by him-
self, 15 to 20 minutes had elapsed and it was now approxi-
mately 4 p.m.
As Smith prepared to leave the powerhouse, a supervisor,
Assistant Director of Facilities Norman Thiel, arrived. He
asked what Smith was doing and asserted that Smith was not
on authorized overtime. Smith replied that he was not wor-
ried about getting overtime. He explained the emergency, as-
serting that Yagle had needed help. On the night of Septem-
ber 2, Thiel did not discuss Smith’s unauthorized overtime,
with Yagle. Indeed, on and after that date, neither Thiel, nor
Severin, nor any other member of the Hospital’s manage-
ment, spoke to Yagle about the events of September 2.5
On the following morning, Thiel reported Smith’s unau-
thorized overtime work to Severin. Thiel did not provide de-
tails other than to report that he had seen Dave Smith
‘‘working down in the powerhouse after regular quitting
time.’’ No one ever told Severin about the faulty valve or
about the threat to the Hospital’s steam supply, which had
caused Smith to remain at work on September 2, after having
punched out. Severin did not investigate the circumstances
surrounding Smith’s decision on September 2 to work in the
powerhouse, after having punched out.6
Later, on September 3, at Severin’s direction, Thiel issued
a verbal warning to Smith for ‘‘working without being
punched in.’’ The warning also reported that ‘‘Dave [Smith]
was instructed he cannot be in any part of the hospital unless
visiting a patient or punched in.’’
The Hospital’s employee handbook, which has been in ef-
fect since 1990, provides that a reprimand or warning will
ordinarily serve as discipline for an employee who has per-
formed ‘‘unauthorized and unnecessary overtime.’’ In addi-
tion, the employee handbook includes the following:
REPORTING FOR WORK
All employees may report onto the Hospital’s prem-
ises fifteen (15) minutes prior to their scheduled start-
ing time and must depart the premises within fifteen
(15) minutes following the end of their scheduled work
shift
. . . .
Employees are permitted to enter the Hospital or to
remain on the premises only if they are on duty, sched-
uled to work, visiting a patient, waiting for transpor-
tation, eating a meal prior to the start of their shift, or
otherwise requested to report by Administration.
The employee handbook declares that ‘‘overtime must be
authorized by the Department Manager or Supervisor prior to
the end of the shift.’’ The same handbook also states that the
Hospital ‘‘has the right to schedule employees to work over-
time when the needs of the Hospital make such requirements
necessary.’’
On March 30, Severin issued a memorandum to ‘‘All En-
gineering & Maintenance Employees’’ regarding overtime
and shift schedule changes. In his testimony before me,
Severin explained that this memorandum was ‘‘just a rein-
forcement of the existing policy and a better explanation to
the employees of how to mark and manage their time on the
timecard.’’ This memorandum did not contain any warning
of discipline. Severin viewed the proper marking of time-
cards as a means of both controlling the number of hours
worked by his employees and of making certain that employ-
ees are paid as required by Federal wage and hour regula-
tions.
Despite the Hospital’s policy regarding overtime, for the
6 years he has worked in its powerhouse, Smith has worked
from 6 a.m. until his shift begins, at 7 a.m., without punch-
ing in. During that hour, he confers with night-shift employ-
ees and checks over the status of the boilers, chillers, and
other powerhouse components, for which he is responsible.
There is no evidence that Severin, Thiel, or any other mem-
ber of the Hospital’s management knew of Smith’s practice
prior to September 3. Indeed, Smith has regularly parked his
car some distance from the powerhouse, and walked to it, in
an effort to avoid observation by supervision. However, I
find from Smith’s and Severin’s testimony, that, prior to Sep-
tember 3, Severin had verbally warned Smith not to work off
the clock.
In March, Severin warned employee Al Winters ‘‘that he
must punch in and out at the correct time.’’ I find from
Severin’s testimony that he gave this warning because Win-
ters ‘‘had been punching in a couple minutes early on a reg-
ular basis.’’
Smith has also worked off the clock, during his off-duty
hours, when on-duty employees have telephoned him with
requests for emergency help. On those occasions, Smith went
to the Hospital’s powerhouse took care of the emergency and
returned home, without clocking in or claiming overtime pay.
With one significant exception, there was no showing that
any member of supervision was aware of any of these epi-
sodes.
As lead operating engineer, Smith considers helping in
emergencies to be part of his job. Smith’s job description
and his evaluations for 1991 and 1992 show that one of his
responsibilities is to assist the Hospital’s engineering and
maintenance department ‘‘when necessary to protect the safe-
ty and welfare of the patient, staff, and facilities.’’
Prior to the incident on September 2, the Hospital did not
discipline Smith for working off the clock in emergency situ-
ations. One such incident occurred in 1991, during the after-
noon shift, when Smith, although off duty, helped after a
transformer had blown up, and the Hospital’s electrical sup-
ply was threatened. Severin thanked him for his effort. Smith
did not seek overtime for this work, and the Hospital did not
pay him for it. In his testimony before me, Severing asserted:
652 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
‘‘I would always commend people for coming out either on
overtime or on extra time to assist and help us anytime we
have an emergency situation.’’
Counsel for the General Counsel contends that the record
shows that the Hospital imposed the verbal warning of Sep-
tember 3 on Smith as punishment for his union activity. The
Hospital argues that the record shows that union activity had
nothing to do with the verbal warning; that Severin was only
enforcing a hospital policy. Applying the Board’s doctrine
set out in Wright Line, 251 NLRB at 1084, I find ample
ground for the General Counsel’s contention.
In June, Severin showed his hostility toward the Union,
when he warned Smith about outside influences in a negative
comment, in Smith’s annual evaluation. However, on the
very day on which Severin showed him his annual evalua-
tion, with its thinly disguised warning about involvement
with the Union, Smith defied the warning. He announced to
Severin that he, David Smith, was the Union’s shop steward.
In late August, Smith, acting as shop steward, confronted
Severin’s assistant, Norman Thiel, and pressed him about
some information which the Union was seeking from the
Hospital. Thiel’s sarcastic retorts suggested that he was at
least annoyed by Smith’s pressure.
On September 2, a few days after their unfriendly encoun-
ter, Thiel and Smith again met at the Hospital. This time,
Thiel discovered Smith working off the clock. Thiel, at
Severin’s direction, 1 day later, issued a written warning to
Smith for working off the clock. This warning followed in
the wake of Smith’s report to Thiel on September 2, that an
emergency had required him to assist employee Joe Yagle.
Smith was the Hospital’s lead operating engineer and had re-
sponsibility for assuring its ability to perform its mission.
Yet, in the face of his claim that Yagle’s situation required
an immediate response, which left no time for clocking in,
Severin and Thiel decided to discipline Smith. Severin did
not investigate Thiel’s report and Thiel ignored Smith’s ex-
planation. It would seem reasonable to expect that Smith’s
status as lead operating engineer, and his exemplary work
record, both recognized by Severin, would have entitled him
to an opportunity to explain his deviation from the Hospital’s
overtime policy. Instead, Severin and Thiel decided to rep-
rimand Smith.
In assessing support for the General Counsel’s prima facie
showing, I find a considerable array of evidence. First, I note
the haste with which Severin and Thiel acted to discipline
Smith, who they knew was the Union’s shop steward. Fur-
ther, I have noted their failure to investigate his alleged mis-
conduct. Also considered, was the union animus exhibited by
the two supervisors, i.e., Severin’s negative comment in
June, and Thiel’s response to Smith’s request for information
in late August. Additional support for the General Counsel’s
case is found in the timing of the verbal warning, so soon
after Smith, acting as the Union’s steward, had annoyed
Thiel by pressing him for information and threatening to en-
force the union request by resort to the Board. In sum, I find
that the General Counsel has made a prima facie showing
that when the Hospital disciplined Smith on September 3, it
was motivated by hostility toward the Union and its support-
ers and a desire to discourage union activity among the Hos-
pital’s employees.
The Hospital argues that it disciplined Smith on September
3 because he violated its policy ‘‘in two respects.’’ First, ac-
cording to the Hospital’s brief, Smith failed to obtain author-
ization for the overtime he performed. Further, according to
the Hospital’s brief, Smith ‘‘failed to properly mark his time-
card and have his supervisor initial the card as required by
the policy.’’ I note that written verbal warning which Thiel
issued on September 3 says essentially the same thing. How-
ever, the Hospital’s employee handbook prescribed discipline
for ‘‘[p]erformance of unauthorized and unnecessary over-
time.’’ Thus, I find that the Hospital’s policy required that
Smith’s overtime be both unauthorized and unnecessary. Yet,
in their haste to deal with Smith, Severin and Thiel did not
have time to consider whether his overtime work was unnec-
essary. This neglect suggests that the two supervisors were
more interested in finding a pretext for disciplining Smith.
David Smith worked overtime off the clock on September
2, after he saw steam blowing out of a valve. He concluded
that this was an emergency requiring immediate action by
himself and employee Joe Yagle. Smith saw the escaping
steam as ‘‘a safety hazard.’’ I also find from his credited tes-
timony that, if he and Yagle had not acted as they did, the
Hospital would have lost all of its steam. For, as I find from
employee Yagle’s undenied testimony, Smith decided to act
when only one boiler was functioning. I further find from
Smith’s and Yagle’s convincing testimony that the faulty
valve jeopardized the Hospital’s capability.
Severin, the Hospital’s only witness on the topic, was not
present when Smith worked off the clock on September 2.
Severin admitted that the changing of a steam trap ‘‘could
be’’ an ‘‘emergency situation’’ but added that it ‘‘normally’’
was not. However, the record shows that Thiel only told
Severin that Smith had been off the clock, when he helped
Yagle change a steam trap on September 2. Severin did not
delve into Smith’s reasoning for taking that action on Sep-
tember 2. Instead, he checked Smith’s timecard, and, finding
no entry for the overtime on September 2, corrected it to re-
flect 1 hour, and thus made certain that Smith would be paid
for his overtime. Severin also authorized the written verbal
warning which Thiel prepared and signed. However, Severin
showed no interest in finding out if Smith had averted a bad
situation for the Hospital.
I have found that on September 2, when Assistant Director
Thiel caught Smith working off the clock and questioned
him, Smith explained that there was an emergency and that
Yagle needed help. I based these findings upon Smith’s
uncontradicted testimony. The source of possible contradic-
tion, Thiel, did not testify. That the Hospital has not ex-
plained its failure to call Thiel as a witness, leads me to sus-
pect that his testimony would have supported Smith’s testi-
mony in this regard.
Smith had extended himself to avert a serious breakdown
in the Hospital’s support system. Yet, Thiel did not praise
him and make the necessary entries to legitimize Smith’s
overtime. Instead, he reported to Severin that Smith had
worked off the clock, without authorization. Thiel’s refusal
to acknowledge Smith’s effort to protect the Hospital and its
patients suggests that Thiel was anxious to find a reason to
discipline the employee.
Severin’s reaction to Thiel’s report evidences a similar at-
titude toward Smith. Severin testified that he commends em-
ployees for working overtime, or extra time, to help the Hos-
pital in emergencies. He also conceded on cross-examination,
that in the presence of an emergency, he does not expect an
653INDIANA HOSPITAL
7 My findings regarding Shaffer’s and Huston’s use of the power-
house for lunchbreaks, are based on their testimony.
employee to take time to punch in before attacking the prob-
lem. Yet, on September 2 and 3, Severin ignored those prin-
ciples when confronted with Thiel’s report that Smith had
worked without having punched in at the timeclock. Con-
fronted by a report of misconduct by a valued, and highly
praised leadman, who had responsibility for the well-being of
the Hospital, Severin did not stop to get an explanation from
Smith, the alleged wrongdoer, or from anyone else. Instead,
Severin quickly instructed Thiel to discipline Smith. This ne-
glect to find out why Smith had worked off the clock on
September indicates that Severin was anxious to use that in-
cident as a pretext for issuing a verbal warning.
The Hospital argued in it brief that its fair dealing with
Smith was exemplified by its withholding of disciplinary ac-
tion when, without authorization, he turned over hospital
records to a governmental agency. However, in light of the
General Counsel’s prima facie showing and the Hospital’s
failure to rebut that showing, I find no merit in that argu-
ment. For, even if the Hospital might have had a valid basis
for punishing Smith for releasing its records, I have found
that the reason it chose on September 2 and 3 was not the
real reason for the written verbal warning which it issued to
him on the latter date.
In sum, I find that Severin and Thiel seized on David
Smith’s failure to punch a timeclock on September 2, as a
pretext for issuing a verbal written warning to him on Sep-
tember 3. I also find that the record leaves little doubt that,
the real reason for Severin’s and Thiel’s action was their
hostility toward Smith’s activity in support of the Union, as
its shop steward. Accordingly, I find that by disciplining
Smith with this written verbal warning, the Hospital violated
Section 8(a)(3) and (1) of the Act.
C. The Restrictions on Use of the Powerhouse for
Breaks and Lunch
Prior to June 5, and since that date, the Hospital has per-
mitted its maintenance employees to take a 15-minute break
from 9:30 to 9:45 a.m., and a lunchbreak from 11:30 a.m.
to noon. Also, prior to that date, the Hospital had permitted
maintenance employees to take breaks and have lunch at the
powerhouse, which is located some 200 yards from the Hos-
pital’s main building. The powerhouse may be reached from
the main building by a tunnel or by walking outside, around
the side of the main building. For the most part, the mainte-
nance and engineering department, including Severin’s of-
fice, is in the basement of the Iselin building, the older por-
tion of the Hospital. There are other work areas and rooms
in the Hospital, which Severin’s department uses.
I find from the testimony of employees John Colananni
and David Smith, who regularly lunched at the powerhouse,
that each workday, prior to June, several other employees
would also have lunch at the powerhouse. Until June 5, for
the 24 years he had been a hospital maintenance employee,
Thomas G. Shaffer Sr. regularly divided his lunchbreaks be-
tween the maintenance shop and the powerhouse. Plumber
John Huston, a hospital employee for 23 years, regularly
took his lunchbreak at the powerhouse until June 1992.7
Severin admitted that, prior to June 1992, he, too, occasion-
ally took a lunchbreak at the powerhouse.
On June 5, Severin posted a notice to the Hospital’s main-
tenance employees regarding ‘‘Break and Lunch Times.’’
The last paragraph announced a restriction on the use of the
powerhouse for lunchbreaks, as follows:
I have recently observed a number of non-powerhouse
employees using the Powerhouse for meals. The Power-
house has never been recognized for use as meal or
break area for anyone other than the power engineer on
duty, and I would therefore request that all non-power-
house employees comply with this understanding. As
always, the duty engineer may elect to take a break in
the Powerhouse or in the main Hospital.
Severin testified that the quoted restriction on the use of
the powerhouse for lunchbreaks had been the Hospital’s
‘‘unwritten’’ policy prior to June 5. However, the record is
bare of any evidence that Severin or any other hospital su-
pervisor ever verbalized that policy to any employee. Nor
was there any showing that prior to June 5, Severin, or any
other hospital supervisor, had interfered with any employee’s
use of the powerhouse for a lunchbreak. Neither Severin nor
any other Hospital supervisor gave the bargaining unit em-
ployees any explanation for the activation of this unwritten
policy.
The Hospital did not inform the Union of its intention to
activate this policy. Nor did the Hospital offer to bargain
with the Union before imposing this restriction on the bar-
gaining unit employees.
Since the posting of Severin’s notice, only the power engi-
neers on duty have used the powerhouse for their
lunchbreaks. The remaining employees in the maintenance
bargaining unit have refrained from eating lunch at the pow-
erhouse.
The General Counsel contends that Severin’s restriction on
the use of the powerhouse for meals and breaks, which he
promulgated on June 5, violated the Act. According to the
General Counsel, the evidence shows that Severin imposed
this stricture in reprisal for the maintenance employees’ se-
lection of the Union as their bargaining representative, and
thereby violated Section 8(a)(3) and (1) of the Act. The Gen-
eral Counsel also argues that by failing to notify the Union
of its intention to adopt Severin’s restriction, and by failing
to accord the Union an opportunity to bargain about the re-
striction, the Hospital violated Section 8(a)(5) and (1) of the
Act.
The Hospital denies that the employees’ support for the
Union played any part in Severin’s decision to enforce what
it characterizes as a standing policy. Instead, the Hospital as-
serts that Severin posted the restriction on June 5 because of
toxic conditions in the powerhouse and because he saw some
employees taking an excessive lunchbreak there.
Further, the Hospital argues, Severin’s posting of an exist-
ing restriction on use of the powerhouse for breaks and lunch
did not entitle the Union to either notice or an opportunity
to bargain. I find merit in the General Counsel’s contentions.
I find no merit in the Hospital’s assertion that the restric-
tion set out in Severin’s notice of June 5 to his maintenance
department was an expression of existing policy. Scrutiny of
Severin’s notice and his testimony shows his uncertainty as
654 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 Severin’s testimony did not contradict the testimony of the four
employees, who testified about this topic in a forthright manner.
However, when examined by counsel for the General Counsel,
Severin seemed annoyed and reluctant to concede that prior to June
5, a number of maintenance employees had used the powerhouse for
a lunchroom. Accordingly, where there was inconsistency between
Severin’s and their testimony, regarding the extent to which mainte-
nance employees used the powerhouse as a lunch area, and the Hos-
pital’s apparent attitude toward such use, prior to June 5, I have
credited the four employees.
to the substance of that policy. At the outset, I note that
Severin’s notice did not refer to any existing policy limiting
use of the powerhouse. Instead, Severin’s notice stated that
the powerhouse ‘‘has never been recognized for use as a
meal or break area for anyone other than the power engineer
on duty.’’ However, contrary to his notice of June 5, Severin
testified that there were occasions when maintenance em-
ployees participated in lunch time picnics outside the power-
house, when the weather was nice, and inside the power-
house, when the weather was bad.
Severin’s testimony also shows that he was less than dili-
gent about enforcing the unwritten policy. Thus, shortly be-
fore June 5, when he walked through the powerhouse with
a state inspector, Severin noticed five or six unidentified
maintenance employees eating lunch in the powerhouse and
did not stop to challenge them. Indeed, there was no showing
that prior to June 5, Severin or any other hospital supervisor
disciplined any maintenance for having lunch in the power-
house.
Credited testimony of employees Smith, Colonnani,
Huston, and Shaffer showed that for the 24 years before June
5, the Hospital permitted maintenance employees to have
lunch in the powerhouse. Their testimony also reflects that
several maintenance employees regularly took advantage of
that option.
Severin conceded that a few maintenance employees
‘‘may’’ have eaten lunch in the powerhouse, prior to June
5. He also admitted that on occasion, he had lunched in the
powerhouse.8 On cross-examination, Severin admitted that
the first time he told the maintenance employees about the
unwritten policy was in his written notice of June 5. I find,
contrary to the Hospital’s assertion and Severin’s testimony,
that until June 5, the Hospital had no policy, written or un-
written, governing the use of the powerhouse as a rest or
lunch area. I also find that Severin’s notice to the mainte-
nance employees on that date marked the imposition of a
new restriction on their use of the powerhouse for regular
breaks and lunchbreaks.
The Board has recognized that an employer’s imposition
of a ban on a longstanding employee practice, in retaliation
for its employees’ support for a union, violates Section
8(a)(3) and (1) of the Act. Murphy Oil USA, 286 NLRB
1039, 1043 (1987). Here, Severin instituted the restriction on
the maintenance employees’ use of the powerhouse for
breaks and lunch with knowledge that the overwhelming ma-
jority of them were union supporters. Severin imposed this
ban, without explanation to these employees, 2 weeks and 4
days before issuing his negative comment to Leadman Dave
Smith, in which he referred to the Union as ‘‘outside influ-
ences.’’ In this latter incident, Severin showed his willing-
ness to use his supervisory authority to discourage an em-
ployee from supporting the Union. I have also found that in
September, when he definitely knew of Smith’s tie with the
Union, Severin issued a written warning to him, in reprisal
for his union activity. Thus, I find that the General Counsel
has made a prima facie showing that Severin’s hostility to-
ward the Union was a motivating factor in his decision to
restrict use of the powerhouse for breaks and lunch.
The Hospital further argues that Severin promulgated the
restriction on June 5, to avoid violating the Federal Occupa-
tional Safety and Health Act (OSHA). In support of this ex-
planation, the Hospital pointed to an OSHA inspection of the
powerhouse, during which the inspector observed asbestos
and said that, as there was only one employee working near
it, the hazard was acceptable. The Hospital also relied on
Severin’s testimony, that after observing five or six employ-
ees eating lunch in the powerhouse, beyond their 30-minute
lunch period, and after the OSHA inspection, he decided to
issue the notice of restriction.
I find that the Hospital’s explanation does not withstand
analysis. First, I note that Severin did not offer this expla-
nation to the maintenance employees in his notice of June 5.
This omission suggests that it was an afterthought, formu-
lated to mask the real motive for the restriction. I also note
that when Severin saw five or six employees eating lunch in
the powerhouse, after the OSHA inspection, he did not order
them to leave because of OSHA regulations or because of
the underlying statute. That the Hospital did not offer the
OSHA inspector’s testimony regarding the asserted hazard-
ous environment in the powerhouse suggests that the inspec-
tor’s testimony would not have supported the Hospital’s ex-
planation. Further, on cross-examination, Severin conceded
that neither the State nor OSHA had advised him that em-
ployees could not eat in the powerhouse.
Finally, the Hospital’s explanation runs afoul of the fol-
lowing provision of 29 CFR § 1910.141, ¶ 3(g) (Occupa-
tional Health and Safety Act), which states:
Consumption of food and beverages on the premises—
(1) Application. This paragraph shall apply only where
employees are permitted to consume food or beverages,
or both, on the premises. (2) Eating and drinking areas.
No employee shall be allowed to consume food or bev-
erages in a toilet room nor in any area exposed to a
toxic material.
Had Severin been trying to satisfy OSHA regulations, the
quoted paragraph would have told him that the power engi-
neer on duty could not eat lunch in the powerhouse, if, as
Severin testified, toxic chemicals were in use there and if as-
bestos were present. Yet his notice of June 5 announced that
the ‘‘duty engineer’’ was free to take breaks and eat lunch
in the powerhouse.
From this conflict between the notice and the regulation,
Severin’s demeanor when asked if he had lunched at the
powerhouse, and the factors which I have recited in the pre-
ceding paragraph, I find that Severin did not trouble himself
about OSHA regulations until the hearing before me. At that
point, for the first time, he was obliged to explain the impo-
sition of the restriction announced in that notice. Thus, I find
that the Hospital has failed to rebut the General Counsel’s
prima facie showing of unlawful motivation.
In sum, I find that on June 5, Severin issued his directive,
prohibiting nonpowerhouse maintenance employees from
655INDIANA HOSPITAL
using the powerhouse for breaks and lunch in reprisal for
their support for the Union in the representation election and
to discourage them from continuing such support. I also find
that by this discriminatory conduct, the Hospital violated
Section 8(a)(3) and (1) of the Act. Economy Foods, 294
NLRB 660 (1989).
I also find for the following reasons that the Hospital had
a duty to give the Union notice of the contemplated prohibi-
tion, and an opportunity to bargain about it before putting it
into effect.
Where, as here, a labor organization has won a Board-held
election, and the resolution of objections to the election re-
sulted in the Union’s certification, the Board, in Mike O’Con-
nor Chevrolet, 209 NLRB 701, 703 (1974), enf. denied on
other grounds 512 F.2d 684 (8th Cir. 1975), provided the fol-
lowing guidance regarding an employer’s duty to bargain
collectively in such circumstances:
[A]bsent compelling economic considerations for doing
so, an employer acts at its peril in making changes in
terms and conditions of employment during the period
that objections to an election are pending and the final
determination has not been made. And where the final
determination on the objections results in the certifi-
cation of a representative, the Board has held the em-
ployer to have violated Section 8(a)(5) and (1) for hav-
ing made such unilateral changes. Such changes have
the effect of bypassing, undercutting, and undermining
the union’s status as the statutory representative of the
employees in the event a certification is issued.
I find that on June 5, the Hospital made a material, sub-
stantial, and significant change in a term or condition of em-
ployment, when it prohibited maintenance employees from
taking breaks and eating lunch in the powerhouse. Advertis-
er’s Mfg. Co., 280 NLRB 1185, 1191 (1986). This change
occurred while objections to the election of September 1991
were pending. Thereafter, the Board certified the Union as
the maintenance employees’ bargaining representative on
September 30. Therefore, unless, the Hospital was faced with
some ‘‘compelling economic considerations’’ it was not at
liberty to make such a change without notifying the Union
of the contemplated change and giving it an opportunity to
bargain about it.
Relying on Murphy Oil USA, 286 NLRB at 1042, the Hos-
pital, argues that here, as in that case, OSHA regulations
compelled it to impose the prohibition and thus excused it
from bargaining with the Union about the prohibition. How-
ever, I have found that the Hospital did not rely upon any
OSHA regulation, when Severin prohibited maintenance em-
ployees from using the powerhouse for breaks and lunch. In-
stead, I have found that Severin was motivated by antiunion
reasons. Therefore, I find that the Hospital was not exempt
from its bargaining obligation. Accordingly, I find that the
Hospital violated Section 8(a)(5) and (1) of the Act by its
failure to give the Union an opportunity to bargain about its
decision to prohibit maintenance employees from using the
powerhouse for breaks and lunch.
D. The Changes in the General Maintenance
Employees’ Work Schedules
Since 1967, the Hospital has burned red-bag waste, which
is bio-hazardous, in an incinerator, located in its powerhouse.
Prior to December 1989, the powerhouse engineers burned
the red bags during the second shift, from 3 until 11 p.m.
In December 1989, the Hospital shifted the burning of red
bags to the third shift, from 11 p.m. to 7 a.m. I find from
Director Severin’s testimony, that the Hospital burned this
toxic waste at night, as a public relations measure, and to
protect the operating rooms from smoke. The Hospital be-
lieved that the dirty smoke, which was visible during day-
light hours, harmed its image and impaired the atmosphere
in its operating rooms.
In late 1989, the Pennsylvania Department of Environ-
mental Resources (DER) inspected the incinerator and found
that it did not meet current air pollution standards. DER in-
structed the Hospital to take corrective action or stop the
burning. The Hospital elected to refurbish the incinerator.
The Hospital finished rebuilding its incinerator in 1991.
From May until July 1991, the Hospital burned red-bag trash
in the incinerator, on the third shift. On the weekends, during
that period, only one person worked the third shift, in the
powerhouse.
After failing a DER test of the incinerator’s emissions, in
July 1991, the Hospital began burning a 50/50 proportion of
noninfectious, green-bag waste to infectious, red-bag waste.
In November 1991, at the request of employees, Severin, in
violation of the Hospital’s DER permit, authorized the burn-
ing of only red-bag waste. The employees had complained
that the burning of both types of bags was burdensome, be-
cause of the length of the burning process and the increased
heat in the incinerator when they cleaned out the ash.
Severin did not seek a change in the Hospital’s 50/50 per-
mit from DER, until March 24, when, by letter, he asked
DER about changing the Hospital’s license to red-bag burn-
ing only. On April 2, Severin received a response from DER
explaining that the requested change could be accomplished
if the incinerator were retested and found to be in compli-
ance with DER’s standards.
The employees, with Severin’s agreement, changed the
burn schedule. They burned the red bags during the first shift
on Tuesdays, at midnight on Thursdays, and during the sec-
ond shift on Saturdays. Severin maintained this schedule
until April. On April 10, DER inspected the Hospital and,
found that it was burning red-bag waste only, when it’s li-
cense limited it to burning a 50/50 red-bag and green-bag
mixture. DER cited the Hospital for violating its license.
Severin immediately ordered the employees to burn a 50/50
mixture.
Along with the change in the composition of the burns,
Severin changed the burn schedule. Burning of waste was to
be done 7 days per week, but only at night, on the third
shift. The incinerator would then cool down during the first
shift, and be cleaned during the second shift. This schedule
has continued in effect until the present.
Shortly after Severin instituted this new schedule, Carl
Beck, a night-shift powerhouse engineer, complained that
when he was on duty, he could not burn the waste and effec-
tively cover the Hospital’s maintenance emergencies. Em-
656 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 I based my findings regarding the operation of the new inciner-
ator and the need to assign a general maintenance man to the night
shift in the power, on Severin’s, Smith’s, and employee Joseph
Yagle’s testimony.
10 In making my finding that Harshyne changed the three employ-
ees’ work schedules, I have relied on Severin’s and Harshyne’s testi-
mony. Employee Joe Yagle testified that David Smith drew up the
new schedule for the three general maintenance employees. How-
ever, Smith did not corroborate that testimony. Severin convincingly
identified the schedules and testified that Harshyne prepared them.
Harshyne, who impressed me as being a candid witness, corrobo-
rated Severin’s testimony.
11 According to employees John Colananni and Joe Yagle, the
Hospital changed their work schedules in April. David Smith testi-
fied that the changes began in May. However, the Hospital’s records
rebut that testimony and corroborate Severin’s, testimony, which in-
dicated that the changes took effect in June.
12 Severin denied that David Smith ever sought to discuss with
Severin the burning of waste on the second shift. When asked if he
was sure that Smith had not approached him about burning on the
second shift, Severin testified that as he had set up the burn schedule
to dispose of the 50/50 mixture, he would have remembered if some-
one had asked him to change that schedule. However, in light of
Severin’s hostility toward the Union and his refusal to deal with
Smith as the Union’s shop steward, I find it likely that he would
have turned a deaf ear to any of Smith’s suggestions regarding shift
scheduling. Moreover, unlike Smith, who testified in a full and forth-
right manner, Severin’s denial was in response to a leading question
by the Hospital’s counsel. Accordingly, I have credited Smith’s testi-
mony.
ployee David Smith received similar complaints from two
night-shift powerhouse operators. The new incinerator’s fast-
er burning required reloading every 10 to 15 minutes.9
Severin decided to add one general maintenance employee
to each of the third shifts on Friday and Saturday nights. In
early June, he instructed Kathie Harshyne, secretary for the
Hospital’s engineering and maintenance departments, to de-
velop a schedule whereby general maintenance employees
would cover the night shifts on Fridays and Saturdays, from
11 p.m. until 7 a.m.
Carrying out Severin’s instructions, Harshyne changed the
work schedules of general maintenance employees John
Colananni, Frank Pina, and John Rapacuk.10 Prior to this
change, Colananni worked the day shift, from 7 a.m. until 3
p.m. He also worked every other weekend, and had Thurs-
days and Fridays off, on the alternate weeks. Prior to June,
employees Pina and Rapacuk worked only first and second
shifts, had every other weekend off, and had Thursdays and
Fridays off on the alternate weeks. Under Harshyne’s sched-
ule, which began in June,11 Colananni, Pina, and Rapacuk
were scheduled to work 11 p.m. to 7 a.m. shifts, some on
Friday nights, in addition to first and second shifts. Also,
during some weeks, their 2 days off are Monday and Friday,
instead of back-to-back days.
Severin adopted Harshyne’s schedule, without notifying
the Union, and without giving the Union an opportunity to
bargain on behalf of the Hospital’s maintenance employees.
I find from David Smith’s testimony that soon after the new
schedule went into effect, he attempted to discuss it with
Severin.12 Smith suggested that the burning of waste could
be done on the second shift, when there were enough mainte-
nance employees present to cover the Hospital’s needs.
Severin did not want to discuss the matter. The schedule
which Severin adopted in June, remains in effect.
Here, I find that the General Counsel has made a prima
facie showing that Severin changed the general maintenance
employees’ work schedule in June as a reprisal against them
because the Union had won the election in September 1991.
This change in schedules had an adverse impact on the three
employees involved. Prior to this change, they were not re-
quired to work on the 11 p.m. to 7 a.m. shift and they en-
joyed 2 consecutive days off each week. After the change,
each of the three general maintenance employees was on the
third shift on four occasions during his 12-week work sched-
ule, and during 4 of those weeks, his days off fell on Friday
and Monday. Severin brought about the change by directing
Kathie Harshyne to draw up a schedule showing a general
maintenance employee on each weekend night shift. This di-
rective came in June, a month marked by Severin’s resort to
reprisals violative of Section 8(a)(3) and (1) of the Act,
which were designed to discourage employees from support-
ing the Union. Given these manifestations of antiunion senti-
ment, and the timing of Severin’s directive, there is sufficient
evidence to suggest that he acted once again to coerce em-
ployees into abandoning the Union.
The Hospital contends that union hostility had nothing to
do with Severin’s decision to assign three general mainte-
nance employees to weekend duty on the third shift. In his
testimony before me, Severin denied that union affiliation
had anything to do with his decision in this regard. Severin’s
denial finds support in the fact that his decision followed
closely on powerhouse engineer Carl Beck’s complaint that
he could not feed the incinerator and perform maintenance
chores on the weekend third shifts, when there were no other
maintenance employees on duty at the Hospital. David Smith
received similar complaints from other powerhouse operators.
The record shows that prior to June, Severin had shown
a similar response to employee complaints. In November
1991, 2 months after the Union’s election victory, Severin
quickly returned to burning infectious waste, when employ-
ees pressed him to do so. I find from his uncontradicted tes-
timony, that the employees convinced him that burning infec-
tious and noninfectious waste was a hardship because the
heat generated by the prolonged burning impeded them when
they cleaned the incinerator. Thus, Severin’s conduct in June
may well have been motivated by an employee’s complaint
rather than his hostility toward the Union.
Counsel for the General Counsel points to evidence show-
ing that Severin did not have to inconvenience any mainte-
nance employee, as he had the option of burning waste on
the second shift, when there were sufficient general mainte-
nance employees present to solve the powerhouse operator’s
complaint. Based on that showing, counsel urges that Severin
went out of his way to make it necessary to schedule the
three maintenance employees for the third shift on weekends.
However, I find that argument to be wide of the mark.
My ground for rejecting the General Counsel’s position is
that there is no allegation that the decision to continue burn-
ing waste on the third shift was an unlawful reprisal against
the maintenance employees. Instead, the alleged unfair labor
practice was the scheduling of three general maintenance em-
ployees to implement that lawful decision, which Severin had
made in April, under pressure from DER. The merit of
Severin’s decision to burn waste on the third shift is not
657INDIANA HOSPITAL
13 My findings regarding the work assigned to Shaffer for the
nights of June 26 and 27, and his inability to perform the electrical
work in the operating room are based on his testimony.
14 In finding that it was Severin, who scheduled Huston in July
and August, I have relied on Kathie Harshyne’s testimony.
15 My findings regarding the seniority of the four craftsmen avail-
able to work during Pina’s absence were based on Kathie
Harshyne’s testimony.
under scrutiny here. Only the decision to comply with the
powerhouse employee’s complaint is before me at this junc-
ture. Thus, Severin’s selection of a particular shift for burn-
ing waste was immaterial to the success of the General
Counsel’s contention that the three maintenance employees
were victims of his antiunion sentiment.
In sum, I find that the General Counsel has not shown by
a preponderance of the evidence that Severin’s explanation of
his decision to assign general maintenance employees to
weekend night shifts was pretextual. Further, the Hospital
has adequately shown that Severin would have made that de-
cision even if the maintenance employees had not supported
the Union. Accordingly, I find that the rescheduling of em-
ployees Colananni, Pina, and Rapacuk in June did not violate
Section 8(a)(3) and (1) of the Act.
However, I agree with the General Counsel’s contention
that the Act required the Hospital to notify the Union of the
contemplated changes in the three employees’ work schedule,
and to give the Union a reasonable opportunity to negotiate
about them with the Hospital. The Board’s policies, as set
forth above, in my discussion of the Hospital’s unilateral im-
position of a restriction on employees taking lunchbreaks at
the powerhouse, are wholly applicable to the rescheduling of
the three maintenance employees in June. The Hospital has
not shown that Severin had no choice but to burn the waste
on the third shift. He could have burned it on the second
shift and avoided making the changes in scheduling for the
three general maintenance mechanics. Therefore, I find that
by making those changes in the three unit employees’ work
schedules, without giving the Union an opportunity to bar-
gain collectively about them, the Hospital violated Section
8(a)(5) and (1) of the Act. Angelica Healthcare Services, 284
NLRB 844, 853 (1987).
In its posthearing brief, the Hospital argued that the deci-
sion in St. John’s Hospital, 281 NLRB 1163, 1168 (1986),
requires a finding that it had no duty to bargain about the
rescheduling of the general maintenance employees. I dis-
agree. In that case, the Board found that an employer’s uni-
lateral enforcement of restrictions on smoking and drinking
by employees during shift changes, at a time when the em-
ployer had a duty to bargain with a union, was not violative
of Section 8(a)(5) and (1) because the restrictions were not
‘‘a material substantial change from prior practice.’’ How-
ever, that holding has no application to the Hospital’s unilat-
eral changes in the working hours in the instant case, which,
I find, were material and substantial. and therefore subject to
the collective-bargaining process.
E. Changes in the Work Schedules of Employees
Charles P. Huston and Thomas G. Shaffer Jr.
Employees Charles P. Huston and Thomas G. Shaffer Jr.
are the most senior employees in Severin’s maintenance de-
partment. Huston has been a plumber in that department for
23 years. Shaffer has worked as an electrician in the Hos-
pital’s maintenance department for 25 years, and is the de-
partment’s most senior employee. Huston is the second most
senior employee in that department.
Prior to June, Huston normally worked on the maintenance
department’s first shift, from 7 a.m. until 3:30 p.m., on
weekdays, only. For the 20 years prior to June, Shaffer regu-
larly worked on the day shift, weekdays only. However, I
find from Kathie Harshyne’s testimony, that once or twice
yearly, she scheduled them for other shifts, when their work
on a construction project required such a change, or if their
work assignment was in an area of the Hospital which was
not accessible to them during the day. I find from Shaffer’s
testimony that perhaps once in 6 months, he would work on
a different shift because of an emergency, or because he had
volunteered. From Severin’s testimony, I find that prior to
June, Huston and Shaffer rarely worked at the Hospital dur-
ing a weekend.
Severin did not recall any instance in which he called ei-
ther of them in on a weekend to perform general mainte-
nance work. Before June, on occasions when his plumbing
work was light, Huston would help with maintenance work.
Prior to June, Shaffer occasionally did general maintenance
work at the Hospital. The Hospital’s records reveal that in
1992, prior to June, he worked on four Saturdays and five
Sundays. However, there was no showing that he had been
scheduled ahead of time to work on those days.
In late June, Severin made some changes in Huston’s and
Shaffer’s work schedules, and, in Huston’s case, changed the
nature of his work, as well. Severin assigned Huston to gen-
eral maintenance work, on the first shift on June 25, and on
the second shift on June 26. On June 26 and 27, Severin put
Shaffer on the third shift, from 11 p.m. until 7 a.m. Severin
also assigned electrical work in an operating room to Shaffer.
However, Shaffer was too busy with maintenance work on
those two nights to work in the operating room. Shaffer’s
testimony shows that the operating room was in use during
weekdays, and thus not accessible to him during his normal
shift.13
In July and August, Severin substituted Huston for general
maintenance employee Frank Pina, who was absent on a
workman’s compensation injury. Of the 20 workdays for
which Severin scheduled Huston in July, 16 were on the first
shift, 2 were on the second shift, and 2 were on the third
shift. Also, Pina’s schedule required Huston to work four
weekends. Of the 15 workdays for which Severin scheduled
Huston in August, 10 were on the first shift and 5 were on
the 3 to 11 p.m. shift. The Hospital’s records show that Pina
returned to work on August 31.14
During July and August, other craftsmen were available to
perform general maintenance in place of Pina. Ed Knapic,
Dan McQuiston, Dan Provias, and Rich Walters were all
working during all or most of Pina’s absence. Their seniority
in the Maintenance Department ranged from 11 or 12 years
for Knapic, to 2 years for Walters and Provias. McQuistan
had been in the department since ‘‘somewhere around
1985.’’15
Beginning on July 16, painter Mike Sprinkle substituted
for general maintenance mechanic John Colananni, until the
end of August or the beginning of September, during the
latter’s absence. This change in schedule was not the subject
of a complaint allegation.
658 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Severin made the changes to Huston’s and Shaffer’s work
schedules without prior notice to the Union. Nor did he af-
ford the Union an opportunity for bargaining collectively
about them.
According to the General Counsel, Severin changed
Huston’s and Shaffer’s schedules, as recited above, because
the maintenance employees voted the Union in as their col-
lective-bargaining representative. The Hospital urges rejec-
tion of the General Counsel’s position on the ground that
evidence of unlawful motive is wanting. Contrary to the Hos-
pital, I find that the record amply sustains the General Coun-
sel’s contentions regarding Severin’s motive.
The changes in Huston’s and Shaffer’s schedules were un-
usual for them. During his 23 years with the Hospital, prior
to June, Huston’s regular schedule was limited to day shifts
on weekdays. Also, prior to June, the Hospital had never as-
signed Huston to do only general maintenance work. Severin
scheduled Huston to perform only general maintenance on
the first shift, on June 25 and on the second shift, on June
26. In July and August, Severin gave general maintenance
employee Pina’s schedule to Huston. Thus, Severin required
Huston to perform general maintenance, rotate shifts, and
work weekends. Compared to Huston’s normal routine,
Pina’s schedule was clearly unappealing.
During the last 20 of Shaffer’s 25 years with the Hospital,
his normal schedule had been first shift on weekdays. In
1992, prior to June, Shaffer had worked on four Saturdays
and five Sundays. However, the record does not show wheth-
er he was scheduled for those weekend days, or whether
some project or an emergency required his presence at the
Hospital on those occasions. In any event, Severin’s schedul-
ing of Shaffer to work on Friday and Saturday, June 26 and
27, on the third shift, which ran from 11 p.m. until 7 a.m.,
the following morning, was unusual, and not a desirable
change from his normal assignment to the daylight shift.
While on the third shift, Shaffer was the only employee
available to perform general maintenance.
Severin’s selection of Shaffer and Huston for unusual
changes in their shift assignments occurred in circumstances
which had accompanied Severin’s discriminatory conduct
against David Smith and the maintenance employees who
had used the powerhouse for lunchbreaks. In those instances,
I found that Severin had used his supervisory authority to
violate Section 8(a)(3) and (1) of the Act by punishing mem-
bers of the bargaining unit, which had supported the Union
in the 1991 Board-held election. Severin made the unpleasant
changes in Shaffer’s and Huston’s work schedules, set out
above, in the wake of his unlawful prohibition against use
of the powerhouse for lunch, soon after his unlawful critical
comment in David Smith’s evaluation, and shortly before he
issued a disciplinary warning against David Smith in viola-
tion of Section 8(a)(3) and (1) of the Act. In each of the ear-
lier Wright Line analyses, I found a prima facie showing that
Severin was motivated by hostility toward the Union. I find
that the General Counsel has made a similar showing here.
His reference to the Union as an outside influence in
Smith’s evaluation, which was issued on June 23, showed
that Severin was well aware of the Union. His resort to the
critical comment in Smith’s otherwise excellent evaluation,
the use of a pretext to inflict a disciplinary warning on David
Smith, and the reliance on another pretext to bar unit em-
ployee from the powerhouse, all in retaliation for the Union’s
victory in the 1991 representation election, suggested that
hostility to the Union moved him to punish his employees
whenever he perceived an opportunity to do so.
In one episode, however, the evidence did not convince
me that Severin had acted out of hostility toward the Union.
Thus, in section D, above, I found that the General Counsel
had failed to show by a preponderance of the evidence that
union animus had provoked Severin, when he changed three
general maintenance employees’ schedules in June. In mak-
ing that finding, I credited Severin’s explanation which
showed a compelling economic motive. Here, however, the
Hospital has not shown any compelling reason for the selec-
tion of Huston and Shaffer for shift changes.
There was no showing of any compelling economic reason
why Severin had to assign Huston to perform general main-
tenance on June 25 and 26, or why he was forced to sched-
ule Huston for the second shift on June 26. Severin passed
over McQuiston, Provias, Walters, and Colananni, all of
whom were available for general maintenance work on those
dates. Nor was there any showing why one of these mainte-
nance mechanics could not have done Pina’s work, instead
of Huston. Also, there was no showing that Shaffer was the
only maintenance employee available for general mainte-
nance work, on the third shift, on the nights of June 26 and
27.
Severin testified that the employees’ ‘‘union affiliation’’
played no part in the scheduling of employees. He also testi-
fied that he chose Huston to substitute for Pina because
Huston was ‘‘available.’’ However, the record showed that
though other maintenance employees were available, Severin
singled out Huston, the second most senior of his employees,
to take on a work schedule substantially less desirable than
his normal schedule, and to perform general maintenance
work, instead of his craft work. Thus, I find Severin’s expla-
nation for his treatment of Huston unconvincing.
Similarly, I find that Severin has not adequately explained
why he selected Shaffer, his most senior maintenance em-
ployee, to do electrical work in an operating room on the
third shift over a weekend, when he would be the only main-
tenance employee present with the powerhouse operator. For,
by thus exposing Shaffer to demands for general mainte-
nance work, Severin made it impossible for him to perform
the electrical work on those two nights. Severin could have
selected a general maintenance employee to perform the gen-
eral maintenance work on the third shift on June 26 and 27,
and scheduled Shaffer to do the operating room electrical
work on the first shift on those dates. Instead, he hand-
picked Shaffer to work on the two weekend night shifts,
which compared unfavorably with Shaffer’s normal shift as-
signments.
In sum, I find that Severin’s proffered explanations were
pretextual. I further find, therefore, that the General Coun-
sel’s prima facie showing of unlawful motive stands
unrebutted. Accordingly, I find that Severin’s changes in
Huston’s and Shaffer’s work schedules in the summer of
1992 violated Section 8(a)(3) and (1) of the Act.
It is undisputed that the Hospital did not provide the
Union with any opportunity to negotiate about the changes
in Huston’s and Shaffer’s work schedules in the summer of
1992. I also find that the Hospital has not shown any com-
pelling economic reasons for making these unilateral
changes. In light of the Union’s subsequent certification as
659INDIANA HOSPITAL
the bargaining representative of its maintenance employees,
I find that when Severin made these material, substantial, and
significant changes in the working hours of bargaining unit
employees, unilaterally, the Hospital acted at its peril. Mike
O’Connor Chevrolet, 209 NLRB 701, 703 (1974), enf. de-
nied on other grounds 512 F.2d 684 (8th Cir. 1975). As the
Board thereafter certified the Union on September 30, I find
that the Hospital’s unilateral changes in Huston’s and
Shaffer’s work schedules violated Section 8(a)(5) and (1) of
the Act. Angelica Healthcare Services, supra.
F. The Lead Groundskeeper’s Job Description
When the Hospital transferred John Colananni to the gen-
eral maintenance mechanic classification in October 1991, he
had been its lead groundskeeper since 1987. During those 4
years as lead groundskeeper, he had worked under a job de-
scription, which the Hospital had approved in 1987.
Colananni’s principal duties and responsibilities under that
job description were as follows:
1. Work with the Director of Facilities Management
to develop and document scheduling with performance
duties of personnel on a daily, weekly, or seasonal
schedule.
2. Initiate and assist Facilities Management Director
in the development of landscaping and planning archi-
tectural design.
3. Direct, assist, and perform a variety of labor func-
tions to achieve the beautification and safety of the fa-
cilities properties to include, but not limited to, cultivat-
ing, planting, mowing, pruning, weeding, application of
chemicals, water, trash removal, snow removal, and
equipment repairs.
4. Must have a private license for the application of
chemicals for the treatment of plant life and vegetation.
5. Must be capable of operating and understanding
the use of mobile and a variety of hand tools.
6. When seasonal conditions do not permit perform-
ance of duties exterior of the building (roads and
grounds) the individual will work within the facilities
and assist the Engineering and Maintenance personnel
in the performance of a variety of repair functions.
7. Must be familiar and have some experience with
hardware i.e, door closures, locks, etc.; carpentry, minor
plumbing and electrical repairs.
Knowledge, Skills, and Abilities Required
1. Must be a high school graduate with at least three
years horticulture experience or equivalent.
2. Manual dexterity is necessary to handle garden
tools, bulbs, seeds, and plants.
3. Foot-hand-eye coordination when operating power
equipment.
4. Color perception is necessary to determine harmo-
nious or contrasting arrangements of garden plots.
5. Spatial perception is necessary when positioning,
aligning, and clipping plants, shrubs, or trees.
6. Interpersonal skills necessary to lead and deal ef-
fectively with others.
7. Must possess a valid State of Pennsylvania Driv-
er’s License.
Working Conditions
Must be able to lift, bend and do excessive walking.
On February 13, the Hospital hired Mark Ohi as its lead
groundskeeper. Ohi has retained that position since that date.
In the spring, Ohi asked Kathie Harshyne for a copy of
his job description. Harshyne told Ohi that she did not think
there would be any problem fulfilling his request. However,
she did not fulfill it immediately. A few days later, Ohi re-
turned and renewed his request. Harshyne had forgotten
about it, but she assured Ohi that she would check with
Severin, and get the job description. When she had an oppor-
tunity, Harshyne mentioned Ohi’s request to Severin, who
approved it.
In her effort to provide a job description to Ohi, Harshyne
became confused, when she came on two job descriptions for
lead groundskeeper. One was the 1987 job description, set
out above, in pertinent part. The other was a job description
which Severin had drawn up, which was materially different
from the 1987 job description.
Severin had drafted the second description, using language
which, for the most part, is identical with that used in the
1990, 1991, and 1992 evaluations of the lead grounds-
keepers, Colonanni and Ohi, respectively.
The job description which Severin drafted differs from the
1987 lead groundskeeper’s job description by the addition of
the following duties and responsibilities:
2. Assign personnel to accomplish scheduled/ un-
scheduled workload to include development of snow re-
moval, plan.
4. Submit documented requests for materials, equip-
ment, and repairs of equipment to maintain a creditable
operation.
5. Inform supervision, with documented evidence of
the endangerment of plant and animal life within a rea-
sonable time to permit alternatives to be enacted.
8. All work areas are to be left clean, neat and free
of debris. Tools and equipment are to be returned to the
normal storage areas.
9. Inform with documented evidence of equipment
and tool failure and/or loss.
10. Maintain equipment and tool inventory.
11. Perform a variety of driving (delivery/pickup)
duties with facility vehicles.
12. Work performance shall conform to the depart-
ments and hospital’s Quality Assurance Activities.
13. Performs other related duties as assigned.
Severin studied the two job descriptions, chose his version,
signed his name on its second page, dated it ‘‘5–12–92,’’ and
handed it to Harshyne, with direction to give a copy to Ohi.
Harshyne made a copy and gave it to Ohi.
In addition to a description of principal duties and respon-
sibilities, Severin’s version included a listing of ‘‘Knowl-
edge, Skills, and Abilities,’’ as follows:
1. Must have a degree in Landscape Contracting or
related field with at least 3 years horticulture experi-
ence or equivalent.
2. Have a minimum of 2 years experience in per-
forming and directing groundkeeping activities, schedul-
660 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ing, decision making, planting, pruning, mowing, snow
removal operations with [sic] through knowledge with
shrubs, trees and plant life.
3. Manual dexterity to utilize hand tools and operate
power equipment.
4. Good written and verbal communication skills.
5. Must be capable of developing and interpreting
planting diagrams and landscaping plans.
6. Possess a valid PA Class 1 driver’s license.
7. Possess a valid private chemical application li-
cense.
Severin’s job description also had a section headed:
‘‘Working Conditions,’’ which consisted of the following:
Encompass, lifting, bending, inclement weather (hot-
cold), high and low areas, agility, dexterity is nec-
essary.
This section differed substantially from the ‘‘Working
Conditions’’ in the 1987 job description, which only required
ability ‘‘to lift, bend, and do excessive walking.’’
At the hearing, the Hospital produced a second draft of
Severin’s proposed job description, which had been approved
by its vice president for personnel services, Dominic
Paccapaniccia. According to Paccapaniccia, this job descrip-
tion is also a draft. I note that this second draft conforms to
the draft given to Ohi, except that it omits ‘‘13. Performs
other related duties as assigned.’’
The General Counsel argues that the job description,
which Severin signed and dated on May 12, was Ohi’s new
job description. The Hospital replies that the 1987 job de-
scription remains in effect, and that neither Severin’s nor
Paccapaniccia’s drafts are in effect because neither has re-
ceived the required approvals. The Hospital also urges me to
note that the same criteria set out in the job description,
which Ohi received in the spring of 1992, also appear in
Colananni’s 1990 and 1991 evaluations. I find that the Gen-
eral Counsel’s position and the Hospital’s initial position that
the 1987 job description is the current job description ignore
reality. For, as the Hospital urges in its alternative position,
the language of the 1992 job description drafts had already
appeared in Colonanni’s evaluation in 1990 and again, in
1991. Thus, a new job description for the lead groundskeeper
appeared first in the 1990 evaluation, and has been repeated
in subsequent evaluations for Colananni and Ohi, respec-
tively. The disputed drafts were attempts to formalize that
job description.
I find that, except for item 13, the language of Severin’s
‘‘Principal Duties and Responsibilities’’ section, did not add
to the requirements of the appraisal factors in the 1990 and
1991 personnel performance appraisals for lead grounds-
keeper John Colananni. However, unlike the drafts, the ap-
praisal form also added coordination of ‘‘the necessary
housekeeping duties with the Engr. & Maint. Supervision on
a scheduled basis of the facilities waste compactor and incin-
erator’’ to clarify one of the major appraisal factors. This
clarification is absent from Severin’s draft as well and from
the draft he and the vice president signed. However, both
drafts include the major appraisal factor. I also note that the
draft signed by Severin and Vice President Paccapaniccia
omits item 13 and, except for the coordination of ‘‘the nec-
essary housekeeping duties’’ adopts the appraisal factors’
language. Thus, the Hospital was using all but one of these
criteria, and only one additional element to clarify a major
factor, to evaluate its lead groundskeepers, prior to the
Union’s election victory in September 1991. I find therefore,
that Severin’s draft and the draft signed by Paccapaniccia
substantially documented the job’s content, which had been
in effect since at least 1990.
Contrary to the General Counsel’s contention, I find that
neither the job description, which Ohi received from Severin,
nor the job description, which he and Paccapaniccia subse-
quently signed, significantly or materially altered the job de-
scription for the Hospital’s lead groundskeeper. Nor was
there any showing that the Hospital has enforced the added
‘‘Knowledge Skills, and Abilities’’ or the new requirements
of the ‘‘Working Conditions’’ sections of Severin’s draft or
of the draft job description signed by Severin and Vice Presi-
dent Paccapaniccia. Thus, the General Counsel has failed to
show that the Hospital, by issuing Severin’s version of the
lead groundskeeper’s job description to Ohi, had violated its
duty to bargain with the Union. I also find, therefore, that
the Hospital did not violate Section 8(a)(5) and (1) of the
Act, by issuing that job description in the spring of 1992.
Nor did the Hospital violate Section 8(a)(5) and (1) of the
Act, when it unilaterally drafted the job description for its
lead groundskeeper, which Severin and Vice President
Paccapaniccia signed. Accordingly, I shall recommend dis-
missal of the complaint allegation regarding that job descrip-
tion.
G. The Change in the Policy Regarding Assignment of
Snow Removal Duties
In January 1987, the Hospital formulated a snow removal
policy, which it revised in 1988, and which it included in the
engineering and maintenance department’s policy and proce-
dure manual. That policy requires that engineering and main-
tenance department employees do snow removal on the sec-
ond and third shifts, on weekends, and on holidays. In imple-
menting that policy, each autumn, the Hospital posted a
signup sheet on a bulletin board, seeking engineering and
maintenance department volunteers. Each year, before No-
vember 1992, enough maintenance employees volunteered to
satisfy the Hospital’s needs. The snow removal policy did
not provide guidance when there were insufficient engineer-
ing and maintenance department volunteers for snow re-
moval.
In the autumn of 1992, the Hospital posted a signup sheet,
seeking volunteers for snow removal. No one signed it.
The bargaining unit employees withheld their signatures
for a variety of reasons. David Smith did not volunteer be-
cause he wanted to bargain collectively with the Hospital
about the snow removal policy. On November 10, he re-
quested, in writing, that Severin sit down and discuss that
policy. John Colananni did not volunteer for snow removal
because he did not like the new lead groundskeeper. Mainte-
nance employee Charles Huston did not signup because he
‘‘didn’t want to come in for snow removal.’’
Confronted with an empty signup sheet, the Hospital drew
up and promulgated the following directive:
REVISED POLICY FOR SNOW REMOVAL ON
AFTERNOON, NIGHT AND HOLIDAY SHIFTS
ONLY
661INDIANA HOSPITAL
16 Sec. 8(g) of the Act reads:
(g) A labor organization before engaging in any strike, picket-
ing, or other concerted refusal to work at any health care institu-
tion shall, not less than ten days prior to such action, notify the
institution in writing and the Federal Mediation and Conciliation
Service of that intention, except that in the case of bargaining
for an initial agreement following certification or recognition the
notice required by this subsection shall not be given until the
expiration of the period specified in clause (B) of the last sen-
tence of section 8(d) of this Act. The notice shall state the date
and time that such action will commence. The notice, once
given, may be extended by the written agreement of both par-
ties.
In the event that no volunteers or an insufficient
number of volunteers sign the posted Snow Removal
Volunteer List, the respective Power House employee
will call each Engineering and Maintenance employee
according to seniority order and ask if they want to vol-
unteer to come in and do snow removal.
In the event that no volunteers or an insufficient
number of volunteers are obtained through this proce-
dure in Paragraph No. 1, then the Power House em-
ployee will call the secondary list comprised of volun-
teers from other Hospital employees.
In the event that no volunteers or an insufficient
number of volunteers are obtained through the proce-
dures in Paragraph Nos. 1 and 2, the Power House em-
ployee will call the Engineering and Maintenance em-
ployees according to reverse seniority order and inform
them that they are required to come in and do the snow
removal.
During the winter of 1992–1993, the Hospital implemented
the first paragraph of the quoted revision. After concluding
that additional help was needed to remove snow, a power-
house employee called maintenance employees in on a vol-
unteer basis. All the employees who were called volunteered.
Thus, in that period, the Hospital did not implement either
the second or the third paragraphs.
At the time the Union’s shop steward, David Smith, re-
quested bargaining regarding the snow removal policy, the
Union had been certified as the exclusive bargaining rep-
resentative of the Hospital’s maintenance employees since
September 30. In a memorandum to David Smith, dated No-
vember 11, the Hospital rejected his request for collective
bargaining regarding the new snow removal procedure, stat-
ing that it was challenging the Board’s certification of the
Union as the bargaining representative of the Hospital’s
maintenance employees.
The General Counsel urges a finding that the Hospital vio-
lated Section 8(a)(5) and (1) of the Act, when it revised its
snow removal policy in November 1992, without giving the
Union an opportunity to bargain on behalf of the Hospital’s
maintenance unit. The Hospital contends that it had no duty
to bargain on the grounds that its November 1992 revisions
of the snow removal policy were not material, substantial,
and significant and that they were temporary measures neces-
sitated by the employees’ unlawful concerted work stoppage.
I find that the Hospital has violated its statutory duty to bar-
gain with the Union, as urged by the General Counsel.
In November 1992, Sections 8(a)(5) and 8(d) of the Act
required the Hospital to refrain from imposing new and dif-
ferent working conditions on its maintenance employees
without first giving their Board-certified representative, the
Union, an opportunity to bargain about them. NLRB v. Katz,
369 U.S. 736, 741, 742–743 (1962). Thus, the Hospital was
obliged to give prior notice to its maintenance employees’
representative of any managerial decision which might have
an effect on the bargaining unit’s employment conditions so
that the Union might have had a reasonable opportunity to
evaluate the proposal and present a counterproposal before
the change took place. E.g., M & M Contractors, 262 NLRB
1472 (1982). However, that obligation arose only if the con-
templated revision of the snow removal procedure was mate-
rial, substantial and significant, and affected the unit employ-
ees’ tenure or their terms and conditions of employment. San
Antonio Portland Cement Co., 277 NLRB 309, 313 (1985).
Contrary to the General Counsel, the Hospital argues that
it was not required to bargain with the Union about the No-
vember 1992 revision of its snow removal policy because it
was insignificant, insubstantial, immaterial and, in any event,
only temporary. I disagree with the Hospital.
I find that the three-step procedure, which the Hospital
adopted in November 1992, to assure itself of adequate per-
sonnel for snow removal, contrasted sharply with its previous
procedure for achieving that objective. Thus, prior to No-
vember 1992, the Hospital made snow removal duties purely
voluntary. The Hospital simply posted a signup sheet and
maintenance employees signed it. Under the new procedure,
if there are insufficient volunteers, the Hospital may require
maintenance employees to report for snow removal duty dur-
ing their off hours. I find this element of the new procedure
is a significant, substantial, and material change. Venture
Packaging, 294 NLRB 544, 556 (1989).
I also find no showing that the Hospital promulgated this
change, and made it part of its policy and procedure manual,
with any indication in the text or elsewhere, that it was only
temporary. Nor did Daniel Severin’s testimony regarding this
change suggest that the he or the Hospital considered this re-
vision temporary. Nor was there any other evidence in the
record before me to suggest that it was only temporary.
Nor can I agree with the Hospital’s contention that it was
excused from bargaining about the November 1992 revision
of its snow removal policy because the bargaining unit en-
gaged in a concerted work stoppage in violation of Section
8(g) of the Act.16 Initially, I find that the employees, who
refused to volunteer, did not engage in a work stoppage. In-
stead, I find that they engaged only in a concerted refusal
to volunteer. At no time did any of the Hospital’s mainte-
nance employees refuse a direction to report for duty and
clean snow.
Nor did the employees’ concerted refusal to volunteer run
afoul of Section 8(g) of the Act because they did not give
written notice as required by that section. For it is well set-
tled that the notice requirement of Section 8(g) of the Act
applies only if the work stoppage is by a labor organization.
E.g., East Chicago Rehabilitation Center, 259 NLRB 996,
999 (1982), enfd. 710 F.2d 397 (7th Cir. 1983). Here, there
was no showing that the Union organized or authorized the
maintenance employees’ concerted refusal to volunteer. In
sum, I find that the Hospital, by its unilateral revision of its
snow removal policy, in November 1992, violated Section
8(a)(5) and (1) of the Act.
662 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
17 According to Vice President Paccapaniccia, the Hospital issued
the directive of July 30 because an employee, David Smith, had re-
leased information to a state DER agent, in disregard of the em-
ployee handbook policy. Thus, if I credited Paccapaniccia, the direc-
tive was an amplification of the handbook policy statement. How-
ever, when asked to explain the 3-month gap between the DER’s
visit to the Hospital and the issuance of the directive, Paccapaniccia
was not responsive. Instead, he speculated as to what probably pro-
voked issuance of the directive. This flaw in his testimony cast
doubt on the reliability of his testimony regarding the relationship
between the directive and the policy contained in the employee
handbook. In any event, from my reading of the handbook policy
and the directive, I have concluded that each is aimed at a different
problem. The handbook policy is concerned with public relations and
the directive of July 30 was aimed at release of information to the
Hospital’s employees.
18 Advertiser’s Mfg. Co., 280 NLRB 1185, 1189–1199 (1986).
19 Larsen Supply Co., 251 NLRB 1642 (1980).
20 Allis-Chalmers Corp., 234 NLRB 350, 354 (1978).
21 RAHCO, Inc., 265 NLRB 235, 250–252 (1982); Bralco Metals,
214 NLRB 143, 149 fn. 9 (1974).
H. The Change in Policy Regarding Employee Requests
for Information
Prior to July 30, the Hospital had regularly honored its
employees’ oral requests for information such as the mainte-
nance and engineering department’s budget, job descriptions,
natural gas bills, electric bills, blueprints, personnel files,
work orders, and job related reports. When department sec-
retary Kathie Harshyne received an oral request from a main-
tenance and engineering department employee for informa-
tion, she would normally honor the request without consult-
ing Severin. However, if the request was for information
which had never been sought before, she would not release
the information without Severin’s approval.
On July 30, the Hospital’s president and CEO promulgated
a directive to its administrative staff, department managers,
and nursing unit managers regarding ‘‘Employee Requests
for Files,’’ which declared:
No Hospital files pertaining to any subject should be
released to employees requesting same from you.
Any requests to see files should be in writing and
submitted to Mr. Dominic Paccapaniccia, Vice Presi-
dent for Human Resources and Development.
There are no exceptions to this policy.
The Hospital posted this directive on the maintenance and
engineering department’s bulletin board in early August,
without either notifying the Union of its intention to do so
or giving the Union an opportunity to bargain about it. On
August 7, Steward David Smith asked Severin for an ash re-
port. Severin did not comply with Smith’s request. Instead,
he instructed Smith to put his request in writing and address
it to Vice President Paccapaniccia.
Since May 1990, the Hospital has included the following
provision in its employee handbook:
RELEASE OF INFORMATION
GENERAL PROCEDURE
Any information involving actions or overall activi-
ties of the Hospital will be released only through the
Public Relations Department or by the President and
CEO, unless responsibility is delegated to another indi-
vidual or department in specific instances. No employee
of the Hospital is to assume responsibility for release
of information without specific authorization.
Inquiries from the news media should be referred to
the following:
During working hours, between 8:00 a.m. and 5:00
p.m., Monday through Friday, all calls should be di-
rected to the Public Relations Department.
When the office is closed, calls should be directed
to the Nursing Coordinator for patient condition issues
and to the Vice President Public Relations, on other
issues.
The General Counsel urges me to find that the Hospital
violated Section 8(a)(5) and (1) of the Act, by promulgating
and enforcing this innovation. The Hospital argues that its di-
rective of July 30 was an implementation of the policy re-
garding the release of information, as set out in its employee
handbook, and that even if the directive was a change in pol-
icy, it was not material, substantial, and significant. I find
that the Hospital’s failure to notify the Union and afford it
an opportunity to bargain about the contents of the quoted
directive of July 30, prior to its issuance, did not violate Sec-
tion 8(a)(5) and (1) of the Act for the following reasons.
I find that in dealing with employee requests for informa-
tion, neither Severin nor Harshyne have relied on the Hos-
pital’s quoted policy regarding release of information. Nor
was there any reference in the directive of July 30 to that
policy.17 Instead, I find that prior to July 30, the Hospital
maintained an unwritten policy, which permitted Severin to
use his discretion in dealing with employee requests, and to
delegate his authority to Harshyne for routine requests. Since
July 30, the Hospital has required that employee requests be
in writing and that they be addressed to Vice President
Paccapaniccia instead of Severin and Harshyne. In its direc-
tive announcing this procedure which substantially differs
from that quoted above, the Hospital’s president and CEO
made no reference to the employee handbook provision,
which I find to be directed only to release of information to
the public.
However, contrary to the General Counsel’s contention, I
find that the Hospital’s decision to require employee requests
for information to be written, and addressed to Vice Presi-
dent Paccapaniccia did not entitle the Union to notice and an
opportunity to bargain. In her effort to find support for her
position, counsel for the General Counsel relies on cases in
which the unilateral changes consisted of stricter enforcement
of rules regarding conditions of employment, such as elimi-
nation of washup time, elimination of telephone privileges,
enforcement of a rule prohibiting the use of a dock area for
breaks, a more stringent tardiness policy,18 a change in an
employer’s lunchbreak policy,19 or stricter enforcement of
work rules.20 Counsel for the General Counsel asks me to
view this change, along with the other unilateral changes
which the Hospital made in violation of its duty to bargain,
as a totality impacting on the unit employees’ environment.
However, in the two cases she cited in support of her posi-
tion, the employer’s unlawful changes had to do with access
to the plant before the start of the workday and other rules
impacting directly on the unit employees’ conduct in the
course of their work.21
663INDIANA HOSPITAL
22 I based my findings regarding Smith’s requests and Severin’s re-
sponses on Smith’s uncontradicted testimony. I relied on Severin’s
testimony in finding that he understood that Smith was asking for
a report by Comprehensive Safety Compliance, Inc. which covered
the Hospital’s hygiene and safety. Smith testified that when he re-
jected the Latrobe laboratory’s ash report, he told Severin that he
wanted the ash report which Comprehensive Safety had made. How-
ever, I have not credited this portion of Smith’s testimony. Instead,
I have credited both Kathie Harshyne, who distinctly remembered
giving that report to Smith, and Severin, who testified that he had
given that report to Smith after receiving it on June 23.
Here, I find no showing that the Hospital’s directive of
July 30 had any effect on the bargaining unit employees’
wages, hours, or conditions of employment. The directive did
not have any effect on the maintenance employees’ work en-
vironment. Nor did it establish any rules limiting the kinds
of information which the employees would have access to.
Instead it channeled employee requests for information to a
specified hospital official and required that all such requests
be in writing. I find that these changes in procedure did not
effect the bargaining unit employees’ wages, hours, or condi-
tions of employment. I further find that the Hospital did not
violate Section 8(a)(5) and (1) of the Act by promulgating
and implementing its directive of July 30, regarding release
of information to employees, without giving the Union prior
notice and an opportunity to bargain about it. San Antonio
Portland Cement Co., 277 NLRB at 314.
I. The Refusal to Furnish Information to the Union
At the end of July, David Smith asked Dan Severin for a
copy of the report which Comprehensive Safety Compliance,
Inc. had prepared concerning the engineering and mainte-
nance department. Severin responded by giving an ash report
which had been prepared by another firm from Latrobe,
Pennsylvania. Smith rejected the proffered report and insisted
on receiving a report prepared by Comprehensive Safety
Compliance, Inc. regarding the engineering and maintenance
department. By this time, Severin had provided Smith with
a Comprehensive Safety report analyzing the airborne lead
and arsenic content in the powerhouse, which the Hospital
had received on June 23. However, Severin had another re-
port which Comprehensive Safety had prepared for the Hos-
pital, regarding its industrial safety and hygiene, which were
matters of concern for the engineering and maintenance de-
partment. Severin did not offer this report to Smith. Instead,
Severin said he was reviewing the requested report and
would get back to Smith.22
Smith waited about 1 week for word from Severin. Hear-
ing nothing from him, Smith approached Severin again about
the Comprehensive Safety report concerning the engineering
and maintenance department. Severin informed Smith that his
request would have to be in writing. Whereupon, Smith
made a written request for ‘‘the report that was given to the
Hospital concerning the Eng & Maintenance Dept that Com-
prehension Safety Co prepared.’’ Smith signed the request as
‘‘David Smith.’’ I find from Severin’s testimony, that he un-
derstood Smith’s request to be for a second report, which
Comprehensive Safety Compliance, Inc. had made, regarding
the entire hospital’s industrial safety and hygiene. Severin
passed Smith’s request to Vice President Paccapaniccia.
By letter dated August 17, Paccapaniccia refused to pro-
vide the report requested by Smith, on the ground that it was
confidential. Later in August, Smith told Severin that he was
upset by the Hospital’s refusal to furnish the report. Smith
said he did not want the entire hospital report, only the part
covering the maintenance department. Severin replied that
Smith would not receive the report, adding that Smith was
‘‘on a fishing expedition.’’
Smith made a second written request which met rejection.
In a letter dated October 12, Smith again asked for ‘‘the
Comprehensive Safety Report concerning the Engineering
and Maintenance department.’’ He signed the letter as the
Union’s engineering and maintenance shop steward.
Vice President Paccapanicca replied, by memorandum
dated October 30, that as the Hospital was seeking court re-
view of the Board’s certification of the Union, Smith’s re-
quest, as shop steward, was denied. The Hospital has never
provided the Union with the report which Smith requested in
his letter of October 12.
Counsel for the General Counsel contends that the Hos-
pital’s refusals to provide the information which David Smith
requested in August and October violated Section 8(a)(5) and
(1) of the Act. The Hospital argues that its refusals to supply
the requested information to the Union were lawful. First, the
Hospital asserts that there was only one Comprehensive
Safety Compliance report, which concerned the maintenance
department, and Severin gave it to Smith. Further, according
to the Hospital, Smith was not interested in the Comprehen-
sive Safety Compliance’s second report, which covered the
entire hospital. The Hospital contends that in any event, the
second report, did not concern the bargaining unit employ-
ees, and Smith never explained its relevance to the Union’s
role as the maintenance employees’ bargaining representa-
tive.
Contrary to the Hospital, I find there were two Com-
prehensive Safety Compliance reports which concerned the
maintenance and engineering department. The first of these
covered airborne inorganic lead and arsenic concentrations in
the Hospital’s powerhouse. Severin gave this report to David
Smith. The second report covered the industrial safety and
hygiene in the Hospital’s entire facility, matters which
Severin admitted were of concern to his department. After
receiving Paccapaniccia’s letter of August 17, rejecting his
request for the second report, Smith told Severin he ‘‘only
wanted the report concerning our department.’’ Smith had
expressed the same objective in his first written request,
dated August 7, and he repeated it in his second written re-
quest on October 12. Smith also testified that he ‘‘didn’t
want the whole hospital report.’’ I find from Smith’s re-
marks, and his testimony, that he was seeking whatever there
might have been in the second report which touched on the
concerns of the maintenance and engineering department.
The remaining question is whether the Act required the Hos-
pital to satisfy Smith’s requests.
At the time Smith made his first request for the second re-
port, the Union had been selected as the collective-bargaining
representative of the bargaining unit, which comprised
Severin’s maintenance and engineering department. When
Smith made his second request as the Union’s shop steward
for the bargaining unit, the Board had certified the Union as
the bargaining representative of that same unit. In June,
Smith had revealed his appointment as the Union’s shop
steward to Severin. Thus, I find that when Smith asked him
for the second report, in late July and early August, Severin
664 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
was on notice that Smith was doing so on the Union’s be-
half. Yet, there is no direct evidence showing that
Paccapaniccia was apprised of Smith’s status in August,
when Smith made his first written request for the second re-
port. However, I need not delve into whether circumstantial
evidence would support an inference that Paccapaniccia
knew of Smith’s status at that time. For I find that in Octo-
ber, Smith showed that he was acting for the Union, when
he made his second written request to Vice President
Paccapaniccia, and signed off on it as the Union’s shop stew-
ard.
When Paccapaniccia received Smith’s second written re-
quest, the Hospital had a general obligation to provide infor-
mation which was needed by the Union ‘‘for the proper per-
formance of its duties.’’ NLRB v. Acme Industrial Co., 385
U.S. 432, 435–436 (1967). The standard for determining the
relevance of requested information is a liberal one and it is
necessary only to establish ‘‘the probability that the desired
information is relevant and that it would be of use to the
union in carrying out its statutory duties and responsibil-
ities.’’ NLRB v. Acme Industrial Co., supra at 437. Accord:
Pony Express Courier Co., 286 NLRB 1286, 1288 (1987).
As the Board held in American National Can Co., 293
NLRB 901, 904 (1989):
The health and safety of employees are terms and con-
ditions of employment, and thus mandatory subjects of
bargaining about which an employer is obligated to bar-
gain with the collective-bargaining representative of its
employees. [Citation omitted.]
Thus acquisition of the industrial safety and hygiene infor-
mation in the second report, to the extent it concerned the
engineering and maintenance department, was clearly rel-
evant to and necessary for the Union’s proper performance
of its general collective-bargaining responsibilities to assure
the Hospital’s compliance with state and Federal regulations
and thus protect the health and safety of the bargaining unit
employees. These concerns may be the subjects of negotia-
tions leading up to the execution of a collective-bargaining
agreement, or they may be taken up as grievances raised by
the Union even without a collective-bargaining agreement.
A further basis for the Union’s request for the second re-
port is the engineering and maintenance department’s respon-
sibility for the Hospital’s industrial safety and hygiene. Thus
matters discussed in the second report, dealing with those
concerns, were likely to impact on the unit employees’ duties
and work assignments, which are mandatory subjects of col-
lective bargaining. Alamo Cement Co., 277 NLRB 320, 323–
324 (1985). Here again, the information contained in the sec-
ond report was clearly relevant to and necessary to the
Union’s proper performance of its collective-bargaining re-
sponsibilities to the bargaining unit employees.
In sum, I find that the Hospital violated its collective-bar-
gaining obligation under the Act, when it refused to furnish
the second Comprehensive Report to David Smith, on Octo-
ber 30. Accordingly, I find that by that refusal the Hospital
violated Section 8(a)(5) and (1) of the Act. Curtiss-Wright
Corp., 347 F.2d 61, 68 (3d Cir. 1965); Ohio Power Co., 216
NLRB 987, 995 (1975).
CONCLUSIONS OF LAW
1. The Respondent, Indiana Hospital, a wholly owned sub-
sidiary of Indiana Health Care Corporation, is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. The Union, International Union of Operating Engineers,
Local 95-95A, AFL–CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By issuing an evaluation to its employee David Smith,
criticizing his attitude and performance because he supported
the Union, Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(3) and (1) of the Act.
4. By issuing a verbal written warning to David Smith be-
cause he supported the Union, the Respondent engaged in
unfair labor practices within the meaning of Section 8(a)(3)
and (1) of the Act.
5. By prohibiting its maintenance employees from taking
lunch and breaks in the powerhouse and by changing the
work schedules of its employees Charles P. Huston and
Thomas G. Shaffer Sr., because they supported the Union,
the Respondent violated Section 8(a)(3) and (1) of the Act.
6. At all times since September 19, 1991, the Union has
been, and continues to be, the exclusive representative of Re-
spondent’s employees in the following bargaining unit found
appropriate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act:
All full-time and regular part-time skilled maintenance
employees, including, biomedical technicians, operating
engineers, lead operating engineer, carpenters, elec-
tricians, painters, plumbers, HVAC mechanics, mainte-
nance mechanics, preventive maintenance employees,
lead grounds-keeper, parts room clerk and engineering
and maintenance department secretary employed by the
Employer at its facility located in Indiana, Pennsyl-
vania; excluding all business office clerical employees,
all technical employees and guards, professional em-
ployees and supervisor as defined in the Act, and all
other employees.
7. By unilaterally changing the wages, hours, and other
terms and conditions of employment of its bargaining unit
employees by changing its policy regarding snow removal,
changing the work schedules of its maintenance employees,
changing the work schedules of its employees Charles P.
Huston and Thomas G. Shaffer Sr., prohibiting its employees
from taking lunch and breaks in the powerhouse, and by fail-
ing and refusing to furnish the Union with the information
requested by it in writing on October 12, 1992, the Respond-
ent has violated Section 8(a)(5) and (1) of the Act.
8. The unfair labor practices found above affect commerce
within the meaning of Section 2(6) and (7) of the Act.
9. The Respondent has not violated Section 8(a)(3) and (1)
of the Act by changing the work schedules of its mainte-
nance employees.
10. The Respondent has not violated Section 8(a)(5) and
(1) of the Act by changing the job description of the position
of lead groundskeeper.
11. The Respondent has not violated Section 8(a)(5) and
(1) of the Act by changing its policy regarding the submis-
sion of requests for information.
665INDIANA HOSPITAL
23 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.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act. I shall recommend that the
Respondent be required to remove the critical comments
from the evaluation which it issued to David Smith on June
23, 1992, which I have found violative of the Act, and notify
him, in writing, that it has done so and that it will not use
these critical comments against him in any way.
I shall also recommend that the Respondent be required to
remove from its files any reference to the verbal written
warning it issued to David Smith on September 3, 1992,
which I have found violative of the Act, and notify him in
writing, that it has done so and that it will not use the warn-
ing against him in any way.
Having found that the Respondent has unilaterally changed
its maintenance employees’ work schedules, I shall rec-
ommend that the Respondent be required to restore their
work schedules to the status quo before those changes were
made, by discontinuing the assignment of general mainte-
nance mechanics to the night shift on weekends. Having
found that the Respondent unilaterally discontinued its prac-
tice of allowing maintenance employees to take lunch and
breaks in the powerhouse, I shall recommend that the Re-
spondent be required to resume that practice. Having found
that the Respondent unilaterally changed its policy regarding
the assignment of snow removal duties, when no employees
volunteer to perform such duties, I shall recommend that the
Respondent be required to rescind those changes, which it
added to its written policy in November 1992.
Having found that on, and since October 30, 1992, the Re-
spondent has unlawfully refused to furnish to the Inter-
national Union of Operating Engineers, Local 95-95A, AFL–
CIO a report prepared by Comprehensive Safety Compliance,
Inc. covering the Hospital’s industrial safety and hygiene, I
shall recommend that the Respondent be required to furnish
that report to Local 95-95A on request.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended23
ORDER
The Respondent, Indiana Hospital, a wholly owned sub-
sidiary of Indiana Health Care Corporation, Indiana, Pennsyl-
vania, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discouraging membership in or support for the Union,
International Union of Operating Engineers, Local 95-95A,
AFL–CIO or any other labor organization by discriminating
against employees on their performance evaluations, or by
disciplining employees or by changing their work schedules
or by prohibiting them from taking lunch and breaks in the
powerhouse or by otherwise discriminating against them in
any manner with respect to their hire, tenure of employment,
or terms and conditions of employment, because of their
union membership, sympathies, or activities.
(b) Refusing to bargain in good faith with the Union as
the exclusive representative of its employees with respect to
rates of pay, wages, hours of employment, and other terms
and conditions of employment, in an appropriate unit consist-
ing of:
All full-time and regular part-time skilled maintenance
employees, including, biomedical technicians, operating
engineers, lead operating engineer, carpenters, elec-
tricians, painters, plumbers, HVAC mechanics, mainte-
nance mechanics, preventive maintenance employees,
lead grounds-keeper, parts room clerk and engineering
and maintenance department secretary employed by the
Respondent at its facility located in Indiana, Pennsyl-
vania; excluding all business office clerical employees,
all technical employees and guards, professional em-
ployees and supervisor as defined in the Act, and all
other employees.
(c) Making unilateral changes in the hours of employment,
the policy regarding use of the powerhouse for taking lunch
and breaks, the policy regarding assignment of snow removal
duties, or in other terms of conditions of employment cover-
ing bargaining unit employees, without prior notice to, or
bargaining with, the Union, as the exclusive representative of
the bargaining unit described above.
(d) Refusing to furnish to the Union the information which
it requested in its letter of October 12, 1992, and such other
information as the Union may request, which is necessary
and relevant to the Union’s performance of its function as
the exclusive bargaining representative of the bargaining unit
described above.
(e) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Remove the critical comments from the evaluation
which it issued to David Smith on June 23, 1992, and notify
him, in writing, that it has done so and that it will not use
these critical comments against him in any way.
(b) Remove from its files any reference to the verbal writ-
ten warning it issued to David Smith on September 3, 1992,
and notify him in writing, that it has done so and that it will
not use the warning against him in any way.
(c) Notify and give the Union an opportunity to bargain
about any changes in the unit employees’ terms and condi-
tions of employment, including the changes in the work
schedules of the maintenance employees, the change in the
policy regarding lunch and breaks in the powerhouse, and the
change in the policy regarding the assignment of snow re-
moval duties.
(d) On the Union’s request, rescind the changes in the
maintenance employees’ work schedules which were effec-
tive in early June 1992.
(e) On the Union’s request, rescind the prohibition against
taking lunch and breaks in the powerhouse, which was effec-
tive on June 5, 1992, and restore the policy which permitted
such use of the powerhouse by bargaining unit employees.
(f) On the Union’s request, rescind the policy changes re-
garding the assignment of snow removal duties, which be-
came effective in November 1992, and restore the policy
which had been in effect immediately prior to those changes.
666 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
24 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.’’
(g) On request, furnish to the Union, in writing, all of the
information requested in its letter to the Respondent, dated
October 12, 1992.
(h) Post at its office in Indiana, Pennsylvania, copies of
the attached notice marked ‘‘Appendix.’’24 Copies of the no-
tice, on forms provided by the Regional Director for Region
6, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(i) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT discourage membership in or support for the
Union, International Union of Operating Engineers, Local
95-95A, AFL–CIO or any other labor organization by dis-
criminating against David Smith or any other employees on
their performance evaluation, or by disciplining them or by
changing the work schedules of Charles P. Huston and
Thomas G. Shaffer Sr. or any other employees, or by prohib-
iting our employees from taking lunch and breaks in the
powerhouse or by otherwise discriminating against them in
any manner with respect to their hire, tenure of employment,
or terms and conditions of employment, or terms and condi-
tions of employment because of their union membership,
sympathies or activities.
WE WILL NOT refuse to bargain in good faith with the
Union as the exclusive representative of its employees with
respect to rates of pay, wages, hours of employment, and
other terms and conditions of employment, in an appropriate
unit consisting of:
All full-time and regular part-time skilled maintenance
employees, including, biomedical technicians, operating
engineers, lead operating engineer, carpenters, elec-
tricians, painters, plumbers, HVAC mechanics, mainte-
nance mechanics, preventive maintenance employees,
lead grounds-keeper, parts room clerk and engineering
and maintenance department secretary employed by In-
diana Hospital at its facility located in Indiana, Pennsyl-
vania; excluding all business office clerical employees,
all technical employees and guards, professional em-
ployees and supervisor as defined in the Act, and all
other employees.
WE WILL NOT make unilateral changes in the hours of em-
ployment, the policy regarding use of the powerhouse for
taking lunch and breaks, the policy regarding assignment of
snow removal duties, or in other terms of conditions of em-
ployment covering our bargaining unit employees, without
prior notice to, or bargaining with, the Union, as the exclu-
sive representative of the bargaining unit described above.
WE WILL NOT refuse to furnish to the Union the informa-
tion which it requested in its letter of October 12, 1992, and
such other information as the Union may request, which is
necessary and relevant to the Union’s performance of its
function as the exclusive bargaining representative of the bar-
gaining unit described above.
WE WILL NOT in any like or related manner interfere with,
restrain, or coercing you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL remove the critical comments from the evalua-
tion which we issued to David Smith on June 23, 1992, and
notify him, in writing, that we have done so and that we will
not use these critical comments against him in any way.
WE WILL remove from our files any reference to the
verbal written warning we issued to David Smith on Septem-
ber 3, 1992, and notify him in writing, that we have done
so and that we will not use the warning against him in any
way.
WE WILL notify and give the Union an opportunity to bar-
gain about any changes in the unit employees’ terms and
conditions of employment, including the changes in the work
schedules of the maintenance employees, the change in the
policy regarding lunch and breaks in the powerhouse, and the
change in the policy regarding the assignment of snow re-
moval duties.
WE WILL, on the Union’s request, rescind the changes in
the maintenance employees’ work schedules which were ef-
fective in early June 1992.
WE WILL, on the Union’s request, rescind the prohibition
against taking lunch and breaks in the powerhouse, which
was effective on June 5, 1992, and restore the policy which
permitted such use of the powerhouse by bargaining unit em-
ployees.
WE WILL, on the Union’s request, rescind the policy
changes regarding the assignment of snow removal duties,
which became effective in November 1992, and restore the
policy which had been in effect immediately prior to those
changes.
WE WILL, on request, furnish to the Union, in writing, all
of the information requested in its letter to us, dated October
12, 1992.
INDIANA HOSPITAL, A WHOLLY OWNED SUB-
SIDIARY OF INDIANA HEALTH CARE COR-
PORATION