Mercy Hospital of Buffalo

National Labor Relations Board - Board Decisions

May 28, 1993

311 N.L.R.B. 869 (N.L.R.B. 1993)

869
311 NLRB No. 85
MERCY HOSPITAL OF BUFFALO
1 All dates are in 1991 unless otherwise indicated.
2 The Respondent employed a total of about 2117 employees, in-
cluding supervisory and administrative staff. This included, approxi-
mately, 340 unit employees, 35 maintenance employees represented
by the International Union of Operating Engineers, and 1742 unrep-
resented employees.
Mercy Hospital of Buffalo and Communications
Workers of America, AFL–CIO. Case 3–CA–
16544
May 28, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On a charge filed August 20, 1991, by Communica-
tions Workers of America, AFL–CIO, the General
Counsel for the National Labor Relations Board issued
a complaint September 27, 1991, against Mercy Hos-
pital of Buffalo, the Respondent, alleging that the Re-
spondent violated Section 8(a)(5) and (1) of the Act by
unilaterally eliminating cafeteria service on weekends
between the hours of 2 and 4 a.m., and thereafter uni-
laterally eliminating these same hours of cafeteria serv-
ice during the week. The Respondent filed a timely an-
swer and an amended answer admitting in part and de-
nying in part the allegations in the complaint and rais-
ing affirmative defenses.
On December 30, 1991, the General Counsel, the
Respondent, and the Charging Party filed with the
Board a stipulation and motion to transfer the case to
the Board. The parties stated that the stipulation and
attached exhibits constituted the entire record in this
proceeding, and that they waived a hearing and deci-
sion by an administrative law judge. On April 3, 1992,
the Board approved the stipulation and transferred the
proceeding to the Board for issuance of a decision and
order. Thereafter, the General Counsel and the Re-
spondent filed briefs.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
On the entire record and the briefs, the Board makes
the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a New York not-for-profit corpora-
tion, is engaged as a health care institution in the oper-
ation of an acute care hospital in Buffalo, New York,
where it provides inpatient and outpatient medical and
professional care services. During the 12-month period
preceding the issuance of the complaint, the Respond-
ent, in the course and conduct of its business oper-
ations, derived gross revenues in excess of $500,000
and purchased and received at its Buffalo facility
goods and services valued in excess of $50,000 from
outside the State of New York.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(6) and
(7) of the Act, and that the Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Facts
On March 11, 1991,1 the Union was certified as the
exclusive collective-bargaining representative of the
Respondent’s employees in the following appropriate
unit:
All full-time and regular part-time registered
nurses employed by the Respondent at its Abbott
Road, Buffalo, and South Western Boulevard, Or-
chard Park, New York facilities, including the
registered nurses employed at the Respondent’s
Skilled Care Nursing Facility.
Excluding: All other professional employees, of-
fice clerical employees, technical employees, serv-
ice and maintenance employees, guards and super-
visors as defined in the Act.
Thereafter, the Union and the Respondent com-
menced negotiations for a collective-bargaining agree-
ment. On May 15, the Union submitted the following
proposal: ‘‘Cafeteria services shall be available to all
employees from 6:30 a.m.–8:00 p.m. and 2:00 a.m.–
4:00 a.m.’’ The Union’s proposal reflected the present
practice, which had existed for 10 years, regarding the
2 to 4 a.m. hours. The Respondent rejected the pro-
posal on May 16.
At that time, the Respondent’s cafeteria, which is
part of the dietary department, was open from 6:30
a.m. to 7 p.m. and from 2 to 4 a.m., 7 days per week.
The cafeteria staff consisted of approximately 38 full-
time and part-time employees, including 7 supervisors.
The 2 to 4 a.m. shift was staffed by two cafeteria em-
ployees, each of whom worked an average of 4 hours
per night and earned an average of $7.50 per hour.
These employees provided salads, sandwiches, des-
serts, soups, coffee, and other hot and cold beverages
and snack foods. There were also, at that time, food
and beverage vending machines which provided sand-
wiches, some desserts, coffee, and other hot and cold
beverages and snack foods. Also available to employ-
ees were a microwave oven and a moneychanging ma-
chine. The Respondent employed approximately 174
employees during the 2 to 4 a.m. cafeteria shift, in-
cluding 30–40 unit employees and 3 maintenance em-
ployees represented by the International Union of Op-
erating Engineers.2
870 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On May 19, the Respondent, without prior notice to
the Union and without affording the Union an oppor-
tunity to bargain, eliminated the 2 to 4 a.m. cafeteria
hours on weekends, thereby eliminating the salad bar
and grill area. At the same time, the Respondent in-
stalled an additional food vending machine which pro-
vided soups and salads, as well as food and beverage
items and hot entrees that were not previously avail-
able through vending equipment. The Respondent also
provided a bread toaster for the employees’ use. The
cafeteria premises remained open and accessible to the
employees. The Respondent’s decision to discontinue
the cafeteria hours was based upon economic consider-
ations only. In this regard, the volume of sales on the
discontinued shift averaged $65 to $110 per night, with
a minimum loss of approximately $500 per month.
During the approximately 10 years that the cafeteria
had been in operation, the Respondent had either bro-
ken even on or sustained losses from the operation of
the cafeteria during the nighttime hours. The Respond-
ent concluded, without discussing the matter with the
Union, that the Union could not offer labor cost con-
cessions with respect to the unit that could affect its
decision and, therefore, that the matter of cafeteria
hours did not appear to be amenable to collective bar-
gaining.
On June 19, the Union demanded that the Respond-
ent restore the cafeteria hours that had been discon-
tinued, and that the matter be subject to negotiations.
Although the Respondent indicated a willingness to ne-
gotiate with respect to the general subject of cafeteria
services, including hours, the Respondent asserted its
right to implement the changes complained of and has
continued to refuse to restore the previous hours of op-
eration.
At a negotiation session on August 15, the Respond-
ent advised the Union that it further intended to dis-
continue cafeteria hours between 2 and 4 a.m. on Mon-
days through Fridays, effective September 2, for eco-
nomic reasons. The Union advised the Respondent that
no change in cafeteria hours could be made until the
matter was negotiated, and demanded bargaining. The
Respondent indicated that it was willing to discuss the
decision it had made, but refused to delay implementa-
tion of its decision. No proposals with respect to cafe-
teria service were made at that time or at any time
from August 15 until the hours were discontinued on
September 2. The Respondent made the September 2
changes concerning the weekday hours based on the
same reasons and considerations as the May 19
changes concerning the weekend hours. Since Sep-
tember 2, the Union has made repeated demands that
the Respondent reinstate the discontinued hours of caf-
eteria service. The Respondent has refused the Union’s
demands.
The parties stipulated that the changes in the hours
of operation of the cafeteria service related to wages,
hours, and other terms and conditions of employment
of the unit employees.
B. Issues
The issue before the Board is whether, as alleged in
the complaint, the Respondent violated the Act by uni-
laterally eliminating cafeteria service between 2 and 4
a.m. on weekends and on weekdays. Additionally, the
Respondent’s answer raises the following defenses: (1)
that it has not failed or refused to bargain collectively
or in good faith; and (2) that the Union waived the
right to bargain about the hours of cafeteria service.
C. Contentions of the Parties
The General Counsel, citing Central Mack Sales,
273 NLRB 1268, 1279 (1984); Chemtronics, Inc., 236
NLRB 178, 190 (1978); and Abingdon Nursing Center,
197 NLRB 781, 788 (1972), contends that the Re-
spondent violated Section 8(a)(5) and (1) of the Act by
unilaterally eliminating the 2 to 4 a.m. hours of cafe-
teria service on the weekends and on weekdays with-
out first bargaining with the Union. The General Coun-
sel maintains that the Respondent’s conduct was not de
minimis because a substantial number of unit employ-
ees, 30–40 nurses, are affected by the reduction in caf-
eteria hours. Also significant, according to the General
Counsel, is the fact that the Union considered the sub-
ject to be important enough to warrant the submission
of a proposal on May 15 regarding the cafeteria’s
hours of operation. The General Counsel further con-
tends that because the Respondent operated the cafe-
teria from 2 to 4 a.m. for 10 years at a financial loss
or, at best, breaking even, these losses do not con-
stitute the sort of extreme and precipitous economic
disaster that would justify an employer’s unilateral ac-
tion before offering the union an opportunity to bar-
gain. Expressing disagreement with the Respondent’s
position that the issue was not amenable to collective
bargaining, the General Counsel contends that the Re-
spondent could have bargained with the Union about
eliminating the vending machines or reducing the day-
time hours of cafeteria service in order to cut costs.
Additionally, the General Counsel distinguishes cases
such as E. I. du Pont & Co., 269 NLRB 24 (1984),
in which the Board, relying on the unpredictable nature
of the restaurant business, found that the employer did
not violate the Act by unilaterally implementing price
increases with respect to cafeteria and vending ma-
chine food. In this regard, the General Counsel con-
tends that a decision about cafeteria operating hours,
unlike food price considerations, is not driven by con-
stantly fluctuating outside conditions. Finally, citing
Mar-Jac Poultry Co., 136 NLRB 785 (1962), the Gen-
eral Counsel requested as part of the remedy that the
871MERCY HOSPITAL OF BUFFALO
3 The respondent had encouraged 10-cent contributions, but the
judge found that such donations were rarely made by the employees.
certification year be extended because the Respond-
ent’s conduct, occurring after the Union had submitted
a cafeteria services proposal in negotiations, under-
mined the Union’s bargaining strength.
The Respondent contends that the change in cafe-
teria hours was not material. Although it eliminated
two cafeteria personnel and the salad bar and grill
area, the Respondent maintains that the only changes,
from the perspective of the employees, were that sal-
ads became available only through vending machines
rather than from a salad bar, and that hot sandwiches
were available through vending machines, a microwave
oven, and a toaster rather than through cafeteria per-
sonnel. The Respondent further contends that, in fact,
more hot entrees were available through vending ma-
chines after the alleged unlawful changes than had pre-
viously been offered through the cafeteria, and that the
cafeteria premises remained open and accessible to em-
ployees. According to the Respondent, the change in
cafeteria hours was not material for the further reason
that it would affect only the small—and possibly even
nonexistent—number of unit employees who utilized
the food services provided by the cafeteria personnel
rather than the vending machines. Noting that the dis-
continuance of the cafeteria hours was based exclu-
sively on economic considerations, the Respondent fur-
ther contends that the matter was not amenable to col-
lective bargaining because the Union does not rep-
resent the cafeteria personnel or the large majority of
the night-shift employees and, therefore, could not
offer significant labor cost concessions. Regarding its
waiver defense, the Respondent contends that because
its rejection of the Union’s May 15 proposal made
clear that the Respondent was not agreeable to con-
tinuing the 2 to 4 a.m. cafeteria service, the conclusion
is warranted that the parties did bargain about the
hours of service. Under the circumstances, the Re-
spondent maintains that it was not necessary to notify
the Union before implementing the May 19 change.
Regarding the further change in the hours of cafeteria
service that was implemented in September, the Re-
spondent, citing Haddon Craftsmen, 300 NLRB 789
(1990), and Kenton Transfer Co., 298 NLRB 487
(1990), contends that although it advised the Union of
a change ‘‘that it was ‘intending’ to make effective
September 2,’’ the Union waived its right to bargain
because it never initiated bargaining or made proposals
other than to demand the restoration of the status quo.
Finally, the Respondent maintains that Abingdon Nurs-
ing Center and Central Mack Sales, supra, are distin-
guishable because they involved respectively, the
elimination of employer-provided and free coffee rath-
er than, as in the instant case, the provision of the
same food products but through vending machines
rather than through cafeteria personnel.
D. Discussion
For the following reasons, we find that the Respond-
ent’s elimination of cafeteria service from 2 to 4 a.m.
on weekends and on weekdays constitutes unlawful
unilateral changes. As an initial matter, we find, con-
sistent with the parties’ stipulation, that the operating
hours of the Respondent’s cafeteria is a matter relating
to wages, hours, and terms and conditions of employ-
ment of the unit employees. In this regard, the Court
in Ford Motor Co. v. NLRB, 441 U.S. 448 (1979), in
upholding the Board’s finding that in-plant food prices
and services are terms and conditions of employment
that are mandatory subjects of bargaining, held:
[T]he availability of food during working hours
and the conditions under which it is to be con-
sumed are matters of deep concern to workers,
and one need not strain to consider them to be
among those ‘‘conditions’’ of employment that
should be subject to the mutual duty to bargain.
By the same token, where the employer has cho-
sen, apparently in his own interest, to make avail-
able a system of in-plant feeding facilities for his
employees, the prices at which food is offered and
other aspects of this service may reasonably be
considered among those subjects about which
management and union must bargain. The terms
and conditions under which food is available on
the job are plainly germane to the ‘‘working envi-
ronment’’. . . . [Footnotes omitted. Id. at 498.]
In so finding, the Court rejected the employer’s ar-
gument that in-plant food prices and service are too
trivial to qualify as mandatory subjects, noting that the
fact that the bargaining unit employees pressed an un-
successful boycott to secure a voice in setting food
prices indicated that the unit employees considered the
matter ‘‘far from trivial.’’
The Board has found unlawful unilateral conduct
where employers have made changes regarding the
availability of food on company premises, including
the method by which the food is provided. For exam-
ple, in Central Mack Sales, supra, the Board adopted
the administrative law judge’s finding that the respond-
ent violated Section 8(a)(5) and (1) by unilaterally dis-
continuing its practice of providing coffee at no re-
quired cost,3 and installing a vending machine that
provided coffee at 25 cents per cup. In finding a viola-
tion, the judge observed that even if, once the vending
machine was installed, the respondent by reason of its
contract with the machine supplier could not control
the price per cup, ‘‘it very much was within the re-
spondent’s discretion to determine, in the first instance,
872 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 The respondent’s conduct in Chemtronics was also found to vio-
late Sec. 8(a)(3).
5 Cf. E. I. du Pont & Co., 189 NLRB 753 (1971) (respondent did
not violate Sec. 8(a)(5) by, inter alia, closing the cafeteria on week-
ends, holidays, and nights where it bargained to impasse with the
union with respect to the changes made).
6 We therefore disagree with the Respondent’s efforts to distin-
guish this case from the precedent cited by the General Counsel.
7 Cf. Abingdon Nursing Center, supra at fn. 22.
8 The Respondent does not contend that compelling economic cir-
cumstances justified its unilateral action. Cf. Aquaslide ‘N’ Dive
Corp., 281 NLRB 219 (1986). Additionally, the Respondent has not
relied on precedent involving an employer’s more limited bargaining
obligation with respect to a change in food prices. In this regard, we
note that the Respondent stated in its brief that the employees were
not subjected to a change in cafeteria food prices.
9 In view of the Court’s finding in Ford Motor Co., supra, that in-
plant food services are a mandatory subject of bargaining, we find
that the Respondent’s citation to Dubuque Packing Co., 303 NLRB
386 (1991), which involves an employer’s relocation decision, is in-
apposite.
whether the machine was to be installed.’’ 273 NLRB
at 1279.
In Chemtronics, supra, the Board adopted the ad-
ministrative law judge’s finding that the respondent
violated Section 8(a)(5) and (1) by unilaterally dis-
continuing its practice of providing employees with
coffee and rolls.4 Similarly, in Abingdon Nursing
Home, supra, the Board adopted the administrative law
judge’s finding that the respondent violated Section
8(a)(5) by unilaterally discontinuing its practice of pro-
viding company food for pay, and requiring instead
that employees provide their own food for meals and
coffeebreaks. In so finding, the judge noted that ‘‘from
the very beginning, the question of what type of food
was to be made available to the employees for their
lunch while at work was an important consideration in
their employment.’’ 197 NLRB at 788.5
Relying on the above precedent, we find, contrary to
the Respondent’s contentions, that the changes in the
hours of cafeteria service, effective on May 19 and
September 2, were material, substantial, and signifi-
cant. The Respondent maintains that the changes were
not material because, in essence, the same categories
of food continued to be available after the nighttime
cafeteria hours were discontinued, but the food was
provided through vending machines rather than
through cafeteria personnel. The Respondent’s change
would, however, affect other aspects of the in-plant
food service, a subject which the Court in Ford Motor
Co., supra, found to be of importance to employees.
For example, after the changes, cafeteria personnel
would no longer be available to maintain the cafeteria
premises. Also of concern to the employees would be
differences in quality and convenience between food
provided by cafeteria personnel and food coming from
vending machines. It, therefore, follows that even
though the same categories of food continued to be
available, it was not inconsequential to the unit em-
ployees whether they purchased their food from cafe-
teria personnel or from vending machines. Thus, the
Respondent’s discontinuance of cafeteria service dur-
ing the night shift was a matter that was ‘‘germane to
the working environment’’ under Ford Motor Co.,
supra, not unlike the discontinuance of employer-pro-
vided food in Abingdon Nursing Center, supra, and the
discontinuance of free coffee in Central Mack Sales,
supra.6
The Respondent also contends that its change was
not material because, at most, only a small percentage
of the night-shift unit employees would be affected by
the discontinuance of cafeteria service. The parties
stipulated that there are 30–40 unit employees on the
night shift; there is nothing in the stipulated facts that
would support the Respondent’s contention that only a
few of those unit employees ate food provided by the
cafeteria personnel rather than from the vending ma-
chines.7 Additionally, as the General Counsel contends,
the fact that the Union presented a bargaining proposal
regarding the hours of service is evidence that the bar-
gaining unit employees considered the issue to be sig-
nificant. See Ford Motor Co., 441 U.S. at 501.
Additionally, the Respondent maintains that its con-
duct was not unlawful because the discontinuance of
cafeteria service was based exclusively upon economic
considerations, and that the issue was not amenable to
collective bargaining because the Union could not
offer significant labor cost concessions.8 In rejecting
the Respondent’s argument, we note initially that the
Court in Ford Motor Co., supra at 498, relying on Jus-
tice Stewart’s concurring opinion in Fibreboard Corp.
v. NLRB, 379 U.S. 203, 223 (1964), stated that where
an employer is not in the business of selling food to
its employees, the establishment of in-plant food prices
is not among those ‘‘managerial decisions, which lie at
the core of entrepreneurial control.’’ The Court, there-
fore, concluded that in finding in-plant food prices and
services to be a mandatory subject of bargaining,
‘‘[t]he Board is in no sense attempting to permit the
Union to usurp managerial decision-making.’’9 It,
therefore, follows that where the Respondent here is
not in the business of selling food, the provision of
cafeteria services is not a managerial decision relating
to the core of entrepreneurial control which is exempt
from a bargaining obligation. Further, an employer’s
obligation to bargain with a union about mandatory
subjects is not excused by economic expediency, even
in good faith. Master Slack, 230 NLRB 1054 (1977),
enfd. 618 F.2d 6 (6th Cir. 1980).
Regarding the Respondent’s related contention that
the Union could not offer labor cost concessions, we
find that although the Union does not represent either
the majority of the night-shift employees or the cafe-
teria employees, the definition of a mandatory collec-
tive-bargaining subject does not depend on the number
873MERCY HOSPITAL OF BUFFALO
10 It is true, as the dissent contends, that the parties stipulated that
the Respondent advised the Union on August 15, 1991, of the
change in cafeteria hours that it intended to make, and that the Re-
spondent indicated it was willing to discuss the decision. However,
both the Respondent in its brief and our colleague in his dissenting
opinion fail to address a critical additional statement that appears in
the stipulation. The stipulation states, ‘‘Respondent indicated that it
was willing to discuss the decision it had made, but refused to delay
implementation of its decision [emphasis added].’’ The stipulation,
read as a whole, indicates that the Respondent’s expressed willing-
ness to ‘‘discuss’’ was not a willingness to bargain, because the Re-
spondent was effectively putting the Union on notice that it was
going to implement the decision as planned regardless of what the
Union might counterpropose before the scheduled implementation
date. Cf. Emhart Industries, 297 NLRB 215, 216 (1989) (no viola-
tion where employer announced a procedure for reinstating employ-
ees on a certain date without indicating that it would not ‘‘change
its mind,’’ and union failed to request bargaining). Under the cir-
cumstances, we disagree with the dissent’s assertion that no one
could reasonably contend that the Respondent suggested the futility
of bargaining.
11 In Owens-Corning, supra, the Board, in affirming the judge’s
finding that the respondent violated Sec. 8(a)(5) by unilaterally
changing its employee purchase plan, found that the respondent’s
proposal was presented as a fait accompli because the management
representatives who announced the plan to union representatives also
made statements indicating that nothing could be done about the
plan. We agree with the dissent’s assertion that in this case the Re-
spondent did not precisely state that ‘‘nothing could be done.’’ How-
ever, we find that the Respondent’s statement that it would not delay
implementation, considered in the context of its prior unlawful uni-
lateral change, similarly conveyed the message that bargaining would
be futile.
By contrast, in W-I Forest Products Co., 304 NLRB 957, 961
(1991), the Board refused to rely on similar statements made by
management as evidence of futility where, unlike in the instant case
where the Respondent announced that it would not delay implemen-
tation of its decision, the respondent had offered in writing to bar-
gain about its plan when it was first announced to the union. The
Board in W-I Forest Products found the statements insufficient to
overcome the respondent’s earlier express invitation to bargain.
12 The presence of objective evidence that bargaining would be fu-
tile distinguishes the instant case from Haddon Craftsmen, supra,
cited by the Respondent, in which the Board found that the union
representative’s subjective impression of the respondent’s state of
mind and the respondent’s use of positive language in the notice an-
nouncing its change did not constitute objective evidence of futility
that would excuse the union from its obligation to demand bar-
gaining.
Continued
of unions within the bargaining unit. Ford Motor Co.,
supra at 502 fn. 13. Moreover, as the General Counsel
contends, the Respondent could have bargained with
the Union about cost cutting measures such as the re-
duction in daytime cafeteria hours or eliminating vend-
ing service.
Finally, we reject the Respondent’s contention that
the Union waived the right to bargain about the
changes in cafeteria hours. Regarding the May 19 dis-
continuance of the 2 to 4 a.m. weekend hours, we find
no merit in the Respondent’s contention that its rejec-
tion of the Union’s May 15 proposal constituted bar-
gaining. The parties stipulated that the Respondent in-
stituted the May 19 changes without prior notice to the
Union and without affording the Union an opportunity
to bargain. In the absence of clear notice of the in-
tended change, there is no basis on which to find that
the Union waived its right to bargain. See Fountain
Valley Regional Hospital, 297 NLRB 549, 551 (1990).
We further find, contrary to the dissent, that the
Union did not waive the right to bargain about the
September 2 discontinuance of the 2 to 4 a.m. hours
during the week. The Board does not find a waiver
when the change has essentially been made irrevocable
prior to the notice or has otherwise been announced as
a matter on which the employer will not bargain.
Michigan Ladder Co., 286 NLRB 21 (1987); Glass &
Pottery Workers (Owens-Corning), 282 NLRB 609 fn.
1 (1987). The Board looks for objective evidence in
determining whether an employer has unlawfully pre-
sented a union with a ‘‘fait accompli.’’ Further, an em-
ployer’s use of positive language in presenting its pro-
posal does not constitute an indication that a request
for bargaining would be futile. In applying these stand-
ards, the Board in Haddon Craftsmen, 300 NLRB at
790 fn. 8, observed:
Board law requires an employer, after reaching a
decision concerning a mandatory subject, to delay
implementation of the decision until after it has
consulted with the bargaining representative, but
does not require that the employer delay the deci-
sion-making process itself. Lange Co., 222 NLRB
558, 563 (1976).
Although the Respondent in its brief contends that
it presented the Union with a change ‘‘that it was ‘in-
tending’ to make,’’ we find, based on the facts as stip-
ulated by the parties, that the Respondent did more
than present its proposed change in positive language
or as a fully developed plan. As stipulated:
The Union advised Respondent that no change in
cafeteria hours could be made by Respondent
until the matter was negotiated, and demanded
bargaining on the matter. Respondent indicated
that it was willing to discuss the decision it had
made, but refused to delay implementation of its
decision.
In view of the Respondent’s obligation to delay imple-
mentation of its decision, we find that the Respond-
ent’s express statement refusing to delay such imple-
mentation, made in response to the Union’s demand
for bargaining and considered in the context of the
May 15 unlawful changes, constitutes objective evi-
dence that bargaining would be futile.10 See Owens-
Corning, supra at fn. 1.11 Following this statement, the
Union was, therefore, relieved of any further obligation
to request or pursue bargaining concerning the
change.12 Under the circumstances, we reject the Re-
874 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Also distinguishable is Kenton Transfer, 298 NLRB 487, in which
the Board dismissed the 8(a)(5) complaint allegation where, unlike
here, the respondent remained ready and willing to discuss contract
terms and urged the union to respond to its proposals, but the union
protested the respondent’s action and gave no indication that it
would be amenable to further bargaining.
Finally, we find that Jim Walter Resources, 289 NLRB 1441, 1442
(1988), cited by the dissent, is not applicable to the facts here be-
cause that case did not involve a proposal presented by the employer
to the union as a fait accompli. See fn. 6 of that decision, which
cites and distinguishes precedent we have relied on here.
13 We have not, as the dissent maintains, refashioned the rules
governing the collective-bargaining process. Rather, we emphasize
our reliance on precedent that holds that when, as here, an employer
presents its proposal as a fait accompli, a union is thereafter relieved
of any further obligation to pursue bargaining concerning the change.
14 Contrary to the General Counsel’s request, we find that an ex-
tension of the certification year under Mar-Jac Poultry Co., 136
NLRB 785, is not warranted to remedy the Respondent’s unlawful
unilateral changes. See American Rubber & Plastics Corp., 200
NLRB 867, 876–877 (1972). See also Bay Diner, 279 NLRB 538
(1986).
15 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.’’
spondent’s contention that the Union did not act with
due diligence, and therefore waived the right to bar-
gain about the hours of cafeteria service.13
Accordingly, we conclude that the Respondent vio-
lated Section 8(a)(5) and (1) by unilaterally changing
the hours of cafeteria service on May 15 and Sep-
tember 2, 1991.
CONCLUSION OF LAW
By unilaterally eliminating cafeteria service between
2 and 4 a.m. on weekends and on weekdays without
giving the Union notice and an opportunity to bargain,
the Respondent has engaged in unfair labor practices
affecting commerce within the meaning of Section
8(a)(5) and (1) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, we shall order the Re-
spondent to cease and desist and to take certain affirm-
ative action to effectuate the policies of the Act. We
shall order the Respondent, on request, to restore the
hours of cafeteria service as they existed prior to the
May 19 discontinuance of the 2 to 4 a.m. hours on
weekends and the September 2 discontinuance of those
same hours on weekdays. We shall also order the Re-
spondent to bargain with the Union before making
such unilateral changes.14
ORDER
The National Labor Relations Board orders that the
Respondent, Mercy Hospital of Buffalo, New York, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Unilaterally eliminating cafeteria service between
2 and 4 a.m. on weekends and on weekdays without
first giving notice and an opportunity to bargain to the
Communications Workers of America, AFL–CIO as
the collective-bargaining representative of the employ-
ees in the following appropriate unit:
All full-time and regular part-time registered
nurses employed by the Respondent at its Abbott
Road, Buffalo, and South Western Boulevard, Or-
chard Park, New York facilities, including the
registered nurses employed at the Respondent’s
Skilled Care Nursing Facility.
Excluding: All other professional employees, of-
fice clerical employees, technical employees, serv-
ice and maintenance employees, guards and super-
visors as defined in the Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Restore, on request, the hours of cafeteria service
as they existed prior to the changes made on May 19,
1991, and September 2, 1991, and bargain collectively
with the Union as the exclusive bargaining representa-
tive of the employees in the above appropriate unit
with respect to cafeteria hours and other terms and
conditions of employment.
(b) Post at its facility in Buffalo, New York, copies
of the attached notice marked ‘‘Appendix.’’15 Copies
of the notice, on forms provided by the Regional Di-
rector for Region 3, after being signed by the Re-
spondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and main-
tained 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 al-
tered, defaced, or covered by any other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
MEMBER OVIATT, concurring and dissenting.
I concur with my colleagues in finding that the Re-
spondent violated Section 8(a)(5) by unilaterally elimi-
nating certain cafeteria service on May 19, 1991.
I cannot agree, however, with their conclusion that
the Respondent also violated the Act by discontinuing
other cafeteria service on September 2, 1991. To prop-
erly assess this situation, I believe it is necessary to
consider the factual background. Respondent Hospital
operated a cafeteria which was open from 6:30 a.m. to
875MERCY HOSPITAL OF BUFFALO
7 p.m. and from 2 to 4 a.m., 7 days per week. The
2 to 4 a.m. shift was staffed with two individuals who
provided salads, sandwiches, desserts, soups, coffee,
other hot and cold beverages, and snack foods. In addi-
tion, there were food and beverage vending machines
which also provided sandwiches, desserts, coffee, other
hot and cold beverages, and snack foods. On May 19,
when the Respondent discontinued the staffing for the
2 to 4 a.m. cafeteria service for weekends, it installed
an additional food vending machine which provided
soups and salads, and expanded the selection of pre-
viously provided food and beverage items, as well as
hot entrees that had not previously been available
through the vending equipment, and a bread toaster
was added to the microwave oven, available for em-
ployee use. The cafeteria premises remained open and
accessible to employees.
At a negotiation session between the parties on
Thursday, August 15, 1991, the Respondent advised
the Union that it ‘‘intended to discontinue cafeteria
hours between 2 AM and 4 AM on Mondays through
Fridays, effective September 2, 1991, for economic
reasons.’’ The Union responded that no change in caf-
eteria hours could be made until the matter was nego-
tiated. The Respondent indicated it was willing to dis-
cuss the decision. The Union made no proposals then,
or at any time from August 15 until the Respondent
implemented the discontinuance. The parties agree that
the Respondent discontinued the 2 to 4 a.m. hours
based only on economic considerations, that it was los-
ing a minimum of approximately $500 per month on
that shift, it had either broken even or sustained losses
for some 10 years for those hours, and that it had con-
cluded that the Union could not offer labor cost con-
cessions that could have affected its decision, and,
therefore, that the matter did not appear to the Re-
spondent to be amenable to the collective-bargaining
process.
In my view it is clear from the above that there is
no violation with regard to the September 2 partial dis-
continuance of the 2 to 4 a.m. cafeteria shift. Indeed,
I believe finding a violation of the Act in this regard
is inconsistent with the cases cited by my colleagues,
as well as other Board precedent.
My colleagues begin their analysis of this question
with the observation that ‘‘the Board does not find a
waiver when the change has essentially been made ir-
revocable prior to the notice or has otherwise been an-
nounced as a matter on which the Employer will not
bargain,’’ citing Michigan Ladder Co., 286 NLRB 21
(1987), and Glass & Pottery Workers (Owens-Cor-
ning), 282 NLRB 609 (1987). I have no quarrel with
the general proposition stated. But I am at a loss to un-
derstand what those cases have in common with this
one. In Michigan Ladder Co., supra, in discussing the
respondent’s failure to bargain over subcontracting, the
majority noted the following in support of finding that
the respondent presented nothing more than a ‘‘fait
accompli’’:
Members Stephens and Johansen note that, in
agreeing that the Respondent did not afford the
Union a reasonable opportunity for bargaining,
they are not faulting the Respondent simply for
having worked out a detailed plan for the subcon-
tracting in advance. See Owens-Corning Fiberglas
Corp., 282 NLRB 609 (1987). However, where,
as here an employer conceals and misrepresents
details of an arrangement already worked out with
the subcontractor when it presents the plan to the
bargaining representative and when the employer
agrees with the subcontractor to put the arrange-
ment into effect at a time when the bargaining
representative is still in the dark about what is
happening, they cannot find that the employer has
afforded the bargaining representative the oppor-
tunity for negotiations that is due under the Act.
[Id. at fn. 4.]
In affirming the judge’s conclusion that the respond-
ent in Owens-Corning violated Section 8(a)(5) in fail-
ing to bargain about changes in the employee purchase
plan, the majority (Members Johansen and Stephens)
stated: ‘‘The gravamen of the Respondent’s offense
here was that, according to testimony credited by the
judge, the management representatives who announced
the plan to union representatives on August 6 also
made statements indicating that nothing could be done
about the plan.’’ Id. at fn. 1.
But there is no suggestion in this case that the Re-
spondent has ‘‘concealed’’ or ‘‘misrepresented’’ details
of an arrangement worked out with someone else, nor
agreed with a subcontractor to put an arrangement into
effect when the bargaining representative is ‘‘still in
the dark.’’ Nor is there credited testimony showing
that management representatives made statements indi-
cating that ‘‘nothing could be done.’’ Rather, the Re-
spondent here simply worked out its proposal in ad-
vance and notified the Union about what it intended to
do. My colleagues concede that an employer’s use of
positive language in presenting a proposal does not
constitute an indication that a request for bargaining
would be futile. Nor could one reasonably contend that
the Respondent in this case had in any way suggested
that bargaining would be futile. My colleagues state
that ‘‘the Respondent in its brief contends that it pre-
sented the Union with a change that it was ‘intending’
to make,’’ but they find that the Respondent did more,
i.e., that it made clear that bargaining would be futile.
I cannot agree. In my view, to make such finding
would require going at least beyond, if not behind, the
parties’ stipulation. First, contrary to my colleagues,
the Respondent’s ‘‘intention’’ is not simply a ‘conten-
tion’ in the brief; it is part of the parties’ own stipula-
876 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 American Bus Lines, 164 NLRB 1055 (1967).
2 Chevron Chemical Co., 261 NLRB 44, 46 (1982), quoting from
NLRB v. American National Insurance Co., 343 U.S. 395, 404
(1952) (footnote omitted).
tion submitted to the Board which states that, on Au-
gust 15, the Respondent ‘‘advised the Union that it in-
tended to discontinue cafeteria hours . . . effective
September 2, 1991, for economic reasons.’’ To dis-
regard the parties’ own stipulation of facts and treat it
as merely a contention in a brief requires an adverse
credibility finding that the parties expressly waived,
and that we are not in a proper position to make.
The Respondent announced its intention at a bar-
gaining session on August 15. The Union protested the
action and demanded bargaining. The Respondent
agreed, but declined to cancel its proposed date of im-
plementation which was then still 18 days hence. That
does not amount to presenting the Union with a ‘‘fait
accompli.’’ Nor does it objectively demonstrate that
bargaining would be futile. As the Board observed in
Haddon Craftsmen, 300 NLRB 789 (1990), an em-
ployer after reaching a decision concerning a manda-
tory subject ‘‘must delay implementation of the deci-
sion until after it has consulted with the bargaining
representative.’’ That is what happened here. Indeed,
even the 18-day proposed delay in implementation is
not shown here to have been set in stone. We do not
know what would have happened if the Union had ex-
ercised diligence in enforcing its representational
rights. Here, the Respondent provided the Union with
some 18 days’ notice of the proposed change. ‘‘The
Board has on occasion found as little as 2 days’ notice
adequate; it has frequently found notice ranging from
4 to 8 days sufficient.’’ (Jim Walter Resources, 289
NLRB 1441, 1442 (1988).) At that point, it behooved
the Union to do more than merely protest the Respond-
ent’s proposal (or file an unfair labor practice charge).
Rather, it ‘‘became incumbent upon the Union to en-
force its bargaining rights diligently by attempting to
persuade the Respondent to alter its decision if it found
the decision unacceptable.’’1 But the Union did not do
so. It did not make any proposal on August 15. Indeed,
it did not make any proposal the next day, or the next,
or at all, until after the implementation on September
2—at which point it demanded that the Respondent re-
scind its action.
What my colleagues’ conclusion amounts to here, is
a finding that after one party makes a proposal in good
faith, with adequate notice before the intended imple-
mentation, and the other party objects and says ‘‘you
can’t do that,’’ the party making the initial proposal
must then rescind it or alter it to the satisfaction of the
receiving party or the Board. Indeed, I believe that is
precisely the effect of my colleagues’ assertion that the
Respondent’s stipulated willingness to discuss the mat-
ter here was ‘‘not a willingness to bargain.’’ They say
this, absent any determinations on credibility, and not-
withstanding the fact that there was absolutely no at-
tempt by the Union thereafter to bargain or otherwise
test the situation by putting forth any proposal at all.
With all due respect, I submit that that is neither how
collective bargaining actually works, nor how it is sup-
posed to work.
To require one of the parties in collective bargaining
to rescind or recast a proposal presented in good faith
and with clearly adequate notice based on a mere ob-
jection by the other party, and particularly in the ab-
sence of that other party ‘‘diligently attempting to per-
suade’’ the first party to alter the decision, in my view
represents an unwarranted and inappropriate intrusion
by the Board into the substance, as opposed to the
process, of collective bargaining. I believe that is con-
trary to the longstanding proposition that the Board
does not ‘‘either directly or indirectly, compel conces-
sions or otherwise sit in judgment upon the substantive
terms of collective bargaining agreements.’’2
Accordingly, I would dismiss the allegation con-
cerning the partial discontinuance of cafeteria shift
hours on September 2, 1991.
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
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT unilaterally eliminate cafeteria service
on weekends and on weekdays without first giving no-
tice and an opportunity to bargain to the Communica-
tions Workers of America, AFL–CIO as the collective-
bargaining representative of the employees in the fol-
lowing appropriate unit:
All full-time and regular part-time registered
nurses employed by the Respondent at its Abbott
Road, Buffalo, and South Western Boulevard, Or-
chard Park, New York facilities, including the
registered nurses employed at the Respondent’s
Skilled Care Nursing Facility.
Excluding: All other professional employees, of-
fice clerical employees, technical employees, serv-
ice and maintenance employees, guards and super-
visors as defined in the Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL, on request, restore the hours of cafeteria
service as they existed prior to the changes made on
877MERCY HOSPITAL OF BUFFALO
June 19, 1991, and September 2, 1991, and bargain
collectively with the Union as the exclusive bargaining
representative of the employees in the above appro-
priate unit with respect to cafeteria hours and other
terms and conditions of employment.
MERCY HOSPITAL OF BUFFALO