Trinity Health - Michigan d/b/a St. Joseph Mercy Oakland Hospital

National Labor Relations Board - Board Decisions

Jun 18, 2020

369 N.L.R.B. 103 (N.L.R.B. 2020)

369 NLRB No. 103
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Trinity Health—Michigan d/b/a St. Joseph Mercy
Oakland Hospital and Council 25, Michigan
American Federation of State, County, and Mu-
nicipal Employees, AFL–CIO. Case 07–CA–
161375
June 18, 2020
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN AND
EMANUEL
On May 25, 2017, Administrative Law Judge Christine
E. Dibble issued the attached decision. The Respondent
filed exceptions and a supporting brief, the General Coun-
sel and the Charging Party each filed an answering brief,
and the Respondent filed a reply brief.
The National Labor Relations Board has considered the
decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,1 and conclusions and to adopt the judge’s recom-
mended Order as modified and set forth in full below.2
I.
As fully set forth in the judge’s decision, the Respond-
ent, which operates an acute care hospital, has had a
longstanding collective-bargaining relationship with
Council 25, Michigan American Federation of State,
County, and Municipal Employees, AFL–CIO (the Un-
ion), which represents a unit of employees that includes
pharmacy technicians. The parties’ recognition clause,
which has appeared in successive collective-bargaining
agreements since 1971, excludes “licensed associates.”
Following the passage of a state law that required all phar-
macy technicians to obtain licenses, the Respondent uni-
laterally removed pharmacy technicians from the existing
unit and created a new licensed pharmacy technician po-
sition that was outside of the unit. The Respondent as-
serted that the removal of the pharmacy technicians from
the unit was necessary because the parties’ recognition
clause specifically excluded licensed associates.
1 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 preponderance
of all the relevant evidence convinces us that they are incorrect. Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for re-
versing the findings.
II.
The judge found that the Respondent violated Section
8(a)(5) and (1) of the Act by unilaterally removing the
classification of pharmacy technicians and the work per-
formed by those employees from the bargaining unit. As
an initial matter, she found that the removal of this posi-
tion from the unit constituted a mandatory subject of bar-
gaining. The judge then found that the language of the par-
ties’ collective-bargaining agreement did not specifically
require the removal of licensed pharmacy technicians. Fi-
nally, she found that the Respondent “did not significantly
alter the pharmacy technicians’ duties after they became
licensed.” She noted that, in spite of the Respondent’s as-
sertion that the new position encompassed additional job
duties, “the job functions of the pharmacy technicians’ pre
and postlicensure were substantially the same.” Accord-
ingly, she concluded that the Respondent failed to prove
that the duties of licensed pharmacy technicians made
those employees sufficiently dissimilar from the remain-
der of the unit so as to warrant their removal.
III.
Although we adopt the judge’s conclusion that the Re-
spondent violated Section 8(a)(5) and (1), we clarify that
the Respondent’s removal of the pharmacy technicians
from the bargaining unit was a permissive subject of bar-
gaining, not a mandatory one as found by the judge. It is
well settled that an alteration of the scope or composition
of an existing bargaining unit is a permissive subject of
bargaining. See Hill-Rom Co. v. NLRB, 957 F.2d 454, 457
(7th Cir. 1992); Facet Enterprises, 290 NLRB 152, 152
(1988), enfd. 907 F.2d 963 (10th Cir. 1990). “Accord-
ingly, once a specific job has been included within the
scope of the bargaining unit by either Board action or con-
sent of the parties, the employer cannot unilaterally re-
move or modify that position without first securing the
consent of the union or the Board.” Hill-Rom, 957 F.2d at
457. By contrast, an employer’s transfer of work out of a
bargaining unit ordinarily constitutes a mandatory subject
of bargaining. Id. The Board has rejected attempts by em-
ployers to characterize a change in the scope of a unit as a
transfer of work when the same employees continue to do
the work. See, e.g., Beverly Enterprises, 341 NLRB 296,
296 (2004).
Here, the Respondent purported to create a new nonunit
licensed pharmacy technician position with different job
2 We have amended the remedy and modified the judge's recom-
mended Order consistent with our legal conclusions herein, to conform
to the Board's standard remedial language, and in accordance with our
recent decision in Danbury Ambulance Service, Inc., 369 NLRB No. 68
(2020), and we have substituted a new notice to conform to the Order as
modified.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
duties. We find, however, that the Respondent did not cre-
ate a new position or transfer work to nonunit employees;
it merely renamed and removed from the unit an existing
unit position under the guise of creating a new nonunit po-
sition. Specifically, the judge found that the same employ-
ees who had been unit pharmacy technicians continued to
perform the same work as nonunit licensed pharmacy
technicians. We thus conclude that the Respondent’s re-
moval of pharmacy technicians constituted a change in the
scope of the unit, a permissive subject of bargaining. See
id. (“The same employees continue to do the work. The
Respondent attempted to change the scope of the bargain-
ing unit by taking the position that these represented em-
ployees and their work were now outside the bargaining
unit.”).3 Accordingly, the Respondent violated Section
8(a)(5) and (1) by removing the pharmacy technicians
from the unit without securing the consent of the Union.4
AMENDED REMEDY
Having found that the Respondent engaged in certain
unfair labor practices, we shall order it to cease and desist
and to take certain affirmative action designed to effectu-
ate the policies of the Act. With respect to the Respond-
ent's unlawful alteration of the scope of the unit, we shall
order the Respondent to restore the status quo ante by rec-
ognizing the Union as the exclusive collective-bargaining
representative of the Respondent’s pharmacy technicians
and rescinding their removal from the unit, and by offering
the employees who previously held those unit positions
the same wages, benefits, and other terms and conditions
of employment that they had prior to the elimination of
their positions. We shall also order the Respondent to re-
store the status quo ante and to continue in effect all terms
and conditions of employment contained in the collective-
3 In addition, we agree with the judge that the Respondent failed to
show that the licensed pharmacy technicians were sufficiently dissimilar
from the rest of the unit so as to justify their removal from the unit. See
Bay Shipbuilding Corp., 263 NLRB 1133, 1140 (1982), enfd. 721 F.2d
187 (7th Cir. 1983).
4 The Respondent excepts to the judge’s finding that the Union did
not waive its right to bargain over the definition of the unit. The excep-
tion is meritless because a bargaining-waiver defense is inapplicable in
this context. “‘The Board has never found an exception to an employer's
duty to refrain from unilaterally changing the scope of a unit—again, a
permissive subject of bargaining—based on defenses recognized in cases
dealing with mandatory bargaining subjects.’” Glades Electric Cooper-
ative, Inc., 366 NLRB No. 112, slip op. at 1 fn. 1 (2018) (quoting 1621
Route 22 West Operating Co., LLC d/b/a Somerset Valley Rehabilitation
& Nursing Center, 364 NLRB No. 43, slip op. at 4 (2016), enfd. mem.
725 Fed. Appx. 129 (3d Cir. 2018)).
Although the Respondent does not expressly argue that it had a “sound
arguable basis” in the parties’ collective-bargaining agreement to remove
the pharmacy technicians from the unit, it implies as much when it argues
that the language of the agreement’s recognition clause required their re-
moval. However, the “sound arguable basis” framework is inapplicable
in this context as a matter of law. The Respondent modified the scope of
bargaining agreement covering its employees. We shall
also order the Respondent to make the pharmacy techni-
cians whole for any loss of earnings and other benefits suf-
fered as a result of the Respondent’s unlawful actions. The
make-whole remedy shall be computed in accordance
with Ogle Protection Service, 183 NLRB 682 (1970),
enfd. 444 F.2d 502 (6th Cir. 1971), with interest at the rate
prescribed in New Horizons, 283 NLRB 1173 (1987),
compounded daily as prescribed in Kentucky River Medi-
cal Center, 356 NLRB 6 (2010). We shall also require the
Respondent to compensate affected employees for the ad-
verse tax consequences, if any, of receiving lump-sum
backpay awards, and to file with the Regional Director for
Region 7, within 21 days of the date the amount of back-
pay is fixed, either by agreement or Board order, a report
allocating the backpay awards to the appropriate calendar
years for each employee. AdvoServ of New Jersey, Inc.,
363 NLRB No. 143 (2016). Finally, having affirmed the
judge’s finding that the Respondent failed to deduct and
remit dues to the Union as required by the parties’ collec-
tive-bargaining agreement, we shall order the Respondent
to reimburse the Union for any dues that it failed to deduct
from wages and remit to the Union on behalf of employees
who had executed valid checkoff authorizations from Oc-
tober 1, 2015, until the collective-bargaining agreement
expired on June 30, 2018,5 with interest at the rate pre-
scribed in New Horizons, supra, compounded daily as pre-
scribed in Kentucky River Medical Center, supra, and
without recouping the money owed for past dues from
those employees.
ORDER
The National Labor Relations Board orders that the Re-
spondent, Trinity Health—Michigan d/b/a St. Joseph
the unit itself, a change that is fundamentally distinguishable from mod-
ifying unit employees’ terms and conditions of employment under the
contract. An employer cannot change the scope of the unit without the
union’s consent even if it can plausibly argue that it has a sound arguable
basis in the language of the contract for doing so. See, e.g., Dixie Electric
Membership Corp. v. NLRB, 814 F.3d 752, 755 (5th Cir. 2016) (“[T]he
Board has . . . long held that the scope of a unit, once established, cannot
be unilaterally modified while a contract is in effect.”) (citing Arizona
Electric Power Cooperative, Inc., 250 NLRB 1132 (1980)).
5 In accord with the Board's holding in Valley Hospital Medical Cen-
ter, Inc. d/b/a Valley Hospital Medical Center, 368 NLRB No. 139
(2019), the Respondent's dues-reimbursement obligation under the par-
ties’ collective-bargaining agreement terminated as of the expiration of
the agreement. So far as the record before us shows, that agreement ex-
pired June 30, 2018, and therefore the dues-reimbursement remedy we
order ends as of that date. We recognize, of course, that the parties might
have extended that agreement and/or entered into a successor agreement
containing a dues-checkoff provision. If so, the Respondent’s dues-re-
mittance obligations after June 30, 2018, are governed by the terms of
that agreement or those agreements and Valley Hospital Medical Center,
supra, not by the order in this case.
TRINITY HEALTH—MICHIGAN D/B/A ST. JOSEPH MERCY OAKLAND HOSPITAL 3
Mercy Oakland Hospital, Pontiac, Michigan, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Withdrawing recognition from Council 25, Michi-
gan American Federation of State, County, and Municipal
Employees, AFL–CIO (the Union) as the exclusive col-
lective-bargaining representative of the Respondent’s
pharmacy technicians.
(b) Unilaterally removing the classification of phar-
macy technicians and the work performed by those em-
ployees from the bargaining unit without the consent of
the Union or a Board order.
(c) Refusing or failing to apply the terms and conditions
of its existing collective-bargaining agreement with the
Union to employees in the bargaining unit, including the
affected pharmacy technicians.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Recognize the Union as the exclusive collective-
bargaining representative of the Respondent’s pharmacy
technicians.
(b) Rescind the removal of the pharmacy technicians
from the bargaining unit that was implemented on October
1, 2015, without the Union’s consent.
(c) Apply the terms of the existing collective-bargain-
ing agreement to the pharmacy technicians.
(d) Make the pharmacy technicians whole for any loss
of earnings and other benefits suffered as a result of its
unlawful actions, in the manner set forth in the remedy
section of the judge’s decision as amended in this deci-
sion.
(e) Compensate the affected employees for the adverse
tax consequences, if any, of receiving lump-sum backpay
awards, and file with the Regional Director for Region 7,
within 21 days of the date the amount of backpay is fixed,
either by agreement or Board order, a report allocating the
backpay awards to the appropriate calendar years for each
employee.
(f) Reimburse the Union for all dues that, following the
unlawful withdrawal of recognition, it failed to deduct and
remit to the Union prior to June 30, 2018, pursuant to the
dues-checkoff provision of the collective-bargaining
6 If the facility involved in these proceedings is open and staffed by a
substantial complement of employees, the notices must be posted within
14 days after service by the Region. If the facility involved in these pro-
ceedings is closed due to the Coronavirus Disease 2019 (COVID-19)
pandemic, the notices must be posted within 14 days after the facility
reopens and a substantial complement of employees have returned to
work, and the notices may not be posted until a substantial complement
of employees have returned to work. Any delay in the physical posting
agreement expiring by its terms on that date, in the manner
prescribed in the amended remedy section of this decision.
(g) 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 an electronic
copy of such records if stored in electronic form, neces-
sary to analyze the amount of backpay due under the terms
of this Order.
(h) Post at its Pontiac, Michigan facility copies of the
attached notice marked “Appendix.”6 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 7, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily 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. The Re-
spondent shall take reasonable steps to ensure that the no-
tices are not altered, defaced, or covered by any other ma-
terial. 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 current employees and former employees em-
ployed by the Respondent at any time since October 1,
2015.
(i) Within 21 days after service by the Region, file with
the Regional Director for Region 7 a sworn certification
of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to com-
ply.
Dated, Washington, D.C. June 18, 2020
______________________________________
John F. Ring, Chairman
______________________________________
Marvin E. Kaplan, Member
of paper notices also applies to the electronic distribution of the notice if
the Respondent customarily communicates with its employees by elec-
tronic means. 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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
________________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
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 vi-
olated 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 ac-
tivities.
WE WILL NOT withdraw recognition from Council 25,
Michigan American Federation of State, County, and Mu-
nicipal Employees, AFL–CIO (the Union) as the exclusive
collective-bargaining representative of the pharmacy tech-
nicians.
WE WILL NOT unilaterally remove the classification of
pharmacy technicians and the work performed by those
employees from the bargaining unit without the consent of
the Union or a Board order.
WE WILL NOT refuse or fail to apply the terms and con-
ditions of our existing collective-bargaining agreement
with the Union to employees in the bargaining unit, in-
cluding the pharmacy technicians.
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 recognize the Union as the exclusive collec-
tive-bargaining representative of the pharmacy techni-
cians.
WE WILL rescind the removal of the pharmacy techni-
cians from the bargaining unit that was implemented on
October 1, 2015, without the Union’s consent.
WE WILL apply the terms of the existing collective-bar-
gaining agreement to the pharmacy technicians.
WE WILL make the pharmacy technicians whole for any
loss of earnings and other benefits suffered as a result of
our unlawful actions, with interest.
WE WILL compensate affected employees for the ad-
verse tax consequences, if any, of receiving lump-sum
backpay awards, and WE WILL file with the Regional Di-
rector for Region 7, within 21 days of the date the amount
of backpay is fixed, either by agreement or Board order, a
report allocating the backpay awards to the appropriate
calendar years for each employee.
WE WILL reimburse the Union for all dues that, follow-
ing our unlawful withdrawal of recognition, we failed to
deduct and remit to the Union from October 1, 2015, until
June 30, 2018, pursuant to the dues-checkoff provision of
our 2014–2018 collective-bargaining agreement with the
Union.
TRINITY HEALTH-MICHIGAN D/B/A ST.
JOSEPH MERCY OAKLAND HOSPITAL
The Board’s decision can be found at
www.nlrb.gov/case/07-CA-161375 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations
Board, 1015 Half Street, S.E., Washington, D.C. 20570, or
by calling (202) 273-1940.
Robert Buzaitis, Esq., for the General Counsel.
Daniel J. Bretz, Esq. and Brian D. Shekell, Esq., of Detroit,
Michigan, for the Respondent.
Robert D. Fetter, Esq., of Detroit, Michigan, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
CHRISTINE E. DIBBLE, Administrative Law Judge. This case
was tried in Detroit, Michigan, on July16, 2016. The original
charge in this case was filed by Michigan Council 25 and its af-
filiated Local 1820, American Federation of State, County, and
Municipal Employees (AFSCME), AFL–CIO (the Union/Charg-
ing Party) on October 5, 2015. On January 29, 2016, the Na-
tional Labor Relations Board (NLRB/the Board) for Region 7
issued the complaint and notice of hearing. Trinity Health-Mich-
igan d/b/a St. Joseph Mercy Oakland Hospital (Respondent) filed
a timely response.
The complaint alleges that about September 2015,
TRINITY HEALTH—MICHIGAN D/B/A ST. JOSEPH MERCY OAKLAND HOSPITAL 5
Respondent failed to continue all the terms and conditions of the
most recent collective-bargaining agreement (CBA) by unilater-
ally removing the classification of pharmacy technicians and the
work performed by those employees from the recognized bar-
gaining unit in violation of Section 8(a)(1) and (5) of the Act.1
After the trial, the General Counsel, Respondent, and the
Charging Party filed briefs, which I have read and considered.2
Based on those briefs and the entire record, including the testi-
mony of the witnesses and my observation of their demeanor, I
make the following
FINDINGS OF FACT
Jurisdiction
Respondent, a Michigan corporation with an office and place
of business in Pontiac, Michigan (Pontiac facility), is engaged in
the operation of an acute care hospital. During a representative
1-year period, Respondent derived gross revenues in excess of
$250,000 and purchased and received, at its Pontiac, Michigan
facility goods and services valued in excess of $5000 directly
from points located outside the State of Michigan. Accordingly,
I find, as Respondent admits, that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the
Act, and has been a healthcare institution within the meaning of
Section 2(14) of the Act.
I also find, as Respondent also admits, that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
Overview of Respondent’s Operation
Respondent, a teaching community hospital, is part of the
Trinity Health System (THS). THS is the second largest Catho-
lic healthcare system in the United States with more than 89 hos-
pitals throughout the nation. Respondent has approximately
2800 employees at its facility St. Joseph Mercy Oakland Hospi-
tal (SJMOH) in Pontiac, Michigan. Within SJMOH, Respondent
employs 29 pharmacy technicians who work in pharmacy ser-
vices. Pharmacy Services has both a retail and inpatient opera-
tion. There are five pharmacy technicians working on the retail
side at SJMOH. These technicians perform duties similar to
those in a retail drugstore such as CVS or Walgreens. Respond-
ent’s retail pharmacy technicians prepare, bottle, and label med-
ication doses, assist walk-in customers, and help pharmacists get
doses from stocked medications. SJMOH employs 24 pharmacy
technicians in its inpatient pharmacy division. Inpatient phar-
macy technicians have five primary functions: (1) compounding3
drugs in the hospital IV room; (2) deliver medications to various
areas of the hospital; (3) prepare medications at the pharmacy
counter for distribution throughout the hospital; (4) stock medi-
cations in the Pyxis machine;4 and (5) “handling” the controlled
substance vault.
The following management officials, employed by
1 The most recent CBA is effective from October 4, 2014, through
June 30, 2018.
2 General Counsel’s exhibits, Respondent’s exhibits, and Charging
Party’s exhibits are identified as “GC Exh.,” “R. Exh.” and “CP Exh.,”
respectively. Joint exhibits are identified as “Jt. Exh.” The hearing tran-
script is identified as “Tr.” The General Counsel, Respondent, and
Respondent, are relevant to the complaint at issue: Ane J.
McNeil (McNeil), vice president of resources administration;
Virginia Chambo (Chambo), human resources business partner;
and Kathleen Gaither (Gaither), director of pharmacy services
east market. In her role as vice president resources administra-
tion, McNeil, among other duties, works to resolve labor man-
agement issues, assists in guiding grievances through to resolu-
tion, and engages in contract negotiations between Respondent
and the Union. Chambo, among other tasks, provides support to
Respondent’s various departments on human resources’ policy
interpretations, policy procedures, and contracts. As director of
pharmacy services, Gaither oversees the entire operation for
pharmacy services at SJMOH and St. Mary Mercy Hospital in
Livonia, Michigan. Daniel J. Bretz (Bretz), counsel for Re-
spondent, represented its interests before this tribunal and also
played a role in several meetings held with union officials about
the impact that the licensing requirement had on pharmacy tech-
nicians’ ability to remain in the bargaining unit.
Labor, Management, and the CBA
Respondent and the Union have had a longstanding collective-
bargaining relationship, culminating in successive bargaining
agreements, the last of which is effective, by its terms, from Oc-
tober 4, 2014, to June 30, 2018, in the following bargaining unit
originally certified as appropriate by the Board (GC Exhs. 10;
Tr. 135):
All nonprofessional associates, including technical associates,
carpenters, plumbers, electricians, boiler operators, painters,
maintenance mechanics, technicians, health unit coordinators,
clerks in the following departments: medical records, nursing
services, laboratory, communications, buildings and grounds,
physical therapy, radiology, food service and environmental
services, and/or all classifications set forth in Article XIX, job
titles and pay grades, but excluding public safety officers, reg-
istered associates, licensed associates, professional associates,
clerical associates reporting to the business office, and all other
clerical associates not specifically included herein.
The above recognition clause has been part of successive collec-
tive-bargaining agreements and has been unchanged since about
1971. Articles XVIII and XIX list, among other job titles and
pay grades, that of “Pharmacy Tech In Pt Cert” and “Pharmacy
Tech Out Pt Cert” at pay grade 11B. (GC Exh. 10.) The CBA’s
recognition clause excludes SJMO’s approximately 1100 li-
censed employees (e.g., physicians, registered nurses, speech
pathologists, radiology technicians). Although boiler operators
and electricians are licensed positions, they were grandfathered
into the bargaining unit because the positions were required to
be licensed by state law, since 1965, before the initial CBA was
negotiated.
Charging Party posthearing briefs are identified as “GC Br.,” “R. Br.,”
and “CP Br.”, respectively.
3 Compounding is a method of mixing or altering the ingredients of a
drug to “create a medication tailored to the needs of an individual pa-
tient.” www.fda.gov/drugs.
4 The PYXIS machine automatically dispenses drugs for patients after
a security code is entered by authorized hospital personnel.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
At all material times, the Union has been the exclusive collec-
tive-bargaining representative of the unit described in the CBA’s
recognition clause. The Union represents about 620 of Respond-
ent’s 2800 SJMHO employees. During the period at issue, Car-
los Bass (Bass), a supply chain technician, has been president of
Local 1820 for at least the past 15 years. In his role as the pres-
ident, Bass oversees the daily operation of local 1820, ensures
Respondent complies with the CBA, and represents the bargain-
ing unit members. Octave LeDuff (LeDuff) is vice president of
Local 1820, Council 25. Toni Jordan (Jordan) works for Re-
spondent as a patient support technician; and is the Union’s sec-
retary, treasurer, and committee person. In her union position,
Jordan takes notes at union meetings, maintains their “books,”
files grievances on behalf of the Union, and attends special con-
ferences.5 Mel Brabson (Brabson) and Jimmy Hearns (Hearns)
are union representatives from Council 25.
Change in licensing requirement for pharmacy technicians
On September 23, 2014, Public Act 285 of 2014 (PA 285) was
signed into law by the Governor of Michigan. PA 285 requires,
among other acts, that pharmacy technicians practicing in Mich-
igan obtain and possess a license from the Michigan Board of
Pharmacy.6 PA 285, section 17711 (1) reads,
A person shall not engage in the practice of pharmacy or serve
as a pharmacy technician unless licensed or otherwise author-
ized by this article.
(GC Exh. 2.) The effective date of PA 285 was initially Decem-
ber 22, 2014. However, the date for the licensing requirement
was postponed twice to June 30, 2015, and ultimately imple-
mented on October 1, 2015.
Meetings between Labor and Management on PA 285
On October 20, 2014, Chambo and McNeil from Respond-
ent’s human resources department invited Jordan, Bass, and
LeDuff to meet and discuss the new law requiring the licensure
of pharmacy technicians. Bass and LeDuff were unable to at-
tend. Consequently, on October 20, 2014, Chambo and McNeil
met with Jordan and informed her that because PA 285 was
passed by the Michigan legislature, the soon to be licensed phar-
macy technician position would be excluded from the bargaining
unit pursuant to the CBA’s recognition clause.7 Jordan was also
provided with a copy of the applicable statute. After the meeting,
Jordan sent an email to McNeil requesting a special conference
to further discuss the impact of the licensing requirement on the
pharmacy technicians. Chambo, Ben Carravallah
5 Special conference is defined by Respondent as a meeting between
management and union leadership to discuss topics of interest, share in-
formation, and reach resolution on disputed employment issues. (Tr.
154–155.)
6 Michigan Licensing and Regulatory Affairs (LARA) is the state
agency that regulates and enforces laws with respect to pharmacy and
other applicable professions in Michigan. LARA also uses and enforces
the United States Pharmacopeia (UPS) 797 standards for pharmacologi-
cal practice in Michigan.
7 Although he did not attend the October 20, 2014 meeting, Bass tes-
tified that Jordan was not told in the meeting that the pharmacy techni-
cians would be removed from the bargaining unit as a result of the
(Carravallah),8 Bass, Brabson, Hearns, and Bryan were also cop-
ied on the email.9 (R. Exh. 3.)
Respondent agreed to a special conference and on November
7, 2014, a meeting was held with Bass, Jordan, Hearns, Brabson,
Bretz, McNeil, Chambo, and Carravallah. (R. Exh. 4.).10 During
the meeting, Respondent reiterated that because of the mandate
in PA 285 that pharmacy technicians become licensed, they
would be removed from the bargaining unit pursuant to the
CBA’s recognition clause which excludes licensed associates
from the unit. The Union insisted that the pharmacy technicians
should remain in the union after becoming licensed but Respond-
ent refused noting it was contrary to the CBA’s recognition
clause. The parties could not resolve the issue so Hearns re-
quested that Respondent agree to an expedited arbitration of the
matter. Respondent agreed to allow the grievance to skip steps
1 and 2 of the grievance process and be heard at the step 3 griev-
ance level. Brabson memorialized this agreement in a letter he
sent to McNeil dated November 14, 2014, in which he noted the
expedited arbitration schedule; and Respondent’s position that
when the pharmacy technicians became licensed, they would be
removed from the bargaining unit in accordance with Respond-
ent’s interpretation of the CBA’s recognition clause. (R. Exh. 7.)
On December 19, 2014, the Union and Respondent held an-
other special conference to continue the discussion about the im-
pact of PA 285 on the pharmacy technicians and other agenda
items. During the meeting, Respondent informed the Union that
the State of Michigan had delayed implementation of the licens-
ing requirement for pharmacy technicians to June 2015.
Union Files Grievance on March 10, 2015
In accordance with the agreement between the parties allow-
ing for an expedited arbitration schedule, on March 10, 2015, the
Union filed a grievance at the step 3 level. The grievance alleged
that Respondent violated article I, section 1 and article XVIII of
the CBA (including any applicable state and federal laws) be-
cause “[a]ssociates at all cost would like to remain in the current
bargaining unit. The associates have been covered under
A.F.S.C.M.E. local 1820 since 1971.” (R. Exh. 12.) The Union
also requested that Respondent “cease and desist the removal of
techs from the bargaining unit.” Id.
On April 9, 2015, Chambo and Carravallah met with Bass to
discuss the grievance filed by the Union on March 10, 2015.
Chambo provided undisputed testimony that Bass did not present
arguments or support for the allegations in the grievance; and
demanded only that she respond to the grievance. By written
response dated May 4, 2015, Chambo denied the grievance by
licensing requirement. However, Jordan, who did attend the meeting,
admitted that Respondent told her at the October 20 meeting that upon
receiving their licenses the pharmacy technicians would be excluded
from the bargaining unit pursuant to art. I of the CBA. (Tr. 28.) I credit
Jordan’s testimony on this point.
8 Carravallah is employed by Respondent as a business partner in the
human resources department.
9 The evidence does not indicate whether “Bryan” is a first name or
surname, nor the persons job title.
10 Alvin Bowman, human resources business partner, was initially
scheduled to attend the special conference but for unknown reasons was
not present.
TRINITY HEALTH—MICHIGAN D/B/A ST. JOSEPH MERCY OAKLAND HOSPITAL 7
noting in part,
Based on the requirements of Michigan law, effective June 30,
2015 the job descriptions and titles for non-licensed “Pharmacy
Technician In-Patient” and non-licensed “Pharmacy Techni-
cian Out-Patient” will be eliminated. In advance of that date,
the Hospital will post and fill the role of “Licensed Pharmacy
Technician Specialist” which complies with the Michigan li-
censing law. Under the plain language of the collective bar-
gaining agreement, the Licensed Pharmacy Technician Spe-
cialist role will not be included in the bargaining unit. The
grievance is denied.”
(R. Exh. 13.) By email date May 6, 2015, Jordan notified
McNeil of the Union’s intent to arbitrate the grievance. She cop-
ied Bass, Chambo, and Carravallah on the email. (R. Exh. 9.)
Despite its notice of intent to arbitrate, there is no evidence that
the Union pursued the grievance in arbitration.
Continued Discussions Between Labor, Management, and
Employees about PA 285
In June 2015, Respondent engaged in talks with the Union
about the impact of the licensure requirement on the pharmacy
technicians’ ability to remain in the unit. At some point in the
discussions, Respondent offered to allow the pharmacy techni-
cians to remain in the unit if the Union consented to allowing
Respondent to outsource the medical transcriptionist position. In
August or September 2015, the Union rejected Respondent’s
proposal. (Tr. 49.)11
In November 2014, December 23, 2014, June 13and Septem-
ber 15, 2015, Respondent created a “Pharmacy Technician Li-
censure—Frequently Asked Questions” sheet (FAQ sheet) for
distribution to the pharmacy technicians. The November and De-
cember 2014, versions do not mention that post licensure the po-
sitions would be nonunion, nor that there would be a change in
the job title. In the June 13 and September 15, 2015, FAQ sheets
pharmacy technicians were first notified that the “Hospital will
utilize the following titles as non-union colleagues.” (R. Exh.
11.)
On September 17, 2015, Respondent held two meetings with
the pharmacy technicians to inform them that due to the new li-
censure mandate, if they wanted to remain in their positions, they
would have to become licensed, reapply for their positions, and
be removed from the bargaining unit.12 Every pharmacy techni-
cian became licensed, reapplied, and was rehired for their posi-
tion. Through witness testimony, the parties produced compet-
ing views on whether the pharmacy technicians experienced sig-
nificant change in their job duties after October 1, 2015, the
11 Respondent objected to this testimony by arguing that it was settle-
ment discussions and therefore shouldn’t be allowed. The General Coun-
sel disputes the testimony was a part of settlement discussions and argues
instead the discussions were part of the contract negotiations. Conse-
quently, the General Counsel contends that the testimony is necessary to
counter Respondent’s defense that its position never changed on remov-
ing the licensed pharmacy technicians from the bargaining unit. Based
on the parties’ oral arguments at the hearing, I allowed the testimony
after agreeing with the General Counsel and Charging Party and deter-
mining that the discussion at issue was: (1) part of a bargaining proposal;
effective date of the licensure requirement.
The General Counsel argues that despite being licensed, the
pharmacy technicians did not experience any substantive
changes in their duties. (GC Br. 6.) The Union also contends that
inpatient pharmacy technicians had no change in their duties,
while retail side pharmacy technicians saw only one tangible
change in to their job functions, the implementation of a “perpet-
ual inventory system.” Moreover, the Union noted “there is no
evidence how this new inventory system relates to the license
requirement in anyway (sic); it would have been implemented
irrespective of the license requirement. It was not implemented
until about three months prior to the hearing, or six months after
the employer removing the pharmacy techs from the unit.” (CP
Br. 6.)
Respondent insists that the licensure required significant
changes in the pharmacy technicians’ job duties. In response to
questions on how the pharmacy technician duties have changed
postlicensure, Gaither testified that job requirements that are
now set by the State of Michigan have resulted in the following
“significant changes” in the licensed pharmacy technician job:
conduct investigations into controlled drug discrepancies; utili-
zation of a perpetual inventory system (PYXIS); required re-
training and recertification measures in compliance with USP
797 standards; more stringent safety protocols for donning cloth-
ing and equipment; conduct sterile fingertip testing; revised
cleaning techniques of the IV rooms; and pass a criminal back-
ground check.
I find, however, that the evidence does not show there have
been significant changes to the licensed pharmacy technicians’
job duties. The evidence established that prior to the licensure
mandate, only one pharmacy technician conducted investiga-
tions into controlled drug discrepancies; and that continued even
after the licensing requirement became effective. Mindy Ma-
zurek (Mazurek) provided undisputed testimony that there is a
specific pharmacy technician that performs narcotics diversion
investigation and the same person continued performing that
function after the licensure requirement became effective. She
also credibly testified that as a licensed pharmacy technician her
compounding duties, delivery of medications, PYXIS duties, and
steps for handling narcotics inventory remained the same. Phar-
macy Technicians Barbara Harrington (Harrington) and Little
corroborated Mazurek’s testimony that their job duties essen-
tially remained the same after they were licensed. Gaither’s tes-
timony touting the implementation of the PYXIS as a significant
change in the pharmacy technicians’ job duties is in direct con-
trast to the credible testimony of Mazurek, Little, and Harring-
ton. Moreover, the Charging Party correctly notes in its brief
that implementation of the PYXIS would have occurred
and (2) the testimony was proffered to show when the Union had
knowledge of the alleged violation. See also Zurich American Insurance
Co. v. Watts Industries, 417 F.3d 682, 689 (7th Cir. 2005) (quoting Vul-
can Hart Corp. v. NLRB, 718 F.2d 269, 277 (8th Cir. 1983)).
12 Pharmacy technician Jennifer Little (Little) testified that as early as
June 2015, she became aware that her position would require licensure
and she would have to apply for an open licensed pharmacy technician
position. (Tr. 76–79.) She was also aware that the position would result
in her removal from the bargaining unit. (Tr. 79.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
irrespective of the licensure requirement.
Respondent noted that licensed pharmacy technicians have to
undergo retraining and recertification measures to ensure com-
pliance with the USP 797 standards. However, Harrington pro-
vided undisputed testimony that pharmacy technicians have been
required to take continuing education classes for the past 10 or
12 years. (Tr. 218.) In arguing that the job function has changed
significantly for the licensed pharmacy technicians, Respondent
notes that they are required to follow more stringent safety pro-
cedures and cleaning techniques. While this might be true, it is
not a significant change in their actual duties. A license is not
required to implement stricter safety protocols for donning cloth-
ing and cleaning medical equipment for pharmacy technicians or
any other healthcare worker. Last, the requirement that phar-
macy technicians pass a criminal background check does not
change their job duties but rather is a matter of a change in qual-
ification for the position. Last, the evidence is undisputed that
Respondent did not train the newly licensed pharmacy techni-
cians on any alleged new responsibilities.13
Accordingly, I find that the evidence established the pharmacy
technician job duties underwent minimal change after they be-
came licensed pharmacy technicians.
Effective October 1, 2015, the rehired licensed pharmacy
technicians were removed from the unit and Respondent ceased
deducting and remitting union dues for those employees. More-
over, their medical and dental insurance premiums increased to
the nonunion rate in January 2016.
DISCUSSION AND ANALYSIS
Complaint is timely under Section 10(b) of the Act
Prior to addressing the merits of the complaint, I must rule on
Respondent’s request that the complaint be dismissed because it
is untimely.
Respondent argues that the unfair labor practice charge in this
matter is untimely because it is not based on a “purported viola-
tion that occurred on or after April 5, 2015.” (R. Br. 16.)
Specifically, Respondent contends that the Union was aware
as early as October 20, 2014, that the State of Michigan passed a
law requiring licensure of the pharmacy technician position, thus
subjecting it to exclusion from the bargaining unit. (R. Br. 16—
17.) According to Respondent, “The Union was advised begin-
ning on October 20, 2014 that the Hospital had to follow state
law by requiring Pharmacy Technicians to obtain a license and
that the CBA’s express terms excluded the position from the unit.
This notice was clear and unequivocal.” (R. Br. 19.)
The General Counsel counters that the Board has consistently
held that it is “the date of the allegedly unlawful act rather than
a proposed effective date that will trigger the sixth-month pe-
riod.” (R. Br. 9, quoting Postal Service Marina Mail Processing
Center, 271 NLRB 397, 400 (1984)). Consequently, the General
Counsel notes that the acts at issue did not occur until late Sep-
tember 2015 when Respondent “rehired” the affected employees
into the licensed pharmacy technician classification, removed
them from the bargaining unit, and on October 1, 2015, ceased
13 While Gaither testified that the new standards requires licensed
pharmacy technicians to take continuing education classes, Harrington
deducting their union dues. Id.
Section 10(b) of the Act disallows the issuance of complaints
“based upon any unfair labor practice occurring more than six
months prior to the filing of the charge with the Board and the
service of a copy thereof upon” the charged party. 29 U.S.C.
§160(b). The 10(b) period begins to run when the aggrieved
party has “clear and unequivocal notice of a violation.” Leach
Corp., 312 NLRB 990, 991–992 (1993), enfd. 54 F.3d 802 (D.C.
Cir. 1995). The party raising the 10(b) affirmative defense has
the burden of proving the aggrieved party had actual or construc-
tive notice of the violation. See, e.g., Castle Hill Health Care
Center, 355 NLRB 1156, 1191 (2010); see also St. Barnabas
Medical Center, 343 NLRB 1125, 1127 (2004) (knowledge is
imputed when party first has “knowledge of the facts necessary
to support a ripe unfair labor practice.”). Moreover, the statute of
limitations does not begin to run until the unfair labor practice
occurs. Leach Corp., 312 NLRB 990, 991 (1993), quoting NLRB
v. Al Bryant, Inc., 711 F.2d 543, 547 (3d Cir. 1983).
Based on the facts of this complaint and well-settled case law,
it is clear, that late September 2015 or October 1, 2015, is when
the unfair labor practice occurred. October 1, 2015, is the date
that the pharmacy technicians were excluded from the bargain-
ing unit; and the point at which Respondent discontinued deduct-
ing their union dues. The charge in this case was filed 4 days
later, on October 5, 2015, well within the 6-month time period
established in Section 10(b) of the Act.
Accordingly, I find that Respondents argument that the com-
plaint at issue it untimely is without merit.
8(A)(1) AND (5) VIOLATION OF THE ACT
The good-faith standard is used by the courts and the Board to
determine if the parties have met their obligation to bargain un-
der the Act. The Board takes a case-by-case approach in as-
sessing whether parties have met, conferred, and negotiated in
good faith. National Licorice Co. v. NLRB, 309 U.S. 350 (1940)
(the Court adopted the “good faith” standard for an employer’s
conduct); St. George Warehouse, Inc., 349 NLRB 870 (2007)
(the Board reviews the totality of the employer’s conduct in de-
ciding if the employer has satisfied its obligation to confer in
good faith). The duty to bargain, however, only arises if the
changes are “material, substantial and significant.” Alamo Ce-
ment Co., 281 NLRB 737, 738 (1986); Flambeau Airmold Corp.,
334 NLRB 165, 171 (2001). The General Counsel bears the bur-
den of establishing this element of the prima facie case. North
Star Steel Co., 347 NLRB 1364, 1367 (2006).
An employer may not change the terms and conditions of em-
ployment of represented employees without providing their rep-
resentative with prior notice and an opportunity to bargain over
such changes. See NLRB v. Katz, 369 U.S. 736, 747 (1962). In
order to find that an employer made unilateral changes to an em-
ployee benefit in violation of the Act, it must be shown that (1)
material changes were made to the employees’ terms and condi-
tions of employment; (2) the changes involved mandatory sub-
jects of bargaining; (3) the employer failed to notify the union of
the proposed changes; and (4) the union did not have an
provided undisputed testimony that she has always taken continuing ed-
ucation classes for the position of pharmacy technician.
TRINITY HEALTH—MICHIGAN D/B/A ST. JOSEPH MERCY OAKLAND HOSPITAL 9
opportunity to bargain with respect to the changes. San Juan
Teachers Assn., 355 NLRB 172, 175 (2010). Alamo Cement Co.,
supra; Flambeau Airmold Corp., supra.
Unilateral Removal of Employees’ Reclassification and
Work are Mandatory Subjects
The General Counsel alleges that Respondent violated Section
8(a)(1) and (5) of the Act when, since about September 2015,
Respondent unilaterally removed the pharmacy technician clas-
sification and the work they performed from the bargaining unit,
thereby by failing and refusing to bargain collectively and in
good faith with the Union. According to the General Counsel,
the evidence establishes that Respondent violated the Act regard-
less of whether Respondent’s action was “an alteration in the
scope of the unit or a transfer of unit work.” citing Mt. Sinai Hos-
pital, 331 NLRB 895, 908 (2000). In support of its argument,
the General Counsel contends: (1) the reclassification of the
pharmacy technician position is a mandatory subject of bargain-
ing; (2) Respondent did not change the pharmacy technicians’
duties after they became licensed; and (3) neither the State of
Michigan licensure mandate, nor the CBA recognition clause,
required Respondent to exclude pharmacy technicians from the
bargaining unit.
Respondent’s counters that there is no violation of Section
8(a)(1) and (5) of the Act because: (1) Respondent is not required
to bargain over whether licensed pharmacy technicians should
be included in the unit because the recognition clause is a per-
missive subject of bargaining; (2) the “clear and unambiguous”
language of the CBA requires exclusion from the unit of “li-
censed associates”; and (3) even assuming the issue is a manda-
tory subject of bargaining, the Union has waived its right to de-
mand bargaining over the definition of the unit because it previ-
ously agreed to the proper scope of the unit.14
In Hill-Rom Co. v. NLRB, 957 F.2d 454, 457 (7th Cir. 1992),
the court acknowledged that there is only a subtle distinction be-
tween a mandatory versus permissive subject of bargaining.
Based on my review of case law, it appears that often the distinc-
tion is so subtle that it is imperceptible to the Board, courts, and
litigants.15 Nonetheless, in Hill-Rom, Co., Inc., the court noted
that possible subjects of collective bargaining fall into three
broad categories: mandatory subjects, permissive subjects, and
illegal subjects.
In Axelson, Inc., 234 NLRB 414, 415 (1978), the Board de-
fined mandatory subjects of bargaining as,
those comprised in the phrase “wages, hours, and other terms
and conditions of employment” as set forth in Section 8(d) of
the Act. While the language is broad, parameters have been es-
tablished, although not quantified. The touchstone is whether
or not the proposed clause sets a term or condition of employ-
ment or regulates the relation between the employer and its
14 In anticipation of the General Counsel relying on Nexstar Broad-
casting, 363 NLRB No. 32 (2015), to support its case, Respondent argues
that it is an inapposite decision. I do not need to address this argument
because, although counsel for the Charging Party mentioned the case in
his brief, the counsel for the General Counsel did not rely on nor cite
Nexstar Broadcasting as part of the theory of the General Counsel’s case.
employees.
See also Fibreboard Paper Products Corp. v. NLRB, 379 U.S.
203, 210, 85 S.Ct. 398, 402, 13 L.Ed.2d 233 (1964); Facet En-
terprises, Inc. v. NLRB, 907 F.2d 963, 975 (10th Cir. 1990). The
court in Hill-Rom Co., Inc., noted that permissive subjects are
“those which fall outside the scope of § 8(d) and cannot be im-
plemented by the employer without union or Board approval”;
and illegal subjects are “those proscribed by federal, or where
appropriately applied, state law.” Id. at 457.
I find that Respondent’s removal of the classification of phar-
macy technicians and the work performed by them is a manda-
tory subject of bargaining because it relates to wages, hours and
other terms and conditions of employment. Wages have been
defined broadly by the courts and the Board. Mission Foods, 350
NLRB 336 (2007) (employer violated the Act by denying struc-
tural wage increase because it is a term and condition of employ-
ment); Laurel Bay Health & Rehabilitation Center, 353 NLRB
232 (2008) (merit increase is a mandatory subject of bargaining);
United Refining Co., 327 NLRB 795 (1999) (change in wage rate
is a mandatory subject of bargaining); NLRB v. Katz, at 746
(merit wage increase is a mandatory subject of bargaining). Re-
spondent acknowledged that reclassifying the pharmacy techni-
cian positions might have an effect on their wages and benefits.
(R. Exh. 11.) Moreover, licensed certified pharmacy technician
Little gave undisputed testimony that the portion she had to pay
for her healthcare and dental premiums increased substantially
because Respondent reclassified her into a nonunion position.
The impacted employees’ salaries and benefits are tied to their
job classifications. Consequently, implementation of unilateral
changes to the pharmacy technicians’ job classifications and
their removal from the bargaining unit significantly impacts the
union’s ability to represent its unit employees in disputes that are
“those most essential of employee concerns—rates of pay,
wages, hours and conditions of employment.” Arizona Portland
Cement Co., 302 NLRB 36, 44 (1991). See also Fry Foods, Inc.,
241 NLRB 76, 88 (1979) (“reclassification of a position from a
bargaining unit job to a nonunit job is a mandatory subject of
collective bargaining if the reclassification has an impact on bar-
gaining unit work.”)
Second, I agree with the General Counsel that neither PA 285
nor the CBA recognition clause requires Respondent to exclude
the licensed pharmacy technicians from the bargaining unit. De-
spite Respondent’s contention that the language of the CBA
clearly and unambiguously forces licensed pharmacy technicians
out of the unit, I find this argument is not supported by the facts.
It is undisputed that the CBA excludes generally “licensed asso-
ciates” from the bargaining unit. However, the language does
not specifically require the removal of licensed pharmacy tech-
nicians. The job pharmacy technician describes a specific posi-
tion known to the parties. Adding a license requirement to the
15 In Hill-Rom, Co., the dissent aptly wrote, “Cases, including deci-
sions by our superiors in the judicial hierarchy, establish that jurisdic-
tional questions are permissive subjects of bargaining and that assign-
ment disputes are mandatory subjects of bargaining. Neither the NLRB
nor our court can do anything about this. Yet when the same facts can be
put in either category with equal plausibility, the distinction collapses.”
Id., at 460.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
pharmacy technician position does not change anything in terms
of the inclusion or exclusion of those employees from the bar-
gaining unit. It just means they have a license. Moreover, Re-
spondent’s focus on the state mandated licensing requirement is
misplaced because state law is not controlling in Board matters.
I also find that Respondent did not significantly alter the phar-
macy technicians’ duties after they became licensed. Several of
the job changes that Gaither identified are either anticipated or
did not occur until months after the pharmacy technicians were
licensed and removed from the bargaining unit. She also testi-
fied that the pharmacy technicians would be able to perform the
anticipated future responsibilities because they would occur un-
der a different job classification. (Tr. 104.) Moreover, Gaither
admitted that “the job description is always a work in progress”
and noted that these were changes management was “looking
at.”
Gaither also acknowledged that the delivery pharmacy techni-
cians performed the same job functions after the licensure re-
quirement became effective. (Tr. 110.) Her contention that the
PYXIS duties involved a significant change for to the licensed
pharmacy technician duties is likewise discounted because the
pharmacy technician overseeing the narcotic vault essentially
continued to perform the same functions as before he/she was
licensed, except he/she also investigates any discrepancies that
arise with PYXIS. However, there is no evidence that PA 285
mandated that a licensed pharmacy technician had to perform
this function.
The differences in the added duties articulated by Respondent
are not significant and insufficient to counter my finding that the
job functions of the pharmacy technicians’ pre and postlicensure
were substantially the same. This finding is reinforced by the
fact that Respondent saw no need to train the newly licensed
pharmacy technicians on any new responsibilities.
Also, undermining Respondent’s argument is the fact that Re-
spondent has allowed their boiler operators and electricians to
remain in the bargaining unit despite being licensed. Respondent
contends the circumstances surrounding those positions justifies
allowing them to remain in the unit despite being licensed posi-
tions because they were explicitly included in the recognition
clause of the CBA; and since 1965 the positions have been re-
quired to be licensed by state law which was before the initial
CBA was negotiated. However, this argument is irrelevant. The
focus should be on whether the duties of the licensed pharmacy
technicians are sufficiently dissimilar to the bargaining unit po-
sitions. See Bay Shipbuilding Corp., 263 NLRB 1133, 1140
(1982), enfd. 721 F.2d 187 (7th Cir. 1983) (“When, as here, an
employer attempts to justify removing a particular group or
groups from the coverage of a collective-barganing agreement or
relationship, it has the burden of showing that the group is suffi-
ciently dissimilar from the remainder of the unit so as to warrant
that removal”). Moreover, as previously discussed, it is clear
that the pharmacy technician position was substantially un-
changed after it became a licensed position. There was credible
testimony from three current licensed pharmacy technicians that
their duties were substantially the same after becoming licensed.
The Board has consistently held that the “question of whether a
job classification is included in the unit is based on the job con-
tent and not the job title.” Bay Shipbuilding Corp. at 834; Texaco
Port Arthur Works Employees Federal Credit Union, 315 NLRB
828, 830 (1994).
The Union Did Not Waive its Right to Bargain
The Respondent contends that the Union waived its right to
bargain because the “Union bargained over, and agreed to, the
definition of the unit which expressly excludes licensed associ-
ates.” (R. Br. 20.)
An employer to a contractual agreement may unilaterally take
certain actions that result in changes to the terms and conditions
of employment if there has been a “clear and unmistakable”
waiver of the Union’s right to bargain over the changes. Pavil-
ions at Forrestal, 353 NLRB 540 (2008) (impasse irrelevant
where employer unilaterally implemented new health insurance
plan without providing union information, notice and oppor-
tunity to bargain concerning new plan); Laurel Bay Health &
Rehabilitation Center, 353 NLRB 232 (2008) (employer prema-
turely declared impasse and unilaterally implemented changes in
health insurance and other benefits where union requested and
employer agreed to schedule subsequent bargaining session, un-
ion indicated willingness to “look at other plans,” and union
stated that it would prepare counterproposal). The “clear and
unmistakable” standard requires that the contract language is
specific, or it must be shown that the subject alleged to have been
waived was fully discussed by the parties and the party alleged
to have waived its rights did so explicitly and with the full intent
to release its interest in the matter. Allison Corp., 330 NLRB
1363, 1365 (2000); Metropolitan Edison Co. v. NLRB, 460 U.S.
693, 708 (1983).
As previously discussed, I do not find that the CBA’s lan-
guage unambiguously and explicitly excludes licensed pharmacy
technicians from the bargaining unit. While the CBA does ex-
plicitly exclude “licensed associates,” there is no mention of the
exclusion of licensed pharmacy technicians. Moreover, the in-
clusion in the bargaining unit of licensed boiler operators and
licensed electricians injects a degree of ambiguity into the recog-
nition clause’s definition of “licensed associate.” Consequently,
I find that the evidence is insufficient to find that the Union ex-
plicitly waived its rights with the full intent to release its interest
in the matter.
Accordingly, I find that Respondent, by unilaterally removing
the classification of pharmacy technicians and the work per-
formed by those employees from the bargaining unit, violated
Section 8(a)(1) and (5) of the Act.
CONCLUSIONS OF LAW
1. By unilaterally removing the classification of pharmacy
technicians and the work performed by those employees from
the recognized bargaining unit, Respondent has failed to con-
tinue all the terms and conditions of the collective-bargaining
agreement and has been failing and refusing to bargain collec-
tively and in good faith in violation of Section 8(a)(1) and (5) of
the Act.
2. The above violations constitute unfair labor practices that
affect interstate commerce within the meaning of the Act.
3. Respondent has not otherwise violated the Act.
REMEDY
Having found that Respondent committed the unfair labor
TRINITY HEALTH—MICHIGAN D/B/A ST. JOSEPH MERCY OAKLAND HOSPITAL 11
practices set forth above, I shall order it to cease and desist from
its unlawful conduct and to post an appropriate notice and take
other affirmative action designed to effectuate the purposes of
the Act. More specifically, Respondent will be ordered to restore
the status quo ante with respect to the unit status of the pharmacy
technicians and make the affected employees whole for any loss
of earnings and benefits they may have suffered as a result of
Respondents actions. Respondent shall also be ordered to remit
to the Charging Party the dues that should have been checked-
off pursuant to dues check-off authorizations, with interest in ac-
cordance with Board policy. Any computation of monies owed
to such employees shall be made in accordance with Ogle Pro-
tection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th
Cir. 1971).
On these findings of fact and conclusions of law, and on the
entire record herein, I issue the following recommended16
ORDER
The Respondent, Trinity Health-Michigan d/b/a St. Joseph
Mercy Oakland Hospital, Pontiac, Michigan, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Modifying an existing contractual bargaining unit without
the consent of the Union.
(b) Refusing to bargain with, or withdrawing recognition
from, the Union as the exclusive bargaining representative of the
affected employees.
(c) Refusing or failing to apply the terms and conditions of its
existing collective-bargaining agreement with the Union.
(d) Unilaterally removing the classification of pharmacy tech-
nicians and the work performed by those employees from the
bargaining unit.
(e) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of right guaranteed them
in Section 7 of the Act.
2. Take the following affirmative action necessary to effectu-
ate the policies of the Act.
(a) Within 14 days from a request, bargain collectively with
the Union as the exclusive bargaining representative of the phar-
macy technicians employed by Respondent.
(b) Apply the terms of the existing collective-bargaining
agreement to the affected employees.
(c) Immediately restore the status quo ante with respect to the
unit status of the pharmacy technicians and make the affected
employees whole for any loss of earnings and benefits they may
have suffered as a result of Respondents actions. Respondent
shall also be ordered to remit to the Charging Party the dues that
should have been checked-off pursuant to dues check-off author-
izations, with interest in accordance with Board policy. Any
computation of monies owed to such employees shall be made
in accordance with Ogle Protection Service, 183 NLRB 682
(1970), enfd. 444 F.2d 502 (6th Cir. 1971).
(d) Preserve and, within 14 days of a request, or such
16 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulation, the findings, conclusions and recommended order
herein shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be waived for all purposes.
additional time as the Regional Director may allow for good
cause shown, provide at a reasonable place designated by the
Board or its agents, all payroll records, social security payment
records, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored in
electronic form, necessary to analyze any monies due under the
terms of this order.
(e) Within 14 days after service by the Region, post at all the
facilities covered by its bargaining agreement with the Union,
including the Pontiac, Michigan facility, copies of the attached
notice marked “Appendix.”17 Copies of the notice, on forms pro-
vided by the Regional Director for Region 7, after being signed
by the Respondent’s authorized representative, shall be posted
by the Respondent and maintained for 60 consecutive days in
conspicuous places, including all places where notices to em-
ployees 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. In the event that, during
the pendency of these proceedings, the Respondent has gone out
of business or closed the facilities involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed at those facilities by Respondent at any time since
September 2015.
(f) Within 21 days after service by the Region file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
Dated, Washington, D.C. May 25, 2017
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
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 be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT do anything that interferes with these rights.
Michigan Council 25 and its affiliated Local 1820, American
Federation of State, County, and Municipal Employees
(AFSCME), AFL–CIO (Union) is the exclusive collective-
17 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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
bargaining representative of the following unit (the unit):
All nonprofessional associates, including technical associates,
carpenters, plumbers, electricians, boiler operators, painters,
maintenance mechanics, technicians, health unit coordinators,
clerks in the following departments: medical records, nursing
services, laboratory, communications, buildings and grounds,
physical therapy, radiology, food service and environmental
services, and/or all classifications set forth in Article XIX, job
titles and pay grades, but excluding public safety officers, reg-
istered associates, licensed associates, professional associates,
clerical associates reporting to the business office, and all other
clerical associates not specifically included herein.
WE WILL NOT unilaterally remove the classification and work
of “pharmacy technician” from the unit.
WE WILL NOT refuse to meet and bargain collectively and in
good faith with your Union any proposed changes in wages,
hours and working conditions before putting such changes into
effect.
WE WILL NOT in any like or related manner interfere with your
rights under Section 7 of the Act.
WE WILL NOT fail and refuse to bargain collectively and in
good faith with the Union as your representative of the unit.
WE WILL, if requested by the Union, rescind any or all changes
to your terms and conditions of employment that we made with-
out bargaining in good faith with the Union, including returning
the classification and work of “pharmacy technician” to the same
status as it was prior to our unilateral decision to remove the
classification from the unit.
WE WILL pay employees for the wages and other benefits lost
because of the changes to terms and conditions of employment
that we made without bargaining collectively and in good faith
with the Union.
WE WILL remit to the Union dues that should have been
checked-off as a result of the changes to your terms and condi-
tions of employment that we made without bargaining with the
Union.
TRINITY HEALTH-MICHIGAN D/B/A ST. JOSEPH
MERCYOAKLAND HOSPITAL
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/07-CA-161375 or by using the QR code be-
low. Alternatively, you can obtain a copy of the decision from
the Executive Secretary, National Labor Relations Board, 1015
Half Street, S.E., Washington, D.C. 20570, or by calling (202)
273−1940.