Mercy Health Partners, Hackley Campus

National Labor Relations Board - Administrative Judge Opinions

May 8, 2015

07-CA-133887 (N.L.R.B. May. 8, 2015)

JD–28–15
Muskegon, MI

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
MERCY HEALTH PARTNERS,
HACKLEY CAMPUS Cases 07–CA–133887
07–CA–134026
and
NATIONAL UNION OF HEALTHCARE
WORKERS (NUHW) 07–CB–133889
07–CB–134027
and
DISTRICT LODGE 60, INTERNATIONAL
ASSOCIATION OF MACHINISTS AND
AEROSPACE WORKERS (IAM), AFL–CIO 07–CB–133890
07–CB–134028
and
HASAN ZAHDEH, an Individual
and
PATRICIA KELLY, an Individual
Colleen J. Carol, Esq.
for the General Counsel.
Keith J. Brodie, Esq.
for the Respondent Employer.
William H. Haller, Esq.
for the Respondent Unions.
DECISION
STATEMENT OF THE CASE
THOMAS M. RANDAZZO, Administrative Law Judge. This case was tried in Grand
Rapids, Michigan on January 12, 2015, on unfair labor practice allegations set forth in an order
further consolidating cases, second consolidated complaint and notice of hearing issued by the
General Counsel on October 29, 2014.1 The allegations litigated were based on charges filed by

1 All dates are in 2014 unless otherwise indicated.
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2
individuals Hasan Zahdeh (Charging Party Zahdeh) in cases 07–CA–133887, 07–CB–133889,
and 07–CB–133890, and by Patricia Kelly (Charging Party Kelly) in cases 07–CA–134026, 07–
CB–134027, and 07–CB–134028, which were the remaining allegations after the issuance of the
General Counsel’s order on January 6, 2015, severing cases and approving withdrawals,
dismissing consolidated complaint, and withdrawing cases.25
The second consolidated complaint alleges that Respondent Mercy Health Partners,
Hackley Campus (Respondent MHP) violated Section 8(a)(3) and (1) of the National Labor
Relations Act (the Act) by applying superseniority language at the request of Respondent District
Lodge 60, International Association of Machinists and Aerospace Workers (IAM), AFL–CIO 10
(Respondent IAM), the servicing agent of National Union of Healthcare Workers (NUHW)
(Respondent NUHW), to ensure that Respondent IAM union steward Lynn Hartman maintained
first-shift preference over other Hackley Tech Unit employees, including Charging Party Kelly,
thereby encouraging employees to join or assist Respondent IAM and Respondent NUHW. The
second consolidated complaint also alleges that Respondent IAM and Respondent NUHW 15
violated Section 8(b)(2) of the Act by causing Respondent MHP to discriminate against
employees who were not union stewards by denying those employees their shift preference and
seniority rights, and 8(b)(1)(A) of the Act by failing to represent Charging Party Kelly for
reasons that are arbitrary, discriminatory, or in bad faith, thereby breaching the duty of fair
representation it owed to Charging Party Kelly and the other unit employees. 20
On the entire record,3 including my observation of the demeanor of the witnesses,4 and
after considering the briefs filed by the General Counsel and Respondent Employer, and the
proposed findings of law filed by the Respondent Unions, I make the following

2 A full description of the pleadings are as follows: On July 31, 2014, a consolidated complaint and
notice of hearing issued in cases 07–CA–124263, 07–CB–124264 and 07–CB–124265 on charges filed
by Diane Lynn Smit, an Individual (Charging Party Smit). Charging Party Zahdeh filed the charge in
case 07–CA–133887 on August 1, 2014 (and an amended charge on September 17, 2014), and the
charges in 07–CB–133889 and 07–CB–133890, also on August 1, 2014 (and an amended charge in 07–
CB–133890 on September 17, 2014). Charging Party Kelly filed charges in 07–CA–134026, 07–CB–
134027, and 07–CB–134028 on August 4, 2014. On October 29, 2014, the General Counsel issued an
order further consolidating cases, second consolidated complaint and notice of hearing, consolidating
cases 07–CA–124263, 07–CB–124264 and 07–CB–124265 with cases 07–CA–133887, 07–CB–133889,
07–CB–133890, 07–CA–134026, 07–CB–134027 and 07–CB–134028.
On December 22, 2014, Charging Party Smit requested withdrawal of the charges in 07–CB–
124264 against Respondent NUHW, and in 07–CB–124265 against Respondent IAM, having resolved all
issues to her satisfaction, and on January 2, 2015, Respondent MHP and Charging Party Smit entered into
an informal Board Settlement Agreement in 07–CA–124263. (GC Exh. 1(w)). On that basis, on January
6, 2015, the General Counsel issued an order severing cases 07–CA–124263, 07–CB–124264 and 07–
CB–124265 from 07–CA–133887, 07–CB–133889, 07–CB–133890, 07–CA–134026, 07–CB–134027
and 07–CB–134028, and an order approving withdrawals, dismissing consolidated complaint, and
withdrawing notice of hearing in cases 07–CB–124264 and 07–CB–124265.
3 Abbreviations used in this decision are as follows: “Tr.” for transcript; “GC Exh.” for General
Counsel’s Exhibit; “RE Exh.” for Respondent Employer’s Exhibit; “RU Exh.” for Respondent Unions’
Exhibit; “Jt. Exh.” for Joint Exhibit; “GC Br.” for the General Counsel’s Brief; “RE Br.” for Respondent
Employer’s brief; and “RU Br.” for Respondent Unions’ brief.
4 In making my findings regarding the credible evidence, including the credibility of the witnesses, I
considered the testimonial demeanor of such witnesses, the content of the testimony, and the inherent
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3
FINDINGS OF FACT
I. JURISDICTION
5
The Respondent Employer, a nonprofit corporation with a facility in Muskegon,
Michigan (the Hackley Campus), has been engaged in the operation of a hospital providing
inpatient and outpatient medical care. Annually, Respondent MHP, in conducting its operations
described above, derived gross revenues in excess of $250,000, and purchased and received at its
facility, good, supplies and materials valued in excess of $5,000 directly from points outside the 10
State of Michigan.
The Respondent Employer 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. The Respondent Unions admit, and I
find, that Respondent NUHW and Respondent IAM have been labor organizations within the 15
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
20
A. The Facts
1. The Hackley Hospital and Mercy Hospital were separate hospitals with separate units that
were merged by Respondent Mercy Health Partners in 2008.
25
In 2007 the Tech Unit at Hackley Hospital became represented by the Service Employees
International Union Healthcare Michigan (SEIU) as a result of a merger with the then-existing
LPN unit. Hackley Hospital and the SEIU negotiated a collective-bargaining agreement for that
unit of employees that was effective by its terms from January 30, 2008 to May 31, 2010. (Jt.
Exh. 1). In 2008, Respondent Mercy Health Partners, which already operated Mercy General 30
Health Partners, an acute care hospital in Muskegon, Michigan, acquired Hackley Hospital,
which is also an acute care hospital in Muskegon.
On April 2, 2008, Respondent MHP merged the two hospitals but continued to operate
both hospital locations as separate campuses--the Mercy Campus and the Hackley Campus--and 35
it continued to recognize the separate bargaining units. As a result, there were four bargaining
units at each campus that had different collective-bargaining agreements, and in some cases,
different labor organizations representing certain units of employees. Robin Belcourt,
Respondent MHP’s director of labor relations at that time, testified that the four bargaining units
at the Mercy campus consisted of an RN Unit, an LPN Unit, a Service and Support Unit, and a 40

probabilities based on the record as a whole. In certain instances, I may have credited some but not all, of
what the witness said. I note, in this regard, that “nothing is more common in all kinds of judicial
decisions than to believe some and not all” of the testimony of a witness. Jerry Ryce Builders, 352 NLRB
1262 fn. 2 (2008), citing NLRB v. Universal Camera Corp., 179 F.2d 749, 754 (2d Cir. 1950), revd. on
other grounds 340 U.S. 474 (1951). See also J. Shaw Associates, LLC, 349 NLRB 939, 939–940 (2007).
In addition, I have carefully considered the testimony in contradiction to my factual findings, but I have
discredited such testimony.
JD–28–15
4
Tech II Unit, and all were represented by the SEIU. The Hackley campus had four different
bargaining units: the RNs were represented by the Michigan Nurses Association (MNA); the
LPN/Tech Unit, the Laboratory Tech Unit, and the Service and Maintenance Unit were
represented by the SEIU. According to Belcourt, the LPN component was subsequently
eliminated from the LPN/Tech Unit, and that unit became the Hackley Tech Unit, which is the 5
unit involved in this case.
The Hackley Tech Unit includes employees in several different departments, including
Surgery, OB, Respiratory, Diagnostic Imaging/Radiology, Vascular, and others. (Jt. Exh. 1, at
Tab 2, Section 1.3(B)). The record establishes that there are approximately 87 employees in the 10
bargaining unit, and approximately 80 percent of the employees work on the first shift due to the
fact that the majority of the unit employees are involved with diagnostic testing and treatment of
out-patients, procedures of which are scheduled during the daytime or first-shift hours. The
parties stipulated that the Hackley Tech Unit is described in a “Corrected Certification of
Representative” dated January 13, 2012 as the following:15
All full-time and regular part-time certified and registered respiratory therapists,
surgical technologists, EKG technicians, physiology technicians,
polysomnography technicians, physiology sonography technicians, registered
radiological technologists, CT technologists, nuclear med technologists, 20
diagnostic cardiac sonographers, diagnostic vascular sonographers, diagnostic
medical sonographers, lead diagnostic medical sonographers, special procedure
technologists, mammography technologists, cardiovascular interventional
technologists, radiology clinical instructors, and Radiology Techs/Vascular Techs
required to hold registration, certification, licensure from the State of Michigan or 25
other specified registering bodies or who are in the process of obtaining such
credentials, employed by the Employer at its Hackley Campus located at 1700
Clinton Street and 6401 Prairie Street, Muskegon, Michigan; but excluding
clerical Associates, confidential Associates, managerial associates, supervisory
Associates, relief, and guards and supervisors as defined in the Act, and all other 30
Associates. (GC Exh. 2).
2. Respondent MHP and the SEIU negotiated a Transfer of Work Agreement in February
2009 to deal with the removal of work at one campus that was transferred to the other
campus.35
As a result of the hospital merger, Respondent MHP and the SEIU met to address the
impact of the merger and what would happen in the event that work or job positions were
transferred from one hospital campus to the other. In February 2009, Respondent MHP and the
SEIU entered into a letter of understanding entitled “Permanent Transfer/Relocation of Work,” 40
which is also referred to by the parties as the “Transfer of Work Agreement.” (Jt. Exh. 2).5
Belcourt testified that before the Transfer of Work Agreement was implemented, work
transferred from one hospital campus to the other required Respondent MHP to eliminate the
work at the one campus and lay off the affected employee, and then post the identical position at

5 Belcourt testified that the Transfer of Work Agreement was never signed, but the parties have
continued to operate according to its terms.
JD–28–15
5
the other facility. Belcourt testified that the Transfer of Work Agreement afforded employees
affected by the transfer of their work with the right, if exercised, to move with the work.
According to Belcourt, the Transfer of Work Agreement was utilized numerous times by
the parties when work was permanently transferred or relocated from one hospital campus to the 5
other, which resulted in the elimination of positions. She testified that the Transfer of Work
Agreement does not identify the person who is affected by the elimination of the position, but the
practice of the parties was to utilize the layoff provision of the collective-bargaining agreement
to identify the person affected. Belcourt testified that the Transfer of Work Agreement was not
part of the collective-bargaining agreement, but was an agreement by the parties used to provide 10
the employee affected by the transfer of work with the additional rights or opportunities to
transfer with the work.
The Transfer of Work Agreement provides, in relevant part:
15
1. When work is being transferred to another bargaining unit located on another
MHP campus and the transfer of work results in the elimination of a position, the
employee whose job is being eliminated will be given the opportunity to follow
the work. In the event there are not enough positions on a comparable shift in the
department receiving the work for the number of impacted employees, the 20
positions will be filled on the basis of seniority using a combined seniority list
between both SEIU bargaining units. The impacted employee will become a
member of the SEIU bargaining unit at the receiving campus which includes their
job classification.
2. In the event that there are not enough positions in the unit receiving the work to 25
accommodate the impacted employees, these employees will be given the
opportunity to exercise his/her displacement/bumping rights in accordance with
the provisions of his/her current collective bargaining agreement in an attempt to
avoid a layoff.
3. In the event the impacted employee does not wish to transfer with his/her work, 30
he/she will be given the opportunity to exercise his/her displacement/bumping
rights in accordance with the provision of his/her current collective bargaining
agreement in an attempt to avoid a layoff.
Under the Transfer of Work Agreement, when work is transferred from one hospital to another, 35
the employee whose job was eliminated is provided the opportunity or option to transfer to the
other hospital with the work, without any loss of benefits. If the employee decides not to transfer
with the work, he/she is allowed to bump within their own department. If the employee decides
not to exercise either of those two options, he/she would then suffer a layoff.
40
3. On or about November 30, 2011, Respondent MHP implemented the terms of its last,
best and final offer.
After the 2008–2010 collective-bargaining agreement expired on May 31, 2010,
Respondent MHP and the SEIU engaged in negotiations throughout 2010 and 2011 for a 45
successor agreement. A successor collective-bargaining agreement was reached, but the
ratification vote failed twice. The parties reached impasse on or about November 30, 2011.
JD–28–15
6
Thereafter, Respondent MHP unilaterally implemented its last, best, and final offer and the
associated tentative agreements.
The record establishes that the “status quo” or “Implemented Terms” consist of
Respondent MHP’s last, best, and final offer, with the tentative agreements, and to the extent that 5
those provisions did not change the prior agreement, the terms of the expired SEIU collective-
bargaining agreement. (Jt. Exh. 1). These Implemented Terms set forth the terms and conditions
of employment for the Hackley Tech Unit employees. Since there has been no ratified
successive collective-bargaining agreement, the working conditions for the unit employees have
been governed by the Implemented Terms from on or about November 30, 2011 to the present. 10
4. On January 13, 2012, Respondent NUHW became the collective-bargaining
representative of the Hackley Tech Unit.
Approximately 1 month after the Implemented Terms were imposed on the Hackley Tech 15
Unit, the employees in that unit voted to have Respondent NUHW as its union representative,
and Respondent NUHW was thereafter certified on January 13, 2012. (GC Exh. 2). Respondent
NUHW’s bargaining committee included Hasan Zahdeh, who later became chief steward, and
Michele Seeger, a Respiratory Department employee.
20
Since the Hackley Tech Unit was no longer represented by the SEIU, in the spring of
2012, an issue arose as to whether the Transfer of Work Agreement would continue to be
applicable to the Hackley Tech Unit employees. In Case No. 07–CA–073242, Respondent
NUHW alleged, inter alia, that Respondent MHP violated the Act by changing the employees’
working conditions by ceasing to allow cross-campus transfers of employees as permitted by the 25
Transfer of Work Agreement, without affording Respondent NUHW an opportunity to bargain
over that change. (GC Exh. 3). In that case, the parties entered into an Informal Board
Settlement Agreement whereby Respondent MHP agreed to apply the terms of the Transfer of
Work Agreement to the Hackley Tech Unit, and the settlement was approved by the Regional
Director for Region 7 on June 6, 2012. (GC Exh. 3). The record establishes that the parties are 30
therefore in agreement that the Transfer of Work Agreement is applicable to the issue of Kelly’s
transfer to the Mercy campus. (Tr. 134–135).
5. On September 20, 2012, the Hackley Tech Unit became represented by Respondent IAM.
35
On September 20, 2012, Respondent NUHW entered into a servicing agreement with
Respondent IAM, whereby Respondent IAM was empowered with full representational
responsibility for the Hackley Tech Unit. In May 2013, Respondent IAM removed all of the
elected stewards, except Michelle (Shelly) Seeger from the respiratory department. It then
appointed Shawn Nutt (from the vascular department), Lynn Hartman (from the radiology 40
department), and Autumn Witteveen (from the surgery department) as union stewards.6

6 Subsequent to the transfer of the fluoroscopy work, the exercise of superseniority by Hartman, and
the transfer of Kelly to the Mercy campus, which are the matters at issue in this case, a stipulated election
between Petitioner Respondent IAM and Petitioner Michigan Union of Healthcare Workers (MUHW)
was conducted by the National Labor Relations Board to determine the collective-bargaining
representative of the Hackley Tech Unit. In that regard, Petitioner MUHW won the election, and on
October 9, 2014, in Representation case No. 07–RC–111849 and 07–RC–116273, the NLRB certified that
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6. The relevant Implemented Terms governing the terms and conditions of employment for
the Hackley Tech Unit employees.
The Implemented Terms that define the terms and conditions of employment for the 5
Hackley Tech Unit employees include of an article pertaining to the layoff of employees. In that
regard, article XI provides, inter alia, the following:
Article XI, Layoff/Recall, Section 11.1 Layoff Defined:
A layoff shall be defined as reduction in the work force or hours of work 10
within a department. In the event of a mandatory time off of less then
[sic] eight hours it will be done on the basis of seniority. If a layoff
becomes necessary it shall be by shift and the following order will be
followed:
(a) Temporary employees.15
(b) Probationary employees provided the remaining employees are
qualified to perform the work.
(c) Management or employees will request a voluntary reduction
in hours to meet the reduction needs. Voluntary reduction of
hours will be granted based on operational efficiency and in 20
descending seniority order.
(d) If further reductions are necessary, the Hospital shall identify
the position(s) to be eliminated or reduced based upon seniority
and budgeted status.
25
Section 11.2 Employee Displacement:
Recognizing that the Hospital must have qualified employees at all times
the displaced employee will notify the Hospital no later than 72 hours after
notification of whom they intend to displace. An Associate whose
position is eliminated or laid off may accept the layoff or exercise one of 30
the following options (1–2) which is available:

a majority of the valid ballots in the election had been cast for the MUHW. Thus, on that date the
MUHW was certified as the collective-bargaining representative of the Hackley Tech Unit. (GC Exh. 9).
The record reveals that Hasan Zahdeh was elected interim president of the MUHW, and the union
stewards consisted of Seeger (from the respiratory department), Brenda Chilcote (from the surgery
department), Darcy Welsh (from the surgery department), and Krista Bignall Cadriel (from the OB
department).
In its brief, the General Counsel references events during this time period which occurred after
Respondent IAM represented the bargaining unit. Specifically, it asserts that in October 2014, there was
a transfer of outpatient vascular work from the Hackley campus to the Mercy campus and Shawn Nutt,
the highest senior employee, volunteered as the employee to transfer, which differed from the procedure
involved in Kelly’s transfer. (GC Br. at p. 11). I find the October 2014 transfer is not relevant to the
issues in the instant case because it occurred after Kelly’s transfer, it involved a different union than the
Respondents NUHW and IAM, and the record demonstrates that the Nutt transfer was pursuant to an
agreement negotiated between Respondent MHP and the MUHW, whereby they agreed to abandon the
Transfer of Work Agreement and use a different procedure for determining who would be affected by the
transfer of work. Accordingly, I provide no weight to these facts or any arguments relying on them.
JD–28–15
8
1. Select from a vacant position, with equal or less hours, within the bargaining
unit in which the Associate has the required qualifications to perform the
duties of the position;
2. Displace the least senior associate within their classification within the same 5
shift with either equal or greater hours with the same benefit eligibility status;
if not available, the Associate may choose one of the following options (3–4);
3. Displace the least senior associate within their classification on a different
shift with either equal or greater hours with the same benefit eligibility status;
or, 10
4. Displace the least senior associate within their classification within the same
shift with lesser hours; or if not available,
5. Displace the least senior associate within their classification on a different
shift with lesser hours.
15
If an Associate is unable to maintain his/her budgeted status by exercising
any of the above options, the Associate may displace the least senior associate
with the same eligibility status, within the bargaining unit, provided the Associate
meets the required qualifications to perform the duties of the position as presented
in the job description and with minimal training, generally not to exceed but not 20
less than two (2) weeks. If the Associate cannot displace a less senior associate
with the same eligibility status, he/she may displace the least senior associate at a
lower eligibility status within the bargaining unit, provided the associate meets the
required qualifications to perform the duties of the position as presented in the job
description and with minimal training, generally not to exceed but not less than 25
two (2) weeks. (Jt. Exh. 1).
There is no specific mention of the Transfer of Work Agreement in article 11 of the
Implemented Terms. Article XIII, 13.2 is the only portion of the Implemented Terms that
specifically references the Transfer of Work Agreement. Section 13.2 (Vacancies) states that:30
Positions that result from transfer of work as defined in the Transfer of Work
Agreement between the hospital and the [SEIU] bargaining units…shall be
governed by that Agreement and any provisions herein contrary to that
Agreement shall not apply to such positions. (J Exh. 1). 35
Article X details the definition and use of seniority in the Hackley Tech Unit. Section
10.2 defines seniority as “the length of continuous employment on the Hospital records from the
Associate’s last date of hire into the bargaining unit.” (Jt. Exh. 1). Seniority is used to determine
the positions and rights of employees in both benefit situations, as well as situations that may 40
negatively impact employment.
Superseniority for union stewards is found in article I, Section 1.3(H), which provides
that “[f]or the purposes of Call to Stay Home, layoff and recall only, the stewards during the
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9
term of office shall hold top seniority, recognizing that the Hospital must have qualified
associates in all sections at all time (sic).” (Jt. Exh. 1).7
7. The transfer of the fluoroscopy work from the Hackley campus to the Mercy campus in
the Spring/Summer of 2014.5
In or around December 2013, Respondent MHP informed Respondent IAM that it was
considering transferring all outpatient fluoroscopy procedures from the Hackley campus to the
Mercy campus. (RE Exh. 1; Tr. 159).8 Fluoroscopy is a type of x-ray and it is work that is
performed by the radiology techs. The record reveals that all radiology techs were required to 10
perform fluoroscopy procedures, and they perform those procedures on a regular basis. In the
summer of 2014, Respondent MHP’s two fluoroscopy machines were moved from the Hackley
campus to the Mercy campus. As a result of the transfer of work, Respondent MHP determined
that one full-time radiology tech would be affected and offered the opportunity to transfer with
the work pursuant to the Transfer of Work Agreement. 15
Although the person who was to be affected was not yet identified at that time, the parties
agreed that superseniority would be applied to protect the stewards since a position was being
eliminated at the Hackley campus. In this connection, Stewart credibly testified that in a
negotiating session on December 13, 2013, there was extensive discussion between the parties in 20
terms of clarifying the application of the superseniority provision to the union stewards in the
case of a layoff. According to Stewart, the parties agreed that the superseniority provision was
applicable to a layoff situation, and that it applied to the stewards. (Tr. 158–159).9 In addition,
Stewart testified that the parties agreed that superseniority would apply to the transfer of
fluoroscopy work since a position was being eliminated, and that was essentially tantamount to a 25
layoff. The record reveals that the matter was again discussed in negotiating sessions between
the parties on April 21, 2014, May 29, 2014 and July 24, 2014. (RE Exh. 2; RU Exh. 2, RU Exh.
3, Tr. 161–162, 165).
At the May 29, 2014 negotiating session, Ken Urganski, Respondent MHP’s vice 30
president of clinical operations, informed Respondent IAM representatives that Respondent
MHP interpreted the Transfer of Work Agreement to mean that the affected tech employee
would be selected by shift seniority. The record establishes that the least senior full-time
radiology tech on first shift was Lynn Hartman. Kelly was then the next least senior full-time
radiology tech on first shift. The only full-time radiology tech in the department with less 35
seniority than Hartman was Joe Etterman, who worked on the second shift.

7 The superseniority provision applies to “call to stay home” hours which are described as situations
where there is not enough work for all techs scheduled (the “available work does not warrant they work
their scheduled shift”) and the low senior tech is “called to stay home.” (See Jt. Exh. 1 at tab 1, sec.
12.7(A) of the Implemented Terms). The record establishes that the “call to stay home” aspect of the
superseniority provision is not at issue in this case.
8 Respondent MHP’s decision and ability to transfer the fluoroscopy work is not at issue in this case.
9 Consistent with Stewart’s testimony, the bargaining notes from the December 13, 2013 session
reflect that the superseniority issue was clarified in that meeting, and it was determined that it applied to
the union stewards. (RE Exh. 1).
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10
At the meeting on May 29, 2014, Hartman asked whether special procedure techs would
be immune from the effect of the transfer. (Tr. 252). When she was informed that special
procedures techs would not be shielded, and that the tech would be chosen by shift seniority,
Hartman indicated that Kelly would be the employee who would be transferred. (Tr. 98).
5
8. On July 31, 2014, Respondent MHP informed Kelly that fluoroscopy work was being
removed from the unit and that she would be the person affected by the transfer of work.
On July 31, 2014, Mark Stewart, Respondent MHP’s current director of labor relations,
sent an email to Respondent IAM president and business representative, Peter Jazdzyk, as well as 10
union stewards Shawn Nutt, Lynn Hartman, Autumn Witteveen and Michelle Seeger, the subject
of which was “Fluoral Work – Transfer of Work.” In that email, Stewart stated:
As we have recently discussed, the Hospital is proceeding to transfer the
outpatient fluoral work to the Mercy campus, resulting in the transfer of one 15
Hackley Technologist, who is being offered the opportunity to follow the work
and transfer into the Tech II Unit at the Mercy campus. Recall that in prior
discussions it was confirmed that Pat Kelly is the appropriate, affected individual.
We will be meeting with Pat this afternoon to notify her of this matter, and
provide her with a displacement notice and related information. She may: 20
- Choose to follow the job and transfer to the Tech II unit.
- Decline the opportunity, and exercise displacement rights.
- Decline the opportunity, elect not to exercise displacement rights, and take a
voluntary layoff. 25
I wanted to afford you this pre-emptive notice to ensure your awareness of this
development. Please call Scott or me if you have any questions. (GC Exh. 10).
On that day, after Stewart notified Respondent IAM and the union stewards of the 30
meeting via email, Kelly was called to a meeting in Stewart’s office and she was presented with
the choice to transfer with the fluoroscopy work to the Mercy campus, bump Etterman on second
shift, or be laid off. Respondent MHP presented Kelly with an “Option Form” (GC Exh. 6)
which informed her that, under Section 11.2 “Employee Displacement” of the Implemented
Terms, as an employee whose position was being eliminated, she could accept the layoff, or 35
exercise one of the following options which were available:
1. Select from a vacant position, with equal or less hours, within the bargaining
unit in which the Associate has the required qualification to perform the duties
of the position.40
2. Displace the least senior associate within their classifications within the same
shift with either equal or greater hours with the same benefit eligibility status;
if not available, the Associate may choose one of the following options (3-4).
3. Displace the least senior associate within their classification on a different
shift with either equal or greater hours with the same benefit eligibility status 45
or,
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11
4. Displace the least senior associate within their classification within the same
shift with lesser hours; or if not available,
5. Displace the least senior associate within their classification on a different
shift with lesser hours.
5
A memo dated July 31, 2014, to Kelly from Scott Hawkes, Respondent MHP’s labor relations
specialist, was attached to the “Option Form,” stating the subject of the memo was “Wage Rate
Result Due to Job Transfer or Exercise of Displacement Rights.” The memo listed the radiology
tech rates of pay for the Hackley Tech Unit and the rates of pay for the Registered Radiology
Tech II Unit. The memo also set forth the following “Adjustment” for Kelly, reflected by the 10
following bullet points:
 If you transfer to Tech II, your rate will be $27.90 (Red Circled at the top rate of the
job at Hackely.
o Your rate will be adjusted to $28.01 in December, due to a planned base wage 15
adjustment.
 If you elect to remain in the Hackley Tech Unit and exercise displacement rights, you
would bump Joe Etterman from a 1.0 FTE position on 2nd shift. The applicable pay
rate is $27.90, plus a $1.75/hour shift differential.
20
Even though the “Option Form” did not make specific reference to the Transfer of Work
Agreement, it is undisputed that the parties agreed the Transfer of Work Agreement was
applicable to the transfer of the Hackley Tech Unit fluoroscopy work, and the memo attached to
the form specifically stated that “transfer to Tech II” was an option for Kelly. In that connection,
Kelly, who was clearly aware she was being provided the option of transferring with her work, 25
signed and dated the Option Form on August 5, 2014, and chose to follow the work to the Mercy
campus by indicating on the form in her handwriting: “I choose to follow the work to Mercy
Campus.” (GC Exh. 6).
On July 31, 2014, several of the first-shift radiology techs asked Hartman whether Kelly 30
was going to be transferred and expressed their disapproval of the fact that Kelly would be
affected. (Tr. 88). On that date, Michelle Seeger sent an email to William Rudis, Respondent
IAM Grand Lodge Representative, informing him that “[t]he hospital is transferring the
fluoroscopy work to Mercy, and the good part of that is that they are following what was set up
in the transfer or work agreement; i.e., allowing one tech who will be affected to either transfer 35
over to the Mercy campus; or to “bump” someone with less seniority in the same department at
Hackley who is on a different shift; or to choose to be laid off.” (GC Exh. 11; Tr. 102). In that
email, she informed Rudis that “the problem” is that the person to be affected is supposed to be
the least senior, and that Hartman is the least senior. In her email, Seeger informed Rudis that
she believed “super seniority” is not applicable to that situation because it is for layoff and recall 40
only, and it was not a layoff situation since Hartman, as the least senior, could bump to second
shift at Hackley and she would not be laid off.
9. Kelly’s transfer to the Mercy campus in mid-August 2014, and the effect of the transfer
on Kelly.45
JD–28–15
12
The record establishes that Kelly began working at the Mercy campus in or around mid-
August 2014, shortly after executing the Option Form. While the Hackley Tech Unit was
represented by Respondent IAM, the Mercy campus Tech II Unit was represented by the SEIU,
so when Kelly transferred to Mercy, she became a member of the SEIU. Her duties at the Mercy
campus mirrored those she performed at the Hackley campus. Kelly testified that while she was 5
paid at her Hackley wage rate of $30.37 an hour for a few months, in mid-November 2014, she
was informed that her wages would be adjusted to the Mercy campus rate of $27.90 an hour.
Thus, starting in mid-November 2014, her hourly wage was reduced at the rate of $2.47 an hour
from the wage rate she was earning at the Hackley campus. In addition, Kelly testified that at the
Hackley campus, she had access to what was termed a “special procedures calls,” which paid 10
special procedures techs $3 per hour to be on call during off hours. The record establishes that
only four techs could perform special procedures at the Hackley campus--Kelly, David Weller,
Thomasine Thomas, and Hasan Zahdeh. Kelly testified that she performed special procedure
work at the Hackley campus for 48 hours every 2 weeks. (Tr. 84; 92). However, Kelly testified
that while working at the Mercy campus, she no longer had access to special procedures work. 15
Therefore, transferring with her work to the Hackley campus resulted in a reduction in Kelly’s
earnings on the basis of the $2.47 reduction in her hourly wage rate and in the loss of special
procedures work.
10. The union representation for the Hackley Tech Unit at the time the fluoroscopy work was 20
transferred.
The record reveals that the Hackley Tech Unit includes several different departments,
including surgery, OB, respiratory, diagnostic imaging/radiology, vascular, and others. (Jt. Exh.
1, tab 2, section 1.3(B)). Robin Belcourt, Respondent MHP’s former director or labor relations 25
and Mark Stewart, Respondent MHP’s current director of labor relations, credibly testified10 that
these departments are functionally different as they are in different locations of the hospital, they
are supervised by different managers, and they have different schedules. Stewart also testified
that there are provisions of the Implemented Terms which only apply to certain departments and
have no relevance to other departments, particularly in regard to scheduling issues such as on-30
call, overtime, and mandation.

10 The facts in this case are, for the most part, undisputed. However, on any occasions where the
testimonies of the Respondents’ witnesses may conflict with the testimonies of the General Counsel’s
witnesses, I credit the Respondents’ witnesses. Credibility determinations may rely on a variety of
factors, including the content of the witness’ testimony, the witness’ demeanor, the weight of the
evidence, established or admitted facts, reasonable inferences that may be drawn from the record as a
whole, and the inherent probabilities of the allegations. Double D Construction/ Group, 339 NLRB 303,
305 (2003); Daikichi Sushi, 335 NLRB 622, 623 (2001)(citing Shen Automotive Dealership Group, 321
NLRB 586, 589 (1996)), enfd. 56 Fed. Appx. 516 (D.C. Cir. 2003). My overall observation during the
trial was that the Respondent Employer’s and Respondent Unions’ witnesses were largely credible in their
testimony and demeanor, and that they testified in a convincing and straight forward manner indicative of
truthfulness. In particular, I find that Respondent MHP witnesses Robin Belcourt and Mark Stewart, and
Respondent IAM witnesses Karl Heim and Pete Jazdzyk appeared honest and forthright, and presented
very credible testimonies that were both believable and plausible. On the other hand, the General
Counsel’s witnesses testified in a less convincing manner.
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13
Article I, section 1.3 of the Implemented Terms governs union representation for the
Hackley Tech Unit employees. Section 1.3(B) provides that “. . . five bargaining unit members
chosen by the membership shall serve as stewards to represent [employees] in the grievance
procedure and on the negotiating committee.” The stewards represent employees in
radiology/vascular, respiratory, surgery, and physiology departments. This provision sets the 5
number of stewards that can come from these departments, stating specifically that the five union
stewards shall consist of two stewards from radiology/vascular, one from respiratory, one from
surgical, and one from physiology. (JE Exh. 1). Other departments that do not have specific
stewards are considered to be part of the radiology/vascular departments.
10
Stewart testified that the need for a steward in the physiology department was effectively
eliminated when the physiology department was previously transferred to the Mercy campus.
This left four union stewards from the following departments: radiology/diagnostic imaging,
vascular, respiratory, and surgery. Belcourt, who participated in negotiations for Section 1.3(B)
for Respondent MHP, testified that this provision was negotiated to “ensure that they had some 15
representation with expertise in the individual areas, because in each one of these areas, there
[are] little different nuances to the area.” (Tr. 126). Belcourt further testified that both parties
wanted this provision included in the collective-bargaining agreement because it helped
“facilitate explaining issues,…if somebody [is] in the area that works there, that understands the
nuances, you’re easier able to come to some conclusions…in situations where there [are] issues.” 20
(Tr. 127). Karl Heim served as Respondent IAM’s representative during the time period in
question until he retired from his union position in June 2014. Heim credibly testified that he felt
it was “very important, based on the nuances and the specialties of each department,” that issues
which arose in the individual departments be addressed and handled by the steward from that
department. 25
When the fluoroscopy work was transferred in the summer of 2014, the four union
stewards were Michelle Seeger from the respiratory department, Shawn Nutt from the vascular
department, Lynn Hartman from the radiology department, and Autumn Witteveen from the
surgery department. The stewards served as both department stewards and negotiating team 30
members. Zahdeh, who was a union steward when the Hackley Tech Unit was represented by
the SEIU and Respondent NUHU, testified that all union stewards were required to assist
employees in other departments in all representational capacities, and that there were several
departments that did not have a steward present. Seeger also testified that she had, on occasion,
performed union steward duties on the behalf of employees who worked outside of her 35
department.
Respondent MHP’s witnesses credibly testified that the union stewards for Respondent
IAM were very active in dealing with Respondent MHP’s managers with regard to negotiating a
contract and in dealing with issues that arose for employees in their respective departments 40
concerning unit employees’ terms and conditions of employment. Respondent IAM’s
negotiating committee consisted of the unit’s four stewards, plus a staff member of the Union.
Belcourt credibly testified that during the time that Respondent IAM represented the Hackley
Tech Unit, the union stewards and Respondent IAM officials met at least once a month from
September 2013 through July 2014 to negotiate a contract. According to Belcourt, Respondent 45
MHP had different managers for each department, and the union stewards interacted with their
JD–28–15
14
respective managers with regard to questions about terms and conditions of employment for the
employees in those departments.
Belcourt also testified that after the collective-bargaining agreement expired on May 31,
2010, and Respondent MHP’s last, best, and final offer was implemented, there was increased 5
uncertainty regarding the terms and conditions of employment for the unit employees. Belcourt
testified that due to that uncertainty, there was more interaction between the stewards and the
managers, and the increased interaction was particularly apparent on the day shift because most
employees worked that shift, and the managers all worked day shift. In addition, Belcourt also
testified that the union stewards’ knowledge of their departments was beneficial to handling and 10
resolving working condition issues because the Implemented Terms were not consistent on
certain topics between the different departments, such as the scheduling provisions, and that
there were differences in certain working conditions between the surgical techs, radiology techs,
and the vascular techs.
15
Stewart credibly testified that during the time that Respondent IAM represented the
Hackley Tech Unit, Respondent MHP and Respondent IAM held monthly “mutual interest”
meetings, which were attended by the stewards. At these meetings, which were held during the
first shift hours when the managers were present, the stewards discussed and attempted to
remedy issues regarding working conditions. Stewart testified that there were no managers or 20
supervisors with oversight responsibilities for the Tech Unit assigned to second or third shift, and
that all managers who were responsible for the Tech Unit worked exclusively during the first
shift. Stewart testified that even though no written grievances were filed by the union stewards
during the time Respondent IAM represented the unit employees, he had many verbal
discussions with stewards about working conditions and grievance matters, and he had spoken to 25
stewards about issues, concerns, and problems that were not necessarily identified as being part
of a grievance step. In this regard, Stewart testified that there were many questions about
whether the status quo had been violated and there were more shop floor operational issues in the
unit at that time because the parties were operating under the status quo and without a collective-
bargaining agreement in effect. Stewart also testified the reason that few grievances were filed 30
could have been attributed to the fact that there was no binding arbitration in effect at that time.
Heim credibly testified that the union stewards received complaints and concerns about
working conditions and terms of employment from unit members, and they then met with
management to try to resolve those issues or grievances. Similar to Respondent MHP’s 35
witnesses, he testified that the union stewards participated in negotiating committee meetings
held twice a month during the first shift, and that it would have been difficult to have the
stewards work other than on the first shift because that was when the managers worked and were
present at the facility. He testified that at the time, contract interpretation and administration
were discussed at the negotiation sessions and there was confusion in the unit about the 40
implemented terms and what terms to apply. Even though Heim serviced the Hackley Tech Unit
in Muskegon, Michigan, he lived a considerable distance away in Detroit. As such, Heim
testified that he had indicated at bargaining sessions and mutual interest meetings that he wanted
the union stewards and committee members to participate with management in an effort to
resolve work issues, and that issues pertaining to interpretation and application of the 45
implemented terms were handled by the stewards. Stewart also testified that it was his
JD–28–15
15
understanding from Heim that the stewards had the authority to conduct day-to-day union
business relative to the administration of the contract (Implemented Terms) and resolve issues.
Despite the fact that Heim testified he did not recall any grievances being filed by the
stewards at that time, he testified that workplace issues were adjusted to conclusion by the 5
stewards, such as vacation, paid time off allocations and accounting, overtime, and extraneous
overtime issues. He also testified that there were specific examples of settlement or resolution of
issues by the stewards, including a vacation issue in the respiratory department and an overtime
issue in the radiology department. Heim testified that after the stewards had resolved matters, he
would follow up with Stewart to confirm the understanding of the agreement reached by the 10
stewards. Heim also testified that it was important for stewards to handle matters that arose from
their own departments because they were familiar with those areas. With regard to grievances
filed by the union stewards, Hartman testified that she filed one grievance in 2014 for a tech
employee in the radiology department. (Tr. 258).
15
Pete Jazdzyk, who replaced Heim as the Respondent IAM representative in June 2014,
also credibly testified that he was involved in the negotiation sessions with the union stewards
and that it would have been difficult for the stewards to represent the needs of the unit if they
were not working on the first shift. He testified that if the stewards worked second or third
shifts, the Respondent Employer would have had to change their schedules and move personnel 20
to the off-shifts in order to have the stewards moved to first shift when the managers were
present and the bargaining was taking place. Jazdzyk also testified that the union stewards
addressed issues that arose in their departments at the bargaining sessions and in meetings with
management. Jazdzyk testified that one issue in particular that was resolved by the stewards was
a grievance concerning the posting of job positions for work that was transferred from the Mercy 25
campus to the Hackley campus.
B. The Contentions of the Parties
30
The General Counsel argues that article XI (Layoff and Recall) should not apply to the
Transfer of Work Agreement and therefore there was no basis to determine the affected
employee by shift seniority. He argues that the Transfer of Work Agreement should have instead
been applied by departmental seniority. On that basis, according to the General Counsel,
Hartman should not have been immediately impacted by the transfer of work because second 35
shift employee Etterman would have been affected. Since the steward should not have been
impacted, the application of the superseniority language was beyond the minimum exercise of
such protection allowed by the Board.
The General Counsel contends that even assuming there would have been an impact on 40
the steward, the Respondent Unions “did not rebut the presumption to show that Hartman’s
presence on first shift was necessary to the administration of the collective-bargaining agreement
and the representational interests of the unit employees” because there were three other stewards
who worked first shift, and issues that arose came through the stewards to the Respondent IAM
international representative, who would handle them at the negotiation sessions, and that 45
Hartman could have “continued her limited steward duties with equal measure on second shift.”
(GC Br. at p.17). On that basis, the General Counsel asserts that Respondent MHP and
JD–28–15
16
Respondents NUHW and IAM, by agreeing to apply the superseniority language to the transfer
of fluoroscopy work, discriminated against Kelly in violation of the Act.
The Respondent Unions assert that the parties’ practice in the event of a transfer of work
outside the bargaining unit covered by the Transfer of Work Agreement, was to utilize the layoff 5
provisions of the expired collective-bargaining agreement to identify the employee to be affected
by the transfer. They also contend that if the Respondent Employer and Respondent Unions had
not applied superseniority to exempt Hartman from the transfer of work, Hartman would have
had the choice of either transferring with the work out of the bargaining unit, exercising her
bumping right to displace Etterman on second shift, or being laid off. The Respondent Unions 10
argue that any of these options would have deprived the radiology department their union
steward, and that they had legitimate and substantial representational reasons for providing
Hartman superseniority and keeping her from being transferred out of the unit, moved from the
day shift, or being laid off, and thereby removing her ability to communicate with management
or attend regularly scheduled labor-management meetings. 15
The Respondent Employer, like the Respondent Unions, argues that the layoff language
of the Implemented Terms was correctly used to identify the person who was to be affected by
the transfer of work. In addition, the Respondent Employer argues that the application of the
superseniority provision did not violate the Act because it was purely defensive in nature and 20
was used to enhance the Respondent Unions’ ability to represent its members by assuring that
Hartman kept her position on first shift in her area of representation.
C. Analysis25
Superseniority provisions have been bargained for and obtained by unions in collective-
bargaining agreements to assure continuity of function and maximum use of a union steward’s
skill and expertise in representing the bargaining unit employees. Collective-bargaining
provisions granting superseniority to union officials in matters relating to layoff and recall have 30
been upheld by the Board where the union official’s responsibilities have a direct relationship to
the effective and efficient representation of the bargaining unit employees. Industrial Workers
(AIW) Local 148 (Allen Group Inc.), 236 NLRB 1368, 1370 (1978). However, in Dairylea
Cooperative Inc., 219 NLRB 656 (1975), enfd. sub nom. NLRB v. Teamsters Local 338, 531
F.2d 1162 (2nd Cir. 1976), the Board determined that superseniority provisions, by their nature, 35
inherently tend to discriminate against employees for union-related reasons, and “thereby . . .
restrain and coerce employees with respect to the exercise of their rights protected by Section 7
of the Act.” Id. at 658. As such, a superseniority clause that is not on its face limited to layoff
and recall is presumptively unlawful, and the party that asserts the legality of such a provision
has the burden of demonstrating substantial and legitimate business justification. Id. 40
In Dairylea, the Board held that the lawfulness of such restricted superseniority
provisions is based on the ground that “. . . it furthers the effective administration of bargaining
agreements on the plant level by encouraging the continued presence of the steward on the job.”
Id. at 658. Thereby, it not only serves a legitimate statutory purpose, it also “redounds in its 45
effects to the benefit of all unit employees.” Id. The Board has found the application of
superseniority lawful only as to those employees who are agents of the union who must be on the
JD–28–15
17
job to accomplish duties directly related to contract administration. Gulton Electro-Voice, Inc.,
266 NLRB 406 (1983). While the exercise of superseniority to protect a union steward from
layoff from his or her area of representation has been described as “geographically defensive”
and consistent with the principles of Dairylea, only the minimal exercise of such protection is
permitted. Mechanics Educational Society of America Local 56 (Revere Copper), 287 NLRB 5
935, 936 (1987). Thus, the application of superseniority to provide protection that goes beyond
that which is minimally necessary for the union steward to remain in a job in his or her area of
representation will be found to be an overly broad use of superseniority that is unlawful. Joy
Technologies, Inc., 306 NLRB 1 (1992).
10
While the facts of this case are somewhat complicated, the issue before me is rather
simple--whether the superseniority provision was unlawfully applied to Union Steward Hartman
with regard to the transfer of fluoroscopy work on July 31, 2014, thereby constituting a violation
of Section 8(a)(3) and (1) of the Act by the Respondent Employer, and violations of Section
8(b)(2) and 8(b)(1)(A) of the Act by the Respondent Unions. For the reasons set forth below, I 15
find that the evidence does not establish that the Respondents have violated the Act as alleged.
1. The superseniority provision was lawful on its face.
Although there is no dispute that the superseniority provision in this case is lawful on its 20
face because it is limited to layoff and recall, as mentioned above, the provision also applies to
“Call to Stay Home.” Section 12.7(A) of the Implemented Terms states that “call to stay home”
hours are where the “available work does not warrant they work their scheduled shift.” (Jt. Exh.
1 at tab 1). “Call to stay home” thus describes situations where there is not enough work for all
Techs scheduled and the low senior Tech is “called to stay home.” (See Jt. Exh. 1 at tab 1, sec. 25
12.7(A) of the Implemented Terms).
The record establishes that the “call to stay home” aspect of the superseniority provision
is not at issue in this case, and the General Counsel admits that there is “no dispute that the
superseniority clause in Section 1.3(H) of the Implemented Terms is facially lawful.” (GC Br. at 30
p. 12). I note that article XI of the Implemented Terms defines “layoff” as a “reduction in the
work force or hours of work within a department.” Since “call to stay home” describes situations
where there is not enough work for all employees scheduled, and therefore there is a reduction in
the “hours of work,” I find that “call to stay home” is consistent with the definition of layoff and
that it presents a layoff-type situation. Therefore, I find that the superseniority provision in this 35
case, even with the “call to stay home” language, is limited to layoff and recall. Accordingly, I
agree with the parties that the superseniority provision in this case is lawful on its face.
2. The transfer of the fluoroscopy work was related to, and constituted, a layoff of a
Hackley Tech Unit employee, and therefore it was appropriate to apply the superseniority 40
provision to the transfer of that work.
The record in this case, including the credible testimony of the Respondent Employer’s
witnesses, establishes that the transfer of the fluoroscopy work was, for all practical purposes, a
layoff situation. The transfer of work was consistent with the definition of “layoff” in the 45
Implemented Terms because it resulted in a reduction of the work force and hours of work for
one full-time first shift tech, which in turn resulted in the elimination of that position from the
JD–28–15
18
Hackley Tech Unit. In addition, the Board has held that for the purposes of superseniority
analysis, there is no significant distinction between a transfer and a layoff. Joy Technologies,
supra at 2, fn. 6 (1992) (“The fact that here we are dealing with a transfer rather than a layoff is a
distinction without significance”); See also Auto Workers (Scovill, Inc.), 266 NLRB 952, 953 fn.
9 (1983) (steward superseniority for defensive shift maintenance is like layoff protection and 5
presumptively lawful). Since the Board has found that superseniority provisions granting union
officials protection have been found lawful by the Board when they are in matters “relating to”
layoff and recall,11 it was appropriate to have applied the superseniority provision to the transfer
of fluoroscopy work in this case.
10
3. Respondent MHP’s application of the layoff provision with the Transfer of Work
Agreement and subsequent determination that Kelly would be affected by the transfer of
work was consistent with the status quo or Implemented Terms, and there is insufficient
evidence to establish that such application and determination were discriminatory.
15
The General Counsel does not dispute that the Transfer of Work Agreement is applicable
to the instant case, and the complaint does not allege that Respondent MHP’s interpretation and
application of the Transfer of Work Agreement violated the Act. Nevertheless, the General
Counsel argues that the Transfer of Work Agreement should not have been applied by shift
seniority, but instead should have been applied by straight departmental seniority. In support of 20
this argument, the General Counsel asserts that the Transfer of Work Agreement makes no
mention of using the layoff language of article XI (Layoff and Recall) to identify the person to
be affected by the transfer of work. To the contrary, Respondent MHP argues that the evidence
does not reveal that the Transfer of Work Agreement was discriminatorily applied, and that it
applied the Transfer of Work Agreement as written and consistent with past practice. 25
It is undisputed that the transfer of the fluoroscopy work was going to result in the loss of
work and the elimination of a position. Respondent MHP determined that the work to be
affected would be that of a full-time tech who performed fluoroscopy work on first shift, which
is also not disputed by the parties. The parties also agree that the Transfer of Work Agreement is 30
applicable to the transfer of the fluoroscopy work, but that the Agreement is silent as to how the
person to be affected by that transfer of work is identified. Both Belcourt and Stewart credibly
testified that since the Transfer of Work Agreement was silent with regard to determining which
employee would be affected by the transfer of fluoroscopy work, Respondent MHP applied the
Transfer of Work Agreement in conjunction with the Implemented Terms of the status quo,35
which resulted in the elimination of the lowest senior tech who performed fluoroscopy work on
the first shift. It was determined that the employee who was subject to layoff, would be offered
the opportunity to transfer with the work pursuant to the Transfer of Work Agreement. Belcourt
and Stewart also credibly testified that since a position was being eliminated (and that was
tantamount to a layoff), Respondent MHP and Respondent IAM agreed that superseniority 40
would apply as the status quo to layoffs in general and to the transfer of the fluoroscopy work.
The credible testimony of Belcourt and Stewart also reveals that Respondent MHP’s use
of article 11.1 of the Implemented Terms with the Transfer of Work Agreement was consistent
with the past practice of the parties. They testified that the layoff provision of the collective-45

11 See Industrial Workers (AIW) Local 148 (Allen Group), supra at 1370.
JD–28–15
19
bargaining agreement was used in the past to identify whose job was being eliminated by the
transfer of work so that the employee could be given the opportunity to transfer with or follow
the work. Belcourt and Stewart testified that while it is true that Section 1 of the Transfer of
Work Agreement does not mention layoff or the use of the layoff provision of the contract, it
describes that “the transfer of work results in the elimination of a position,” which is 5
synonymous with a layoff. In addition, reference is made to “layoff” in Sections 2 and 3 of the
Transfer of Work Agreement where it refers to the affected employee’s displacement/bumping
rights “in accordance with the provisions of his/her current collective-bargaining agreement in an
attempt to avoid a layoff.” According to Belcourt, when the Transfer of Work Agreement was
applied in the past, the Respondent Employer and the SEIU used the layoff provision from the 10
“sending campus” where the work was being eliminated to determine whose position was being
eliminated. I find this credible testimony from Belcourt and Stewart was not only unrebutted by
the General Counsel, it is entirely plausible when consideration is given to the fact that the
Transfer of Work Agreement is silent with regard to identifying the persons whose positions are
being eliminated, and the fact that the transfer of work, described in the Transfer of Work 15
Agreement as the “elimination of a position,” is synonymous with and tantamount to a layoff as
defined in the Implemented Terms.
While the General Counsel argues that the Transfer of Work Agreement should not have
been applied by shift seniority, but instead should have been applied by straight departmental 20
seniority, that assertion is not supported by the record and the credible testimony of Respondent
MHP’s witnesses. Under the General Counsel’s argument, Joe Etterman, a second shift full-time
radiology tech should have been the person affected by the transfer of work and had his position
eliminated. However, Section 11.1 provides that layoffs “shall be by shift,” and Stewart testified
that Respondent MHP determined that the impacted employee was determined by shift, a 25
determination not alleged by the General Counsel in the complaint to be unlawful. In addition,
Stewart testified that only first shift work was being transferred, and on that basis, only one
employee who performed fluoroscopy work on the first shift would be impacted. Since Etterman
worked second shift, he could not have been the person whose position was being eliminated by
the transfer of the first shift work. On that basis, I find no merit to the General Counsel’s 30
argument on this issue.
The record reveals that on the first shift, eight full-time techs performed fluoroscopy
work in the Hackley Tech Unit. Hartman was the lowest in seniority and Kelly was the next
lowest in seniority. (RE. Exh. 4). Under the terms of the Transfer of Work Agreement and the 35
applicable layoff provision in the Implemented Terms, the full-time tech with the lowest
seniority on that shift would have their position eliminated and they would be laid off, but they
would first be given an opportunity to transfer with the work to the Mercy campus. Since
Hartman was the lowest in seniority, but also the only union steward from the radiology
department, Respondent MHP, with the agreement of the Respondent Unions, applied the 40
superseniority provision to her, which provides that the union stewards “shall hold top seniority”
for the purpose of layoff (which I find is functionally what the transfer of work constituted).
After Hartman was moved to the top of the seniority list, Kelly was the lowest full-time tech in
seniority on the first shift who performed fluoroscopy work. On that basis, Respondent MHP
determined that Kelly was the employee whose job was going to be eliminated, and she was 45
offered the opportunity to transfer for the work to the Mercy campus, an offer which she
ultimately accepted.
JD–28–15
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Based on the above, the evidence in this case establishes that Respondent MHP’s
application of the article XI layoff provisions of the Implemented Terms in conjunction with the
Transfer of Work Agreement to determine that the lowest senior full-time tech on first shift
would be the one whose position was to be eliminated, was consistent with the status quo and the 5
parties’ past practice. In addition, the application of superseniority protection to Hartman as the
only union steward in that department to shield her from being removed from the shift, thus
causing Kelly to be the person whose position was to be eliminated, was also consistent with the
status quo and past practice. Furthermore, I note that contrary to the General Counsel’s
assertions, the record in this case is devoid of any evidence that Respondent MHP’s application 10
of shift seniority and the layoff language in article XI of the Implemented Terms was
discriminatorily motivated or unlawful.
4. The credible evidence establishes that Respondents had legitimate and justifiable reasons
for applying superseniority to Hartman to allow her to continue to carry out her 15
representational duties as union steward.
As mentioned above, the General Counsel contends that even assuming there would have
been an impact on Hartman as the steward, the Respondents did not show that Hartman’s
presence on first shift was necessary to the administration of the collective-bargaining agreement 20
and the representational interests of the unit employees because: (1) Hartman could have
continued her steward duties on second shift; (2) there were three other stewards who worked
first shift, and (3) issues that arose came through the stewards to the Respondent IAM
international representative who would handle them at the negotiation sessions. For the reasons
set forth below, I find these assertions are not supported by the credible record evidence. 25
The record reveals that if Hartman was not granted superseniority with regard to the
transfer of the fluoroscopy work, as the person lowest in seniority she would have had her
position eliminated and she would have been provided certain options pursuant to the Transfer of
Work Agreement, all of which would have either removed her from the unit or severely affected 30
her ability to perform her representational duties. For example, if she would have exercised the
option of transferring to the Mercy campus with the work, she would have transferred to the
Mercy Tech II unit, which is a completely different bargaining unit represented by a different
labor organization (the SEIU). Under those circumstances, she would have no longer been able
to exercise her duties as a union steward of Respondent IAM and service the representational 35
needs of the Hackley Tech Unit.
If Hartman would have declined the transfer option, she could have exercised the option
of bumping into the Hackley Tech Unit second shift. The General Counsel contends that
Hartman could have then continued her steward duties with equal measure on the second shift. 40
However, that assertion is belied by the credible testimony of the Respondent’s witnesses. Both
Belcourt and Stewart testified without contradiction that the union stewards were very active in
dealing with their respective managers with regard to questions that arose from employees in
their respective departments about terms and conditions of employment. Stewart testified that
the stewards were active in the “mutual interest” meetings held monthly during the first shift 45
where they discussed and resolved matters with management. The stewards were also
participating in monthly negotiation sessions for a successor contract which were also held
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during the first shift. If Hartman was removed from the first shift, it would have restricted her
access to the managers and to the mutual interest meetings and negotiation sessions. In addition,
the record reveals that 80 percent of the bargaining unit worked on the first shift, and most of the
unit employees in Hartman’s department worked on first shift (13 of the 18 radiology techs
worked first shift). Thus, if Hartman bumped into second shift, she would have been assigned to 5
a shift where few bargaining unit members worked, and where few employees in her department
worked. In addition, no management or supervisory personnel would be present to try to resolve
issues that arose, and it would require frequent scheduling adjustments in order to attend
regularly scheduled negotiating and mutual interest meetings which take place at least three
times per month during the day shift. 10
Belcourt’s and Stewart’s credible testimony was corroborated by Heim, one of the
Respondent IAM representatives during the relevant time period, who testified that the union
stewards received complaints and concerns about working conditions from the unit members,
and they met with management to resolve those issues at both negotiation meetings twice a 15
month or in mutual interest meetings once a month. Heim testified that it would have been
difficult for stewards to work other than on the first shift because that was when the managers
were present at the facility. Jazdzyk also corroborated the testimony presented by the
Respondent Employer’s witnesses when he testified that it would have been difficult for the
stewards to represent the needs of the unit members if they did not work the first shift because 20
that was when the managers were available and it would have been difficult to change the
schedules and move other employees to the other shifts in order to have the stewards moved to
the first shift when the meetings with management were taking place. Thus, the credible
evidence establishes that removing Hartman from the first shift would have severely limited her
access to the management officials and access to many of the unit members and their questions 25
and concerns, thereby restricting her ability to exercise her representational duties on behalf of
the Respondent Unions.
Finally, if Hartman declined to exercise either of those two options, she would have been
subject to layoff, thereby removing her from the unit, the workplace, and her representational 30
duties. Thus, contrary to the General Counsel’s assertions, the credible and unrebutted evidence
establishes that Hartman’s presence on first shift was beneficial and necessary to the
administration of the Implemented Terms and the representational interests of the unit
employees.
35
The General Counsel also argues that it was not necessary to protect Hartman from layoff
or from transferring to the Mercy campus because there were three other stewards from other
departments who were on first shift, and those stewards, as Zahdeh and Seeger testified, were
expected to handle complaints and grievances from members outside their departments. While it
may be true that those were the expectations for the stewards, the credible evidence in this case 40
reveals that under the facts that existed at the relevant time period in question, there were
legitimate and substantial reasons that Hartman was needed to deal with the representational
needs of the employees in her particular department.
As mentioned above, it is undisputed that the different departments comprising the 45
Hackley Tech Unit were functionally different in a number of ways, including that they had
different locations in the hospital, they each had their own supervision or managers, and there
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22
were differences in certain working conditions, such as their scheduling. Belcourt testified that
having stewards from each of the major departments was important to ensure that employees had
representation from individuals with expertise in their particular areas of work and understood
the certain nuances that were unique to those areas. According to Belcourt, such knowledge
aided representation and contract administration because it made it easier to understand and 5
resolve issues. Belcourt also testified that the union steward’s knowledge of their departments
was beneficial to resolving issues concerning working conditions because the Implemented
Terms were not consistent on certain topics between the different departments, such as
scheduling and certain working conditions between the surgical techs, radiology techs, and the
vascular techs. Heim also corroborated this testimony when he testified that he believed it was 10
very important, based on the nuances and specialties of each department, that issues be handled
by the steward from that department.
Hartman worked in the radiology department and had knowledge of the nuances and
special features of the radiology department. Based on the credible evidence establishing that 15
there were nuances and specialties to the different departments, and that no collective-bargaining
agreement was in effect and the terms and condition of employment were governed by a status
quo consisting of the Implemented Terms and portions of the expired contract, it was necessary
for Hartman to remain on first shift in her department to service the representational needs of the
employees in that department. In addition, even if other stewards were available to assist the 20
techs in the radiology department, the evidence reveals it was necessary for Hartman to remain
on first shift to provide representation for the unit employees because based on Hartman’s work
schedule, she was the steward most available for the unit employees on first shift.12
The General Counsel also asserts that Hartman’s presence on first shift was not necessary 25
to the representational interests of the unit employees because issues that arose came through the
stewards to the Respondent IAM international representative, who would handle them at the
negotiation sessions. This assertion also lacks support in the record as the credible testimony
from the Respondents’ witnesses demonstrates that the stewards were very active in dealing with
Respondent MHP’s managers in negotiating a contract and in dealing with issues that arose in 30
their respective departments. This credible testimony from the Respondents’ witnesses is not
only uncontradicted, it is plausible when considering the fact that during this time period, there
was increased uncertainty regarding the terms and conditions of employment for the unit
employees. As mentioned above, the Implemented Terms consisted of the Respondent
Employer’s last, best, and final offer and the parties’ tentative agreements, along with portions of 35
the expired SEIU collective-bargaining agreement that were not changed by the last, best, and
final offer and the associated tentative agreements. Under those circumstances, it is plausible
that there would have been some confusion and uncertainty with regard to the terms and
conditions of employment that were in effect. It is also plausible that due to the uncertainty,
there would be increased interaction between the stewards and management, particularly on the 40
day shift when the stewards and managers were present.

12 In this connection, the record reveals that Hartman was the only steward who consistently worked 5
weekdays (Nutt worked 3–5 days depending on the schedule for the weekend; Witteveen worked 3 days
per week; and Seeger worked 2–3 days per week).
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Heim also credibly testified that since he lived a considerable distance away from the
hospital, he indicated at bargaining sessions and mutual interest meetings that stewards were to
participate with management to resolve work issues, and that such issues were in fact handled by
the stewards. In fact, Heim provided specific examples of issues resolved by stewards, including
a vacation issue in the respiratory department and an overtime issue in the radiology department. 5
Heim credibly testified that after the stewards resolved matters, he would follow up with Stewart
to confirm the understanding of the agreements reached by the stewards and managers. Heim
also testified that it was important for the stewards to handle the issues that arose in their own
departments because they had familiarity with those areas and issues. Jazdzyk also credibly
testified that in bargaining sessions and meetings with management, the stewards handled and 10
resolved issues that came up in their own departments, such as a grievance concerning the
posting of job positions for transferred work from the Mercy campus.
Based on the above, I find that the General Counsel’s arguments lack merit,13 and that the
Respondents have presented credible and compelling evidence establishing that Hartman’s 15
presence on first shift was beneficial and necessary to the administration of the Implemented
Terms and the representational interests of the unit employees, and that providing her
superseniority regarding the transfer of fluoroscopy work was the minimal action necessary to
prevent her removal from the first shift through transfer to the Mercy campus, bumping onto
second shift, or being laid off. 20
5. The evidence does not establish that the Respondents violated the Act by granting
superseniority to Union Steward Hartman to shield her from being removed from her
shift or the bargaining unit.
25
Since Hartman’s presence on first shift was directly related to and necessary for her to
effectively perform her representational duties as a union steward, it was appropriate and
permissible under the Act for the Respondent Employer, in agreement with the Respondent
Unions, to provide her superseniority protection and to prevent her removal from the first shift or
her department. Industrial Workers (AIW) Local 148 (Allen Group Inc.), supra at 1370. This 30
determination is supported by Board precedent, as the Board has held in similar cases that
applying superseniority to prevent a shift change where doing so would enhance the labor
organization’s ability to represent the employees, is not unlawful. Auto Workers Local 561

13 In addition, the General Counsel argues that no written grievances were filed during this time period,
thus inferring that the stewards had little, if any, involvement in representational grievance activities.
This assertion is unfounded and lacks merit. The credible evidence shows that the union stewards were
very active in dealing with and attempting to resolve issues regarding the working conditions. The fact
that few, if any, written grievances were filed during this time period does not evince an inability to
resolve workplace issues. In fact, the General Counsel failed to provide any credible evidence that the
lack of filed written grievances was the result of a lack of representational activities by the stewards. To
the contrary, the lack of filed grievances could have been attributed to the fact that the stewards and
Respondent IAM representatives were effective and successful and resolving issues and problems before
they reached the written grievance stage, and it could also be attributed to the fact that the Implemented
Terms under which the parties were operating did not contain a provision for final and binding arbitration
for grievances.
JD–28–15
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(Scovill, Inc.), 266 NLRB 952 (1983); Consolidated Freightways, 302 NLRB 984, 985 (1991);
Goodyear Tire & Rubber Co., 322 NLRB 1007 (1997).
In Auto Workers Local 561 (Scovill, Inc.), 266 NLRB 952 (1983), the Board found the
application of superseniority to provide shift protection for a union steward was lawful where the 5
employees worked on three shifts, and where the shift protection assured “that an official with
steward-like duties for a particular shift [would be] able to remain on that shift.” Id. at 953 fn. 9.
In that case, the Board concluded that “[i]n this regard, the shift protection clause is akin to
layoff protection and the same considerations which lead us to find presumptively lawful steward
superseniority for layoff protection similarly mandate that steward superseniority for defensive 10
shift maintenance be found presumptively lawful.” Id.
In Consolidated Freightways, 302 NLRB 984, 985 (1991), a steward was awarded a
preferential starting time for an 8 a.m. shift in accordance with the parties’ contractual
superseniority provision, when his natural seniority would have required him to relinquish that 15
opportunity in favor of a more senior employee, and he would have to work the 9 a.m. shift
instead. Id. In that case, the Board found the provision and its application lawful since the
steward could better serve the overall unit by working that shift which provided him contact with
a greater number of employees than would the 9 a.m. shift, and it assured the steward greater
accessibility to employees for performance of his duties, which “is clearly intended to, and does, 20
further the effective administration of the parties’ collective-bargaining agreement.” Id. The
Board found the application of superseniority lawful even though the steward could have chosen
to work the 3 a.m. shift where he could have served even more coworkers. Id. The Board
reasoned that “[i]t is sufficient, for Dairylea purposes, that superseniority was used to enhance
the union’s ability to represent employees. The fact that it was not exercised to enhance that 25
ability to the maximum extent possible does not render the exercise unlawful.” Id.
In addition, in Goodyear Tire & Rubber Co., 322 NLRB 1007 (1997), the Board found
the application of superseniority to shield a steward from being bumped from his position was
lawful because the evidence demonstrated that if he were bumped, a great deal of uncertainty 30
would result. Id. at 1008. The Board reasoned that if the steward were bumped from his
position, “continuity of representation for unit employees would be disrupted at a time when the
employees particularly need the expertise of the person they have selected to represent them in
grievances and help them protect their contractual rights.” Id. The Board found that “once
respondents had shown sufficient evidence to justify their application of the superseniority 35
clause, the fact that there might be other approaches is irrelevant,” and “[i]t is sufficient, for
Dairylea purposes, that superseniority was used to enhance the Union’s ability to represent
employees.” Id.
I find that the facts of the instant case are similar to the cases discussed above, and I find 40
the principles set forth in these well established Board cases are applicable to the instant case. In
this case, applying superseniority to Hartman allowed her to remain on the first shift and thereby
serve more bargaining unit employees than if she were bumped to the second shift. The
application of superseniority also ensured that the employees would have some representation
with expertise in the individual areas of the radiology department with its different nuances in45
terms and conditions of employment. In addition, applying superseniority ensured that Hartman
would retain her access to managers and to a majority of members in the unit and in her
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25
department for representational purposes. It also ensured that the radiology department retained
its much needed steward and had “continuity of representation” at a time of some uncertainty
with regard to the status quo, and at a time when employees particularly needed the expertise of
the person selected to represent them. Providing Hartman superseniority ensured that a union
official with steward duties and knowledge of the radiology department remained on her shift,5
and that enhanced her ability to perform her representational duties, and it was clearly beneficial
and necessary to Respondent IAM’s ability to represent the employees.
The well established case law discussed above thus supports finding that the granting of
superseniority to Hartman was defensive in nature and constituted the minimum exercise of 10
protection that was necessary to keep the union steward in her representational area and on her
shift. As discussed above, the credible evidence demonstrates that if the superseniority
protection was not provided to Hartman, she would have either transferred out of the bargaining
unit with her work, bumped into the second shift where she would not have been able to
effectively represent the unit employees in her department, or been laid off. Thus, the record 15
establishes that the Respondents’ use of the superseniority provision was defensive and the
minimal extent necessary to allow Hartman to perform her representational duties for
Respondent IAM.
Based on the above, I find that Respondent MHP’s application of the superseniority 20
provision to Hartman, with the approval of Respondents NUHW and IAM, to prevent her from
having her position eliminated and having to either transfer out of the bargaining unit, bump to a
different shift, or be laid off, served the legitimate statutory purpose of furthering the effective
administration of the Implemented Terms and enhanced Respondent IAM’s ability to represent
the unit employees, and that such actions did not violate the Act. See Dairylea Cooperative, 25
supra at 658; Joy Technologies, supra at 2; Consolidated Freightways, supra at 985; Good Year,
supra at 1008. Thus, I find that Respondent MHP has not violated Section 8(a)(3) and (1) of the
Act, and Respondents NUHW and IAM have not violated Section 8(b)(2) and 8(b)(1)(A) of the
Act as alleged. Accordingly, I will dismiss the second consolidated complaint in its entirety.
30
CONCLUSIONS OF LAW
1. Respondent Mercy Health Partners (MHP) is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act. 35
2. Respondent National Union of Healthcare Workers (NUHW) and the Respondent District
Lodge 60, International Association of Machinists and Aerospace Workers (IAM), AFL–CIO,
are labor organizations within the meaning of Section 2(5) of the Act.
40
3. Respondent MHP has not violated Section 8(a)(3) and (1) of the Act as alleged in the
second consolidated complaint.
4. Respondent NUHW and Respondent IAM have not violated Section 8(b)(2) and
8(b)(1)(A) of the Act as alleged in the second consolidated complaint.45
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26
On these findings of fact and conclusions of law, and on the entire record, I issue the
following recommended:14
ORDER5
The second consolidated complaint is dismissed in its entirety.
10
Dated, Washington, D.C. May 8, 2015.
__________________________15
Thomas M. Randazzo
Administrative Law Judge
20

14 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be deemed waived for all purposes.