YHA, Inc.

National Labor Relations Board - Board Decisions

May 29, 1992

307 N.L.R.B. 782 (N.L.R.B. 1992)

782
307 NLRB No. 123
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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.
YHA, Inc. and Service Employees International
Union Local 627, AFL–CIO, CLC. Case 8–CA–
22754
May 29, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On September 11, 1991, Administrative Law Judge
Irwin H. Socoloff issued the attached decision. The
Respondent filed exceptions and a brief in support, and
the Charging Party filed a brief in opposition to the
Respondent’s exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
The judge concluded that the Respondent violated
Section 8(a)(5) of the Act by refusing to bargain with
the Union prior to its intended implementation of its
new no-smoking policy. The Respondent excepts con-
tending, inter alia, that the judge erred in finding that
it ‘‘did not formally and fully apprise the Union of its
intent completely to eliminate employee smoking in its
facilities until March 23, 1990.’’ The Respondent as-
serts that the Union learned well before that date of the
Respondent’s intent to implement the no-smoking pol-
icy on April 1, 1990. In support of this contention, the
Respondent refers to the smoking task force meeting
agendas and attached no-smoking policy drafts that
were mailed before each task force meeting to task
force members, including Union Steward Flannery,
whom Union President Lewis appointed to attend the
meetings. The Respondent contends that the no-smok-
ing policy draft attached to the February 8 agenda
made clear the Respondent’s intention to implement a
total smoking ban and that the draft attached to the
March 7 agenda clearly establishes that the effective
date for the policy was April 1, 1990. The Respondent
also asserts that the Union should have known that
April 1 was the implementation date because the at-
tached agenda referred to the March 7 draft as final.
We disagree.
Initially, we note that when Mullen, the Respond-
ent’s assistant administrator, notified Lewis in January
1990 that a smoking task force would be formed, he
did not tell Lewis specifically what the purpose of the
task force was or that his mandate, in fact, was to im-
plement a smoke free policy by April 1, 1990. Thus,
the Respondent led the Union to believe that the pur-
pose of the task force was a general discussion of the
smoking policy. Contrary to the Respondent, we do
not find that the documents referred to above were suf-
ficient to dispel that belief. As to the February 8 no-
smoking policy draft, there is nothing in it to indicate
that its purpose was other than to promote general dis-
cussion of the smoking policy, which Lewis, in fact,
was led to believe was the purpose of the task force.
As to the March 7 no-smoking policy draft, we agree
with the Respondent that it clearly gives the effective
date as April 1, 1990, and that the attached agenda re-
fers to it as the final draft. We do not agree, however,
that these factors require a finding that the March 7
draft put the Union on notice that the no-smoking pol-
icy would be implemented on April 1. Not only is the
‘‘Date Effective’’ of the draft given as ‘‘4/1/90,’’ but
the same date is given as the ‘‘Date Revised’’ and the
‘‘Date Reviewed.’’ Consequently, it is difficult to de-
termine from the face of the draft what significance,
if any, to assign the ‘‘4/1/90’’ date. Further, as to the
designation of this draft as the final one, we note that
the word final on the March 7 agenda is surrounded
by quotation marks, suggesting that it was ‘‘final’’ in
name only and was subject to further general discus-
sion by the task force. In these circumstances, for the
other reasons stated by him, we agree with the judge
that the Respondent did not ‘‘formally and fully ap-
prise’’ the Union of its intentions until March 23,
1990, when the Respondent’s medical director in-
formed the union presidents that the Respondent ‘‘had
adopted’’ a smoke-free policy and intended to imple-
ment it on April 1. Accordingly, and in view of the
judge’s further findings, with which we agree, that the
Union on and after March 23 repeatedly demanded ne-
gotiations over the policy and that the Respondent then
refused to bargain over the matter, we adopt the
judge’s conclusion that the Respondent violated the
Act.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, YHA, Inc., Youngstown,
Ohio, its officers, agents, successors, and assigns, shall
take the action set forth in the Order.
Rufus L. Warr, Esq., for the General Counsel.
Jon R. Steen, Esq., of Youngstown, Ohio, for the Respond-
ent.
Anthony P. Sgambati, Esq., of Youngstown, Ohio, for the
Charging Party.
783YHA, INC.
1 The factfindings contained herein are based on a composite of
the documentary and testimonial evidence introduced at trial. To the
extent that there are conflicts between the testimonial accounts of
events of Kenneth Lewis, the Union’s president and business rep-
resentative, and Jack Mullen, Respondent’s assistant administrator
for medical affairs, I have credited the testimony of Lewis. Lewis
impressed me as an honest and forthright witness while Mullen,
whose testimony was, at times, evasive concerning critical matters,
appeared to me to be engaged in a decided effort to present events
in a light most favorable to Respondent’s interests.
2 For the reasons stated at fn. 1, I credit Lewis’ testimony rather
than Mullen’s, and find that the conversation occurred substantially
Continued
DECISION
STATEMENT OF THE CASE
IRWIN H. SOCOLOFF, Administrative Law Judge. On a
charge filed June 4, 1990, by Service Employees Inter-
national Union Local 627, AFL–CIO, CLC (the Union)
against YHA, Inc. (the Respondent), the General Counsel of
the National Labor Relations Board, the Regional Director
for Region 8, issued a complaint dated October 31, 1990, al-
leging violations by Respondent of Section 8(a)(5) and (1)
and Section 2(6) and (7) of the National Labor Relations Act
(the Act). Respondent, by its answer, denied the commission
of any unfair labor practices.
Pursuant to notice, trial was held before me in Youngs-
town, Ohio, on February 21, 1991, at which all parties were
represented by counsel and were afforded full opportunity to
be heard, to examine and cross-examine witnesses, and to in-
troduce evidence. Thereafter, the parties filed briefs which
have been duly considered.
On the entire record in this case, and from my observa-
tions of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, an Ohio corporation, maintains facilities
in Youngstown, Ohio, where it is engaged as a nonprofit
health care provider. Annually, Respondent, in the course
and conduct of its business operations, derives gross reve-
nues in excess of $250,000. It purchases and receives at its
Ohio facilities goods and materials valued in excess of
$10,000, which are sent directly from points located outside
the State of Ohio. I find that Respondent is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act, and a health care institution within the
meaning of Section 2(14) of the Act.
II. LABOR ORGANIZATION
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
Respondent operates hospitals and medical facilities in the
Youngstown, Ohio area, including North Side and South
Side Medical Centers, and Beeghly Medical Park. The ma-
jority of its employees are represented in multifacility bar-
gaining units, including the 1200 to 1300 nonprofessional
service and maintenance employees represented by the
Union, Local 627, since 1966.
Prior to April 1, 1990, smoking was permitted in des-
ignated areas of the YHA facilities. On that date, however,
Respondent instituted a new rule prohibiting smoking by em-
ployees and others anywhere inside its facilities. It did not
engage in collective bargaining with the Union about the
matter.
In the instant case, the General Counsel contends that, by
making unilateral changes in the terms and conditions of em-
ployment of the bargaining unit employees, Respondent vio-
lated Section 8(a)(5) of the Act. Respondent asserts that it
acted lawfully as, in its view, the Union waived its right to
bargain about the changes in the smoking policy.
B. Facts1
Before 1987, Respondent imposed few restrictions on em-
ployee smoking at its facilities, prohibiting smoking, gen-
erally, only in those areas when that activity might pose a
safety hazard. During the first half of 1987, Jack Mullen, an
assistant administrator, was instructed by his superiors to de-
velop a more restrictive policy. With the aid of a committee
which he formed to study the matter, Mullen developed a
new policy under which employees were permitted to smoke
in designated areas only. The designated smoking areas in-
cluded lobbies, lounges, locker rooms, cafeteria areas, vend-
ing areas, restrooms, and areas within each department. In
June of that year, Mullen scheduled a meeting to discuss the
new policy, with the presidents of the Ohio Nurses Associa-
tion (representing the nurses working at Respondent’s facili-
ties), the Professional Employees Association (the representa-
tive of the laboratory and pharmacy employees) and Local
627. Kenneth Lewis, president of Local 627, chose not to at-
tend the meeting and did not send a representative. Likewise,
Lewis did not respond to Respondent’s June 18, 1987 letter,
inviting comments and discussion about the new policy. The
policy was implemented on October 1, 1987. At trial, Lewis
testified that he did not seek to engage in negotiations at that
time because he regarded the new policy as fair and reason-
able and one which did not violate the rights of the employ-
ees he represents, some 25 percent of whom are smokers.
Late in 1989, Respondent’s board of trustees, its governing
body, passed a resolution requiring that, effective April 1,
1990, all of Respondent’s facilities become smoke-free. This
directive mandated that employees and others not be per-
mitted to smoke, after April 1, anywhere within Respond-
ent’s facilities. In December 1989, Respondent’s president,
David Cornell, instructed Mullen to implement the smoke-
free policy by April 1, 1990. Mullen formed a task force to
assist in drafting and implementing the new policy.
In January 1990, Mullen contacted Lewis by telephone.
According to Mullen’s testimony, he told Lewis that he,
Mullen, had been asked by Respondent’s president to gather
a task force ‘‘to look at’’ becoming smoke-free by April 1,
1990. Lewis said that he did not want to serve on the com-
mittee but that he would have a steward, Bonnie Flannery,
so serve. Lewis testified that he was told, only, that Re-
spondent was forming a committee with regard to the smok-
ing policy. As no specifics were supplied, and as Lewis had
other matters to attend to, he told the caller that he would
have Flannery attend the committee meetings in his stead.2
784 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
as related by Lewis. I note, too, that the conclusions reached in this
case would not be different if Mullen’s testimony were accepted.
Thus, even if the conversation had occurred as related by Mullen,
the statements made by Mullen were neither an invitation to engage
in collective bargaining, nor a notification that Respondent intended
to ban all smoking in its facilities.
3 For the reasons stated at fn. 1, I credit Lewis’ testimony rather
than Mullen’s, and find that the March 23 meeting occurred, sub-
stantially, as related by Lewis. I find unpersuasive the brief, and
rather vague, testimony of Butler concerning events at the meeting.
4 Respondent argues that any negotiation demands made by Lewis
on March 23 were invalid, as they were addressed to Dr. Butcher,
rather than Cummins, who normally receives bargaining demands. I
reject this contention. Lewis addressed his initial demands for nego-
tiations concerning the new smoking policy to the very official des-
ignated by Respondent to notify the Union of this policy. The de-
mands of Dr. Butcher were made in the presence of Butler, Re-
spondent’s corporate director of human resources. Subsequent writ-
ten demands were addressed to Cummins.
5 NLRB v. Katz, 396 U.S. 736 (1962).
6 See Santa Rosa Blueprint Service, 288 NLRB 762 (1988).
The committee, primarily composed of management offi-
cials, met on five occasions between January 24 and March
28, 1990, and served itsfunction of aiding Respondent in
drafting and implementing a policy to eliminate entirely
smoking in all areas inside its facilities. According to
Mullen’s testimony, Flannery attended at least two of the
meetings. Lewis testified that Respondent did not release her,
and so she was unable to attend many of the meetings. In
any event, the record evidence does not reveal which meet-
ings she attended and which she did not.
Lewis and the presidents of the other unions representing
Respondent’s employees were invited by Respondent on
March 19 to attend a meeting being held on March 23 to dis-
cuss the smoking policy. Mullen testified that the purpose of
the meeting was to inform the union presidents of the new
policy, not to negotiate with them. Prior to that meeting, on
March 20, 1990, an article appeared in the local newspaper
describing Respondent’s new policy. Lewis testified that, on
reading the article, he learned, for the first time, of Respond-
ent’s intentions in this regard.
Lewis attended the March 23, meeting, along with Arleen
Nagy, president of the Nurses Association, and Dave
Shively, president of the Professional Employees Associa-
tion. Conducting the meeting for Respondent were Dr. Gene
Butcher, medical director, Sandy Butler, corporate director of
human resources, and Mullen. According to Lewis’ testi-
mony, Respondent’s officials, with Butcher acting as chief
spokesman, informed the union presidents that Respondent
had adopted a smoke-free policy, and copies of the new pol-
icy were distributed. The union presidents were also advised
that the disciplinary policy would be revised so as to provide
for disciplinary action against employees caught smoking on
Respondent’s premises. Lewis, Nagy, and Shively voiced
their ‘‘disbelief’’ at the manner in which they learned of the
change.
Lewis further testified that he voiced his objections to the
new policy, stated that smokers had rights, and demanded
that Respondent engage in collective-bargaining negotiations
concerning any new policy on smoking. Lewis insisted that
smokers be provided with designated areas in which to
smoke. Butcher responded, stating that there would be no ne-
gotiations and that the new policy was in place. He further
stated that Respondent had considered, and rejected, the pos-
sibility of providing designated smoking areas. Lewis insisted
that there were a number of areas suitable for smoking.
Butcher replied, stating that he had heard it before and he
did not want to hear it again. When Lewis again asked for
negotiations, Butcher stated that he had better things to do,
and he left the meeting. Lewis then talked about the adverse
impact that the new policy would have on the employees he
represents. Under that policy, smoking employees would
have to stand outside the premises, in rain and snow, in order
to smoke. Butler and Mullen shrugged their shoulders.
Butcher did not testify in this proceeding. Mullen, in his
testimony, stated that, at the March 23 meeting, Respond-
ent’s officials advised the union presidents that ‘‘we’re going
with this policy.’’ Mullen further testified that ‘‘I don’t re-
member any request or demand to negotiate over this pol-
icy,’’ but he conceded that there was ‘‘reflective thinking
going on’’ between Lewis and Nagy concerning the need for
negotiations. Butler testified that at the meeting none of the
union presidents requested negotiations, but she conceded
that Lewis made ‘‘references’’ to negotiations.3
It is undisputed that, immediately following the March 23
meeting, Lewis did not visit the neighboring office of Wil-
liam Cummins, Respondent’s vice president of human re-
sources, to make further oral demand for negotiations. Rath-
er, Lewis’ subsequent negotiation demands were made in
writing and were, in fact, addressed to Cummins.4 Thus, on
March 27, Lewis sent a letter to Cummins, received by Re-
spondent on March 30, requesting that Respondent refrain
from implementing the policy prohibiting smoking by em-
ployees and announcing the Union’s willingness to enter into
negotiations with Respondent in order to reach agreement
‘‘on a reasonable no smoking policy which will accommo-
date the needs of all involved.’’ By letter dated April 2,
1990, Cummins responded, stating:
I am unsure as to your reasons why YHA, Inc. must
now negotiate this matter with the Union. We have al-
ways looked upon the implementation of smoking re-
strictions in the Hospital as our right. We have imple-
mented earlier phases of our smoking restriction policy
without request from your Union to negotiate.
On receipt of that letter, Lewis, on April 10, sent another let-
ter to Cummins, adhering to the Union’s demand to negotiate
‘‘a fair and reasonable smoking policy.’’ Respondent did not
reply.
C. Conclusions
Generally, ‘‘an employer violates its duty to bargain col-
lectively when it institutes changes in employment conditions
without notice to and bargaining with the exclusive collec-
tive-bargaining representative of its employee.’’5
In this case, it is beyond legitimate dispute that, when Re-
spondent, beginning April 1, 1990, entirely prohibited smok-
ing in all areas of its facilities, it unilaterally discontinued an
employee privilege, of importance to a large number of unit
employees, which, prior to April 1, had been an existing con-
dition of employment.6
Respondent argues that the Union waived its right to bar-
gain about the total ban on smoking by employees in its fa-
cilities because it did not request to bargain about the partial
785YHA, INC.
7 Murphy Diesel Co., 184 NLRB 757 (1970), enfd. 454 F.2d 303
(7th Cir. 1971).
8 Talbert Mfg., 264 NLRB 1051 (1982).
9 Cf. Ventura County Star Free Press, 279 NLRB 412 (1986).
10 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
ban instituted in 1987, and because it did not timely request
bargaining in 1990. With respect to the Union’s inaction in
1987, I note the established Board case law holding that a
right once waived is not necessarily lost forever.7 Moreover,
in 1987, the Union waived on its bargaining rights con-
cerning the imposition of smoking restrictions. The total ban
imposed in 1990 was an entirely different matter, and was
a material, substantial, and significant change in existing
rules and practices.
With respect to the timeliness of the Union’s request to
bargain in1990, it is true, as argued by Respondent, that the
Union, upon receipt of notice of Respondent’s decision to
change terms and conditions of employment, was obligated
to act with due diligence in requesting bargaining.8 In light
of the participation on the task force, however limited, of the
Union’s designee, Flannery, it may be argued that the Union
learned, or should have learned, prior to March 23, that Re-
spondent planned a substantial modification in its smoking
policy. The fact remains, however, that Respondent did not
formally and fully apprise the Union of its intent completely
to eliminate employee smoking in its facilities until March
23, 1990. At that time, 9 days remained before the intended
implementation of the new policy, an ample amount of time
for bargaining about this issue. On being presented with Re-
spondent’s intended new policy, the Union immediately,
forcefully, and repeatedly demanded negotiations.9 Respond-
ent refused to bargain, asserting that it ‘‘looked upon the im-
plementation of smoking restrictions in the hospital as our
right.’’ In taking that approach, I find and conclude that Re-
spondent failed to fulfill its bargaining obligation, in viola-
tion of Section 8(a)(5) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES ON COMMERCE
The activities of Respondent set forth in section III, above,
occurring in connection with its operations described in sec-
tion I, above, have a close, intimate, and substantial relation-
ship to trade, traffic, and commerce among the several States
and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practice conduct in violation of Section 8(a)(5) and
(1) of the Act, I shall recommend that it be ordered to cease
and desist therefrom and to take certain affirmative action
designed to effectuate the policies of the Act.
CONCLUSIONS OF LAW
1. YHA, Inc. is an employer engaged in commerce and in
operations affecting commerce, within the meaning of Sec-
tion 2(2), (6), and (7) of the Act, and a health care institution
within the meaning of Section 2(14) of the Act.
2. Service Employees International Union Local 627,
AFL–CIO, CLC is a labor organization within the meaning
of Section 2(5) of the Act.
3. All nonprofessional service and maintenance employees
employed by Respondent at its Youngstown, Ohio facilities,
excluding all other employees, guards and supervisors as de-
fined in the Act, constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of Section
9(b) of the Act.
4. At all times material the Union has been, and is now,
the exclusive representative of all employees in the aforesaid
bargaining unit for the purposes of collective bargaining
within the meaning of Section 9(a) of the
5. By implementing changes in the terms and conditions
of employment of the bargaining unit employees, without af-
fording the Union an opportunity to negotiate and bargain
with respect to those changes and the effects thereof, Re-
spondent refused to bargain in good faith with the Union as
the exclusive representative of the bargaining unit employees,
concerning rates of pay, wages, hours, and other terms and
conditions of employment, and thereby engaged in unfair
labor practice conduct within the meaning of Section 8(a)(5)
of the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended10
ORDER
The Respondent, YHA, Inc., Youngstown, Ohio, its offi-
cers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain in good faith concerning rates of
pay, wages, hours, and other terms and conditions of em-
ployment with the Union as the exclusive bargaining rep-
resentative of its employees in the appropriate unit.
(b) Implementing changes in the terms and conditions of
employment of the bargaining unit employees without first
giving adequate and timely notice to the Union and affording
it an opportunity to engage in collective bargaining with re-
spect thereto.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) On request, bargain in good faith with the Union as
the exclusive representative of all employees in the aforesaid
appropriate unit with respect to rates of pay, wages, hours,
and other terms and conditions of employment.
(b) Notify and bargain collectively with the Union, on re-
quest, concerning changes in policy with regard to smoking
inside the facilities by unit employees.
(c) Rescind the April 1, 1990 policy regarding smoking in-
side the facilities by unit employees, and restore the policy
as it existed prior to that date.
786 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
(d) Post at its, Youngstown, Ohio facilities copies of the
attached notice marked ‘‘Appendix.’’11 Copies of the notice,
on forms provided by the Regional Director for Region 8,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice
WE WILL NOT refuse to bargain collectively concerning
rates of pay, wages, hours, and other terms and conditions
of employment with Service Employees International Union
Local 627, AFL–CIO, CLC as the exclusive bargaining rep-
resentative of our employees in the appropriate bargaining
unit:
All nonprofessional service and maintenance employees
employed at the Youngstown, Ohio, facilities, excluding
all other employees, guards and supervisors as defined
in the Act.
WE WILL NOT implement changes in the terms and condi-
tions of employment of the bargaining unit employees with-
out first giving adequate and timely notice to the Union and
affording it an opportunity to engage in collective bargaining
with respect thereto.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of their rights
under the Act.
WE WILL, on request, bargain with the Union as the exclu-
sive representative of all employees in the appropriate unit,
described above, with respect to rates of pay, wages, hours,
and other terms and conditions of employment.
WE WILL notify and bargain collectively with the Union,
on request, concerning changes in policy with regard to
smoking inside the facilities by unit employees.
WE WILL rescind the April 1, 1990 policy regarding smok-
ing inside the facilities by unit employees, and restore the
policy as it existed prior to that date.
YHA, INC.