Prime Healthcare Services-Garden Grove, LLC d/b/a Garden Grove & Hospital & Medical Center

National Labor Relations Board - Board Decisions

Aug 26, 2011

357 N.L.R.B. 653 (N.L.R.B. 2011)

GARDEN GROVE HOSPITAL & MEDICAL CENTER
357 NLRB No. 63
653
Healthcare Services-Garden Grove, LLC d/b/a Gar-
den Grove Hospital & Medical Center and Ser-
vice Employees International Union, United
Healthcare Workers-West. Case 21–CA–039031
August 26, 2011
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS PEARCE
AND HAYES
On August 4, 2010, Administrative Law Judge Jay R.
Pollack issued the attached decision. The Respondent
filed exceptions, a supporting brief, and a reply brief.
The Acting General Counsel filed limited cross-
exceptions with a supporting brief and an answering
brief. The Charging Party filed an answering brief to the
Respondent’s exceptions.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.1
The Board has considered the decision and the record
in light of the exceptions and briefs2 and has decided to
affirm the judge’s rulings, findings,3 and conclusions, to
amend the recommended remedy,4 and to adopt the rec-

1 Member Becker is recused and did not participate in the considera-
tion of this case.
2 We deny the Respondent’s request for oral argument, as the record,
exceptions, and briefs adequately present the issues and the positions of
the parties.
3 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance 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.
4 We modify the judge’s remedy to provide that the Respondent
must not only restore unit employees’ accrued sick leave benefit time
that it rescinded on April 17, 2009, but must also credit unit employees
with such additional time as they should accrue until the Respondent
complies with our order to restore the reserve sick leave benefit itself.
Extending the remedy in this fashion is fully consistent with the nature
of the violation we have found. Once the Respondent exercised its
right to set initial terms and conditions of employment—of which the
reserve sick leave benefit had reasonably become a part (properly
viewed from the employees’ perspective)—the Respondent was not
free to alter those terms and conditions without first providing the Un-
ion notice and an opportunity to bargain. See, e.g., Ridgewell’s, Inc.,
334 NLRB 37, 38 (2001), enfd. mem. 38 Fed. Appx. 29 (D.C. Cir.
2002). Thus, the violation continues until the Respondent rescinds its
unilateral action, and the reimbursement remedy applies until that oc-
curs. Cf. Mimbres Memorial Hospital & Nursing Home, 356 NLRB
744, 751 (2011).
Member Hayes notes that the Respondent was entitled to set initial
terms and conditions of employment under NLRB v. Burns Security
Services, 406 U.S. 272 (1972), and did not intend to continue the pre-
decessor employer’s reserve sick leave benefit plan, but mistakenly did
so for 9 months. In these circumstances, Member Hayes would find
that the appropriate remedy to restore the status quo ante should be
limited to reinstating the reserve sick leave benefits that accrued up to
ommended Order as modified and set forth in full be-
low.5
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Prime Healthcare Services-Garden Grove,
LLC d/b/a Garden Grove Hospital & Medical Center,
Garden Grove, California, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Unilaterally discontinuing the reserve sick leave
benefit and rescinding the reserve sick leave benefit time
which employees accrued from July 1, 2008, to April 17,
2009, without first notifying the Union notice and giving
it an opportunity to bargain.
(b) In any like or related manner interfering with, re-
straining or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative actions necessary to
effectuate the policies of the Act.
(a) Before implementing any changes in wages, hours,
or other terms and conditions of employment of unit em-
ployees, notify and, on request, bargain with the Union
as the exclusive collective-bargaining representative of
employees in the following bargaining units:

Combined Service, Maintenance, Technical,
Skilled Maintenance and Business Office Clerical
Unit:

Included: All full-time, regular part-time, and per diem
Service, Maintenance, Technical, Skilled Maintenance,
and Business Office employees.

Excluded: All other employees, managers, supervisors,
confidential employees, guards, physicians, residents,
central business office employees (whether Facility
based or not) who are solely engaged in qualifying or
collection activities or are employed by another Tenet

the April 17, 2009, date of the Respondent’s discovery of its mistake.
The Respondent should not be required to reinstate and continue a plan
that was not part of its intended initial terms and conditions of em-
ployment.
We also modify the judge’s remedy to provide that backpay shall be
computed in the manner set forth in Ogle Protection Service, 183
NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest as
prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987),
compounded daily as prescribed in Kentucky River Medical Center, 356
NLRB 6, (2010).
5 We shall modify the judge’s recommended Order to provide for the
posting of the notice in accord with J. Picini Flooring, 356 NLRB 11
(2010). For the reasons stated in his dissenting opinion in J. Picini
Flooring, Member Hayes would not require electronic distribution of
the notice.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 654
entity, such as Syndicated Office Systems or Patient
Financial Services, employees of outside registries and
other agencies supplying labor to the Respondent and
already represented employees.
Professional Unit

Included: All full-time, regular part-time, and per diem
Professional employees.

Excluded: All other employees, managers, supervisors,
confidential employees, guards, physicians, residents,
central business office employees (whether Facility
based or not) who are solely engaged in qualifying or
collection activities or are employed by another Tenet
entity, such as Syndicated Office Systems or Patient
Financial Services, employees of outside registries and
other agencies supplying labor to the Respondent and
already represented employees.

(b) Reinstate the established past practice of conferring
a reserve sick leave benefit on bargaining unit employ-
ees, and maintain this benefit until such time as good
faith bargaining with the Union about changes results in
agreement or bona fide impasse.
(c) Restore both the rescinded reserve sick leave bene-
fit time that unit employees accrued from July 1, 2008, to
April 17, 2009, and such further time as they should have
accrued prior to the restoration of this benefit.
(d) Make whole unit employees for any loss of earn-
ings and other benefits they may have suffered as a result
of the Respondent’s unlawful conduct in discontinuing
the reserve sick leave benefit and rescinding accrued
reserve sick leave benefit time.
(e) Preserve, and within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents all payroll records, social
security payment records, timecards, personnel records
and reports, and all other records, including electronic
copy of such records if stored in electronic form, neces-
sary to analyze the amount of compensation due under
the terms of this Order.
(f) Within 14 days after service by the Region, post at
its Garden Grove, California facility copies of the at-
tached notice marked “Appendix.”6 Copies of the notice,
on forms provided by the Regional Director for Region
21, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and

6 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
maintained for 60 consecutive days in conspicuous plac-
es including all places where notices to employees are
customarily posted. In addition to physical posting of
paper notices, notices shall be distributed electronically,
such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent
customarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material. If the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since April 17, 2009.
(g) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that 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 Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT change your terms and conditions of
employment without first notifying the Union and giving
it an opportunity to bargain.
WE WILL NOT in any like or related manner interfere
with, restrain or coerce you in the exercise of the rights
listed above.
WE WILL, before implementing any changes in wages,
hours, or other terms and conditions of employment of
unit employees, notify and, on request, bargain with the
Union as the exclusive collective-bargaining representa-
tive of our employees in the following bargaining units:

GARDEN GROVE HOSPITAL & MEDICAL CENTER 655
Combined Service, Maintenance, Technical,
Skilled Maintenance and Business Office Clerical
Unit:

Included: All full-time, regular part-time, and per diem
Service, Maintenance, Technical, Skilled Maintenance,
and Business Office employees.

Excluded: All other employees, managers, supervisors,
confidential employees, guards, physicians, residents,
central business office employees (whether Facility
based or not) who are solely engaged in qualifying or
collection activities or are employed by another Tenet
entity, such as Syndicated Office Systems or Patient
Financial Services, employees of outside registries and
other agencies supplying labor to the Respondent and
already represented employees.
Professional Unit
Included: All full-time, regular part-time, and per diem
Professional employees.

Excluded: All other employees, managers, supervisors,
confidential employees, guards, physicians, residents,
central business office employees (whether Facili-
tybased or not) who are solely engaged in qualifying or
collection activities or are employed by another Tenet
entity, such as Syndicated Office Systems or Patient
Financial Services, employees of outside registries and
other agencies supplying labor to the Respondent and
already represented employees.

WE WILL reinstate the established past practice of con-
ferring a reserve sick leave benefit on bargaining unit
employees, and maintain this benefit until such time as
good faith bargaining with the Union about changes re-
sults in agreement or bona fide impasse.
WE WILL restore both the rescinded reserve sick leave
benefit time that unit employees accrued from July 1,
2008, to April 17, 2009, and such further time as they
should have accrued prior to the restoration of this bene-
fit.
WE WILL make whole unit employees for any loss of
earnings and other benefits they may have suffered as a
result of the Respondent’s unlawful conduct in discon-
tinuing the reserve sick leave benefit and rescinding ac-
crued reserve sick leave benefit time.
PRIME HEALTHCARE SERVICES-GARDEN
GROVE, LLC D/B/A GARDEN GROVE HOSPITAL
& MEDICAL CENTER
Daniel A. Adlong, Esq., for the General Counsel.
Jonathan A. Siegel, Esq. (Jackson Lewis LLP), of Newport
Beach, California, for the Respondent.
Bruce A. Harland, Esq. and Jacob J. White, Esq., of Alameda,
California, for the Union.
DECISION
STATEMENT OF THE CASE
JAY R. POLLACK, Administrative Law Judge. This case was
tried in Los Angeles, California, on May 24 and 25, 2010. On
September 28, 2009, Service Employees International Union,
United Healthcare Workers-West (the Union) filed the original
charge in this case against Prime Healthcare Services-Garden
Grove, LLC d/b/a Garden Grove Hospital & Medical Center
(Respondent or the Employer). The Union filed the first
amended charge on November 2, 2009. On February 24, 2010,
the Regional Director for Region 21 of the National Labor Re-
lations Board (the Board) issued a complaint against Respond-
ent. The complaint alleges that Respondent violated Section
8(a)(5) and (1) of the National Labor Relations Act (the Act) by
eliminating the reserve sick leave benefit of bargaining unit
employees without prior notice and bargaining with the Union.
The Respondent filed a timely answer in which it denied that it
had violated the Act.
The parties have been afforded full opportunity to appear, to
introduce relevant evidence, to examine and cross-examine
witnesses, and to file briefs. Upon the entire record, from my
observation of the demeanor of the witnesses,1 and having
considered the briefs submitted by the parties, I make the
following
FINDINGS OF FACT
I. JURISDICTION
At all times material, Respondent has been a California cor-
poration, engaged in the operation of a hospital in Garden
Grove, California. Respondent, in conducting its business op-
erations described above, during the 12-month period ending
September 30, 2009, derived gross revenues in excess of
$250,000 and purchased and received goods valued in excess of
$50,000 directly from points outside the State of California.
Accordingly, Respondent admits and I find, Respondent is an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
The parties stipulated that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. FACTS
Since at least January 1, 2007, the Union had a collective-
bargaining agreement with Tenet Healthcare Corporation cov-

1 The credibility resolutions have been derived from a review of the
entire testimonial record and exhibits, with due regard for the logic of
probability, the demeanor of the witnesses, and the teachings of NLRB
v. Walton Mfg. Co., 369 U.S. 404, 408 (1962). As to those witnesses
testifying in contradiction to the findings herein, their testimony has
been discredited, either as having been in conflict with credited docu-
mentary or testimonial evidence, or because it was in and of itself in-
credible and unworthy of belief.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 656
ering two appropriate units of hospital employees at the Garden
Grove Hospital. During the term of the 2007–2011 collective-
bargaining agreement, Tenet Healthcare sold the Garden Grove
Hospital to Respondent effective July 1, 2008. Respondent
agreed to recognize the Union and to honor significant portions
of Tenet’s bargaining agreement with the Union. However,
before the transfer of ownership from Tenet to Respondent,
Respondent set the initial terms and conditions of employment
under which it would hire Tenet’s employees. These terms
included a different health plan, 401(k) plan, long-term and
short-term disability and life insurance plans, paid time off
plan, and sick leave plan.
Tenet Healthcare provided employees with a reserve sick
leave benefit. This reserve sick leave benefit provided that full-
time employees accrued 1.85 hours of reserve sick pay every
pay period and part-time employees accrued .92 hours of re-
serve sick leave per pay period. When Respondent took over
the hospital it set initial terms of employment. It negotiated
with the Union over changes to the health insurance plan and
401(k) plan. There was no mention of the reserve sick leave
plan.
While Respondent informed the unit employees, in June
2008, of its intentions through “Employee Forums,” Respond-
ent did not formally notify the Union of this change.2 Howev-
er, due to clerical errors, from July 1, 2008, to April 17, 2009,
the employees continued to accrue the reserve sick leave bene-
fits for every pay period during this time. On April 17, 2009,
Respondent notified employees of the mistake in a memo. In
the memo, Respondent informed the employees that the reserve
sick leave benefit would no longer accrue and that the benefit
which had accrued since July 2008 would be rescinded.3 Re-
spondent, however, did not inform the Union of this change
either before or after the memo was sent. Instead, the unit em-
ployees informed the Union of this change.
A successor employer is not bound to honor the substantive
terms of the collective-bargaining agreement the union negoti-
ated with a predecessor employer. NLRB v. Burns Security

2 Employee forums were meetings where Prime told employees
about its intended changes in various benefit plans, and informed em-
ployees of new equipment, software, and other systems which would be
implemented after July 1, 2008. Prime alleges that there were at least
ten of these forums. Prime contends that Union representatives attended
these Employee forums and heard about Prime’s intended changes
during these meetings.
3 The memo read in pertinent part:
A mistake was made while setting up the employees of Gar-
den Grove Hospital following the sale of the hospital to Prime
Healthcare Services. The error was allowing the reserve sick ac-
crual to continue after July 1, 2008.
Garden Grove Hospital will honor the reserve policy with re-
spect to any accrued balance as of June 30, 2008. However, after
July 1, 2008 the accrual of 1.85 hours per pay period for full-time
employees and .92 hours for part-time employees was supposed
to end. The payroll department has corrected this error for all
Garden Grove employees.
As a result, you may see a change in the Reserve Sick balance
on your paystubs. The balance will reflect any accrued sick as of
June 30, 2008 less hours taken since July 1, 2008 only. Any
hours accrued since July 1 has been removed.
Services, 406 U.S. 272, 282 (1971). Moreover, a successor
employer has a right to set the initial terms and conditions of
employment under which it will hire the employees of a prede-
cessor without first bargaining with the employees’ bargaining
representative. Id. at 294–295. One exception to this right is
when it is perfectly clear that the successor employer will retain
the predecessor’s employees under their prior working condi-
tions. Id. at 294. The exception only applies, however, when
the successor employer “has either actively or by tacit inference
misled employees into believing they would be obtained with-
out change in their wages, hours or conditions of employment”
or when the successor employer failed to clearly announce its
plan to establish new terms and conditions prior to inviting the
predecessor’s employees to accept employment. Spruce Up
Corp., 209 NLRB 194, 195 (1974).
In this case, neither party disputes that Respondent pur-
chased and then assumed operation and control of the Hospital
on July 1, 2008, from Tenet. Respondent also recognized the
Union as the collective-bargaining representative of unit em-
ployees. Respondent alleges that between May 13, 2008, and
July 1, 2008, it set the initial terms and conditions of employ-
ment before it assumed operation of the Hospital as the Re-
spondent had a right to under Burns4 and that it held employee
forums during which Respondent alleges it conveyed Respond-
ent’s intended changes. It appears that Respondent made it
clear to the employees that it would not hire them under the
same terms and conditions of employment utilized by Tenet.
Therefore, as Respondent did not mislead these employees
regarding its intent to change employment terms and condi-
tions, Respondent had the right to set the initial terms and con-
ditions of employment under which it would hire Tenet’s em-
ployees.
III. CONCLUSIONS
A. Respondent’s Duty to Bargain with Incumbent Union
Where the bargaining unit remains unchanged and the suc-
cessor employer hires a majority of the predecessor’s employ-
ees which are represented by a certain bargaining agent, the
new employer has a duty to bargain with the incumbent union.
Burns Sec. Serv., 406 U.S. at 281. When the “substantial and
representative complement” rule is satisfied, the bargaining
obligation attaches and the successor employer must bargain
with the union that represents those employees. Fall River
Dyeing Corp. v. NLRB, 482 U.S. 27, 47 (1987).5
Here, Respondent continued to employ the employees of
Tenet without a break in service. Therefore, while the Re-
spondent had the right to set the initial terms and conditions of
employment, once it retained a majority of Tenet’s unit em-
ployees Respondent had a duty to bargain with the Union.

4 Burns Security Services, supra.
5 The Board’s “substantial and representative complement” rule de-
termines the date when a successor’s obligation to bargain with the
predecessor’s employees’ union arises. Fall River Dyeing Corp. v.
NLRB, 482 U.S. at 28. The obligation is fixed when the successor em-
ployer hires a majority of predecessor’s unit employees. Id.
GARDEN GROVE HOSPITAL & MEDICAL CENTER 657
B. The Nature of the Reserve Sick Leave Benefit
as a Subject of Bargaining
Section 8(a)(5) and (3) of the Act compel collective bargain-
ing for mandatory subjects of bargaining. 29 U.S.C. § 158.
Mandatory subjects of bargaining concerning “rates of pay,
wages, hours of employment, or other conditions of employ-
ment.” NLRB v. Borg-Warner Corp., 356 U.S. 342 (1958). An
employer is barred from taking unilateral action in regard to
mandatory subjects of bargaining.6 NLRB v. Katz, 369 U.S.
736. An employer that unilaterally changes a condition classi-
fied as a mandatory subject of bargaining, altered without nego-
tiation and accomplished by evading the union, may support an
inference of a lack of good faith. Id. Moreover, the duty to
bargain does not extinguish when a collective-bargaining
agreement is in effect. See Conley v. Gibson, 355 U.S. 41, 46
(1957). The U.S. Supreme Court has held that the “[c]ollective
bargaining is a continuing process. Among other things, it
involves day to day adjustments in the contract and other work-
ing rules, resolution of new problems not covered by existing
agreements, and the protection of employee rights.”
1. Sick leave as a mandatory subject of bargaining
The U.S. Supreme Court has recognized sick leave to be a
term and condition of employment and, therefore, a mandatory
subject of bargaining. NLRB v. Katz, 369 U.S. at 744. In Katz,
the sick leave plan at issue consisted of employees having a
certain number of paid sick leave days annually plus the accu-
mulation of unused sick days which could be carried over into
the next year. Id. The employer in Katz reduced the number of
paid annual sick days from 10 days to 5 days, but doubled the
amount of accumulated sick leave days that could be carried
over from 5 days to 10 days. Id. The Court found that the en-
tire sick leave plan was a mandatory subject of bargaining and
that the employer made a unilateral change violating Section
8(a)(5) when it failed to bargain over this change. Id.
In this case, the employees’ sick leave benefit, which includ-
ed a reserved sick leave benefit, is similar to the sick leave plan
in Katz. Id. Respondent’s present employees who were em-
ployees under Tenet were given a certain amount of sick leave
days plus the reserve sick leave benefit which allowed full time
employees to accrue a certain amount of reserve sick leave
hours per pay period. If Respondent’s reserve sick leave bene-
fit can be classified as not being a separate or an extra benefit,
but as a part of a sick leave plan like the one in Katz, then the
reserve sick leave benefit in this case is a mandatory subject of
bargaining. Therefore, Respondent’s change of the reserve sick
leave benefit without bargaining with the Union is a unilateral
change and a violation of Section 8(a)(5).
2. Past practices create mandatory subject of bargaining
The Board has also defined other miscellaneous employee
benefits as wages and, therefore, mandatory subjects of bar-
gaining. See, e.g., Seafarers Local 777 (Yellow Cab Co.) v.
NLRB, 603 F.2d 862, enfg. in part 229 NLRB 1329 (1977)

6 Unilateral changes made by an employer to mandatory subjects of
bargaining are considered per se refusals to bargain. NLRB v. Katz, 369
U.S. 736 (1962).
(drivers being allowed to take their taxi cabs home at night);
AT&T Corp., 325 NLRB 150 (1997) (paycheck-cashing ser-
vices); Florida Steel Corp., 230 NLRB 1054 (1977) (reim-
bursement rates for lodging and meal expenses and use of cred-
it cards by employees); Master Slack Corp., 230 NLRB 1054
(1977), enfd. 618 F.2d 6 (6th Cir. 1980) (allowing employees to
purchase goods on layaway); Gratiot Community Hospital, 312
NLRB 1075 (1993), enfd. in relevant part 51 F.3d 1255 (6th
Cir. 1995) (longstanding practice of employer issuing and laun-
dering uniforms). Whether these miscellaneous benefits be-
come mandatory subjects of bargaining is impacted by the du-
ration of the past practice of providing the benefit. Gratiot
Community Hospital, supra.
An employer’s regular and longstanding practices that are
neither random nor intermittent become terms and conditions of
employment even if these practices are not required by a collec-
tive-bargaining agreement. Sunoco, Inc., 349 NLRB 240, 244
(2007). As such, these past practices cannot be changed with-
out offering the unit employees’ collective-bargaining repre-
sentative notice and an opportunity to bargain. Id. See also
Granite City Steele Co., 167 NLRB 310, 315 (1967); Queen
Mary Restaurant Corp. v. NLRB, 560 F.2d 403, 408 (9th Cir.
1977); Exxon Shipping Co., 291 NLRB 489, 493 (1988); B & D
Plastics, 302 NLRB 245 fn. 2 (1991); DMI Distribution of
Delaware, 334 NLRB 409, 411 (2001).
The Board has generally held that employer practices which
occur over a long period of time supply the longevity needed to
establish a past practice. In Granite City Steel Co., 167 NLRB
at 315, the Board found a past practice when the employer al-
lowed six succeeding union business representatives access to
the blast furnace plant for 15 years for the purpose of resolving
grievances. In Sunoco, Inc., the Board found a past practice
when for 3 years the employer offered unit employees at certain
facilities the chance to deliver jet fuel. Sunoco, Inc., 349 NLRB
at 244.
Moreover, a past practice must occur regularly and with such
frequency that employees could reasonably expect the “practice
to continue or reoccur on a regular and consistent basis.” Id.
The Board in DMI Distribution of Delaware, 334 NLRB at
411, did not find a past practice when the policy of the employ-
er giving bonuses was in effect for 11 years, but bonuses were
only actually given to employees “a couple of times.” See B &
D Plastics, Inc., supra (Board found it a random event rather
than a past practice when, only three times in the past 5 years,
an employer held cookouts for employees and gave the em-
ployees paid time off to attend these cookouts.) See also Exxon
Shipping Co., supra (Board found that when the union partici-
pated twice in government investigations regarding the possible
death of one of its members, 3 years apart, too remote in time
and too intermittent in their occurrence to be a past practice
especially when there was no union participation in three simi-
lar investigations).
The General Counsel relies on JPH Management, Inc., 337
NLRB 72 (2001), to assert that the 9 months of mistaken accru-
al of the reserve sick benefit in this case is long enough to es-
tablish a past practice and therefore a term and condition of
employment which Respondent needed to bargain over in order
to change or rescind. In JPH Management, Inc., the employer
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 658
mistakenly gave its employees a wage increase for 5 weeks and
subsequently rescinded the increase after discussing the mistake
with the union. The General Counsel argues that the Board in
JPH Management, Inc. found that a term and condition of em-
ployment was established by this 5 week mistake because the
Board classified it as past practice. General Counsel’s reliance
on JPH Management, Inc., however, is misguided. While both
this case and JPH Management, Inc. are similar as both involve
a mistake an employer made which resulted in employee gain,
the Board in JPH Management,, Inc. did not find that this wage
increase established a term and condition of employment be-
cause it was a past practice, but rather because wages are al-
ways considered mandatory subjects of bargaining. JPH Man-
agement,, Inc., 337 NLRB at 73. Neither the term “past prac-
tice” nor the conclusion that 5 weeks was a long enough time to
establish a past practice were a part of the Board’s or the ALJ’s
analysis in JPH Management,, Inc. Id. Therefore, the General
Counsel’s reliance on JPH Management,, Inc.’s 5-week mis-
take to establish that Respondent’s 9-month sick leave accrual
error was enough time to establish a past practice is erroneous.
Regardless of the distinguishability of JPH Management,,
Inc., the mistaken accrual of the reserve sick leave benefit hap-
pened with such regularly and frequency that Respondent’s
employees could have reasonably expected the “practice to
continue or reoccur on a regular and consistent basis” as Re-
spondent mistakenly allowed this reserve sick leave benefit to
continue accruing every pay period for 9 months. Sunoco, 349
NLRB at 244. However, as the above cited cases show, the
Board has found a past practice when the practice has been in
place and repeatedly used for a period of years. Prime’s mis-
taken practice occurred for only 9 months. On the other hand,
the Board has never specifically stated that to find past practice
it is required to have been affect for a number of years. There-
fore, while the accrual in this case only continued for 9 months,
based on the regular and consistent accrual of this benefit,
without interruption, this benefit could reasonably be classified
as a past practice.
C. Conclusion
While Respondent was free to set the initial terms and condi-
tions of employment under which to hire Tenet’s former em-
ployees, when Respondent retained a majority of the Tenet
employees which were represented by the Union, the duty to
bargain with the Union attached. This duty does not expire even
during the term of Respondent’s existing collective-bargaining
agreement with the Union. The reserve sick leave benefit in
this case could reasonably be classified as a mandatory subject
of bargaining as either sick leave or a past practice. Thus,
Prime had the duty to bargain with the Union when it rescinded
the mistakenly accrued sick leave benefit from the employees.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce and in a
business affecting commerce within the meaning of Section
2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent violated Section 8(a)(5) and (1) of the Act
when it rescinded the reserve sick leave benefit in April 2009
REMEDY
Having found that the Respondent has engaged in unfair la-
bor practices in violation of 8(a)(1) and (5), 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.
[Recommended Order omitted from publication.]