Yale University

National Labor Relations Board - Board Decisions

Aug 8, 2001

334 N.L.R.B. 990 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 990
Yale University and Local 34, Federation of Univer-
sity Employees a/w Hotel Employees & Restau-
rant Employees International Union, AFL–CIO.
Case 34–CA–8617
August 8, 2001
DECISION AND ORDER
BY MEMBERS LIEBMAN, TRUESDALE, AND
WALSH
On June 1, 2000, Administrative Law Judge Raymond
P. Green issued the attached decision. The General
Counsel filed exceptions and a supporting brief, and the
Respondent filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.

Margaret La Rue, Esq., for the General Counsel.
Joseph W. Ambash, Esq. and Daniel Klien Esq., for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. This
case was heard by me in Hartford, Connecticut, on March 7,
2000. The charge was filed on December 10, 1998, and the
complaint was issued on September 29, 1999.
In substance, the complaint alleges, under the theory of
NLRB v. Jacobs Mfg. Co., 196 F.2d 680 (2d Cir. 1962), enfg.
94 NLRB 1214 (1951), that the Respondent refused to bargain
regarding the terms and conditions of certain employees during
the term of an existing collective-bargaining agreement. The
Respondent asserts that these were new employees, hired into
existing bargaining unit jobs, and as such, their terms and con-
ditions of employment were governed by the existing and ex-
plicit terms of the collective-bargaining agreement.

1 We correct two inadvertent errors by the judge, which do not affect
our decision. In sec. II of his decision, the judge stated that the General
Counsel was not contending that the Respondent and Yale New Haven
Hospital “constitute a single employer or that they are joint employers
or even that they are engaged in a joint venture.” In sec. III, the judge
stated that the General Counsel conceded that the Respondent and the
Hospital “have been and are separate enterprises which were not joint
employers or joint venturers.” At the hearing, however, counsel for the
General Counsel stated her position on the Respondent’s relationship
with the Hospital as follows: “we’re not conceding that they’re entirely
separate entities, but we’re not, in these proceedings, making a claim of
either single or joint employer status.” Counsel for the General Coun-
sel made no reference to engagement in a joint venture. We are satis-
fied that these minor errors do not undermine the judge’s conclusion
that the Respondent did not violate Sec. 8(a)(5) and (1) as alleged in the
complaint.
On the entire record, including my observation of the de-
meanor of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
The parties agree and I find that the Respondent is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act. It also is agreed and I find that the
Charging Party, Local 34, Federation of University Employees
a/w Hotel Employees & Restaurant Employees International
Union, AFL–CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICE
The Respondent in this case is Yale University which,
among other things, has a school of medicine. This is 1 of 10
professional schools operated by the University.
Yale Medical School has maintained an affiliation contract
with a completely different entity called Yale New Haven Hos-
pital. This particular contract goes back to about 1975 and it is
a reciprocal arm’s-length transaction. When the school of
medicine uses the services of hospital employees, it pays to the
Hospital, the employees’ salaries plus an 18-percent surcharge.
Conversely, medical faculty of the medical school do clinical
services at the Hospital and the Hospital is charged a fee by the
medical school.1
There is a close working relationship between the Hospital
and the Medical School. But the two entities are, in fact, sepa-
rate enterprises having separate corporate officers, directors,
managers, and staffs. The General Counsel conceded at the
opening of the hearing that she was not contending that Yale
New Haven Hospital and Yale Medical School constitute a
single employer or that they are joint employers or even that
they are engaged in a joint venture.
Notwithstanding that each performs services for the other,
Yale University Medical School and Yale New Haven Hospital
are separate entities having separate sets of employees. There-
fore, the employees of one are not, and have never been, the
employees of the other. There are, however, occasions when an
employee may be hired by the Medical School who happened
to be previously employed by the Hospital, or vice versa.
Of about 600 physicians who are on the medical school’s
staff and who participate in clinical work at Yale New Haven
Hospital, approximately 65, from the medical school’s depart-
ment of internal medicine, provide outpatient care in what is
called the Dana 3 medical practice. This work is carried out on
the third floor of the Dana building which is leased to the medi-
cal school by the Hospital. In relation to the Dana medical
practice, the medical school provides the physicians and a few
administrative people, whereas the Hospital, before the events
1 The name of both institutions is traceable to Elihu Yale who was
born in Massachusetts in 1649 and became an official of the East India
Company. In response to requests by Cotton Mather, he became a
benefactor to the Collegiate School at Saybrook which later became
known as Yale College. See Encyclopedia Brittanica.
334 NLRB No. 123
YALE UNIVERSITY 991
here, provided a group of about 14 hospital employees in the
categories of medical transcriptionists, secretaries, and patient
care associates. Patients who are treated at this clinic are con-
sidered to be patients of the medical school and not patients of
the Hospital. The person in charge of the clinic, insofar as
medical procedures and decisions, is Dr. Silvio Inzucchi, who
is an associate professor of medicine.
None of the employees of Yale New Haven Hospital are rep-
resented by a labor organization and their terms and conditions
of employment are established by the Hospital consistent with
market conditions in the area. Thus, the employees furnished
by the Hospital, who were assigned to work in the Dana 3
medical practice, were nonunion and had their wages, hours,
and terms and conditions of employment set by the Hospital.
They also were under the direct supervision of Mary Ann Lillie,
a supervisory employee of the Hospital.
For many years, Yale University has had a collective-
bargaining relationship with Local 34, Federation of University
Employees, which represents abut 2800 clerical and technical
employees of the University. Some of the represented employ-
ees work at the Medical School and that unit contains classifi-
cations identical to the job classifications of the 14 hospital
employees who were assigned to work at the Dana 3 medical
practice. (Transciptionists, medical assistants, etc.)
The most recent collective-bargaining agreement between
Local 24 and Yale University runs from January 21, 1996,
through January 20, 2002. The contract covers many technical
and clerical job classifications and, as noted above, the people
who were employed by the Hospital and who worked at Dana
3, worked in job categories identical to people who were em-
ployed elsewhere by Yale Medical School. The difference of
course, was that the individuals who were hospital employees
assigned to Dana 3 were employed by the Hospital and re-
ceived their supervision, wages, and working conditions in
accordance with hospital policy, whereas, similarly situated
employees doing identical jobs but employed by Yale Medical
School, had their wages and working conditions determined by
the collective-bargaining agreement. The few medical school
employees who were assigned to clerical jobs at Dana 3, were
covered by the collective-bargaining agreement.
The existing collective-bargaining agreement has a number
of provisions explicitly relating to new hires. Article X allows
the university to unilaterally set, within defined limits, the start-
ing salaries of new hires in the various covered job classifica-
tions.2 Article XV sets parameters for determining seniority
levels for new hires. (Some seniority consideration is given to
people who previously worked at the university and this is de-
termined by a contractually determined formula.) Article XVI
contains a provision which gives preference to existing bargain-

2 Over a number of years and during several sets of negotiations, the
Union has sought to limit the discretion of the University to be able to
set initial salaries for new hires at levels above the minimum salaries
set for the various job classifications defined in the contract. In this
regard, the Union has been successful in limiting the discretion of the
University and the contract contains specific rules and limits as to when
and under what circumstances the University may hire an individual at
a salary above the contract’s minimum.
ing unit people over outside people when bargaining unit posi-
tions become available.
By early 1998, the management of Yale University’s Medi-
cal School decided that it could save money if it used its own
support people to work at Dana 3 instead of leasing them from
the Hospital with the concomitant obligation to pay the 18-
percent wage surcharge. The Medical School decided that its
staffing needs required it to hire 12 such individuals. The posi-
tions were for medical assistants, account assistants, and medi-
cal transcriptionists. As noted above, these were job classifica-
tions which already existed within other departments of the
Medical School and people occupying such positions were
covered by the collective-bargaining agreement between the
University and Local 34.
As a result, the Hospital’s employees who were assigned to
Dana 3, were told that they could apply for jobs at the Medical
School or that they could apply to transfer to other jobs within
the Hospital. The jobs were also posted in the University in
accordance with the provisions of Local 34’s collective-
bargaining agreement.
During the period from April 1 through June 1, 1998, about
half of the employees who had been employed by the Hospital
and worked at Dana 3, elected to remain employed by the Hos-
pital and were shifted to other jobs. The other half elected to
apply to the Medical School for the equivalent jobs at Dana 3.
Of the 12 positions available, the Medial School hired 7 who
had previously worked for the Hospital but rejected one hospi-
tal employee applicant in favor of an outside applicant whose
transcription skills were deemed to be superior. Four of the
positions were taken by people who had no prior connection to
either the Hospital or the Medical School. And one position
was filled by a person who already was employed by the Medi-
cal School and therefore could be deemed to be an internal
university transferee. In July 1998, Lillie officially left the
Hospital’s employ and became employed by the Medical
School as the nurse manager of Dana 3.
Instead of taking the position that the hiring of this group of
employees for Dana 3 created an entirely new unit, the Univer-
sity took the position that these people constituted a minor ex-
pansion of the existing bargaining unit, requiring the hiring of a
small number of new employees. It therefore took the position
that because the people hired to work for the Medical School at
Dana 3 occupied job classifications already covered by the
existing collective-bargaining agreement, their wages, hours,
seniority, and all other terms and conditions of employment
should be governed by the existing collective-bargaining
agreement and should be the same as those occupying the same
job classifications under the labor agreement.3 Therefore, the
University, applying the terms of the contract, set the initial
salaries and the respective seniority levels of the new employ-
ees who were hired to work at Dana 3.
3 This would be the equivalent of an “accretion” where a small group
of unrepresented employees is added to an existing bargaining unit and
where the company would be obligated to apply the terms of the exist-
ing collective-bargaining agreement to this new group of people.
NLRB v Coca Cola of Buffalo, 191 F.3d 316 (2d Cir. 1999).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 992
The fact that the University applied the labor agreement’s
terms to the people hired to work at Dana 3, had a negative
impact on some of the people who had previously been em-
ployed by the Hospital. Several took pay cuts as their non-
union salary rates at the Hospital were higher than the rates
assigned to them by the University under the terms of the con-
tract. Also, none of the people who had previously been em-
ployed by the Hospital were credited with the seniority that
they had accrued while employed at the Hospital. Instead, their
seniority commenced on the dates that they were hired by the
Medical School as new employees.4
On May 22, 1998, union organizer Paul Wessel sent a letter
to Inzucchi and Mary Ann Lillie. This read as follows:

The Union would like to meet with Dana 3 manage-
ment concerning the impact of the transfer of staff posi-
tions from the Hospital to University payroll.
We are concerned that the manner in which these posi-
tion transfers ware being carried out is disruptive to the
long-standing relationships between Dana 3 and its staff.
Prior notice of these changes and earlier discussions could
have helped smooth out this transition. Even at this late
date, however, we strongly believe an open discussion
would be to everyone’s benefit, including he patients
served by the physicians of Dana 3.

Receiving no response, Wessel sent another letter, this time
to the Dean of the Medical School. This stated:

Now that the medical transcription, medical assistant,
clerical and other positions in Internal Medicine’s Dana 3
section have been shifted from the Yale-New Haven Hos-
pital into the Local 34 bargaining unit, Local 34 and the
University need to bargain about the terms and conditions
of employment for the employees performing the work.
We are particularly concerned that the University unilater-
ally chose to place the employees as new employees with
no recognition of their seniority and wage rates in the
positions. Please contact me as soon as possible to
negotiate appropriate treatment for these positions under
our collective-bargaining agreement.

By letter dated Julne 26, the University, by James Juhas,
manager of labor relations, wrote to Wessel as follows:

The changes in Dana 3 came about as a result of a de-
cision by Internal Medicine to cease its contract arrange-
ment with Yale New Haven Hospital to provide certain
support services to the clinic. In the alternative, the De-
partment elected to provide these service with its own
staff. This required the addition of several Clerical and
Technical positions in the unit. These jobs were requisi-
tioned and posted following the University’s established
procedures. As I understand, Yale New Haven Hospital
employees who applied are filling some of the positions.
There is no obligation for the University to bargain
about the terms and conditions of employment for these
new University employees. They are being hired in the

4 Additionally one former hospital employee lost her parking privi-
leges as a result of being considered a new employee of the University.
same manner as any other external applicants for Univer-
sity positions and as such, are appropriately considered
part of the Clerical and Technical bargaining unit once
they are hired, and covered by our labor agreement.
III. ANALYSIS
Section 8(d) of the Act, among other things, provides that
when a contract is made between a union and an employer, the
duty to bargain “shall not be construed as requiring either party
to discuss or agree to any modification of the terms and condi-
tions contained in a contract for a fixed period, if such modifi-
cation is to become effective before such terms and conditions
can be reopened under the provisions of the contract.” The
purpose of this provision (enacted to modify the decision in
NLRB v. Sands Mfg. Co., 306 U.S. 332. 342 (1939)) was to
insure a degree of stability once the parties to a collective-
bargaining relationship have established a contract for a fixed
term. (A bargain made is a bargain that must be kept.) Thus,
for example, if the parties agree that clerical employees are to
receive $15 per hour for 3 years, neither the Company nor the
Union could require the other to bargain for a modification of
that agreement during the life of the agreement.5 To allow
either to require the other to bargain about an issue that had
been set for a fixed period of time, would, in a sense, make the
agreement somewhat illusory and insert a degree of instability
into the relationship between the parties. (There is, however,
nothing unlawful if both parties to a collective-bargaining
agreement voluntarily and mutually agree to a mid-term modi-
fication.)
Some people have argued that once a collective-bargaining
contract has been agreed to, neither side, during its term, has to
bargain with the other for any modification, change, or addi-
tion. That assertion, however, is one that goes too far. In
NLRB v. Jacobs Mfg. Co., 196 F.2d 680 (2d Cir. 1962), enfg.
94 NLRB 1214 (1951), the court held that an employer was
required to bargain during the midterm of a contract “as to sub-
jects which were neither discussed nor embodied in any of the
terms and condition of the contract.” In Jacobs, supra, the
union demanded, pursuant to a provision of the contract that
allowed for a reopening only for wages, that the employer also
bargain for changes in the existing insurance program and for
the adoption of a new pension plan. The Board and the court
concluded that even though the parties were in the middle of
the agreement, the employer had an obligation to bargain, but
only as to the union’s request for a pension plan. The reasoning
was that there was nothing in the contract about pension plans
and therefore when the union demanded to bargain about that
5 Not only may either party refuse to enter into negotiations to mod-
ify a contract during its mid-term, but either would violate the Act if it
attempted to impose contract changes on the other, absent voluntary
consent. Thus, in NLRB v. Electrical Workers (Burroughs Corp.), 828
F.2d 936 (2d Cir. 1987), a union violated Sec. 8(b)(3) and 8(d) of the
Act by threatening to strike to obtain a mid-term renegotiation of a
contract. Similarly, in St. Vincents Hospital, 320 NLRB 42 (1995), an
employer violated the Act by unilaterally implementing, without the
union’s consent, a new insurance plan to replace one to which the Un-
ion had orally agreed. See also Mead Corp., 318 NLRB 201 (1995).
YALE UNIVERSITY 993
particular subject, it did not seek to modify or change any term
of the existing contract.
The General Counsel contends that Yale University is obli-
gated to bargain with the Union over the wages, seniority, and
other terms and conditions of employment for a group of seven
individuals whom it hired when it terminated its arrangement
with Yale New Haven Hospital. Under the old arrangement,
the University had agreed to use the Hospital’s employees to
provide support services for a medical clinic operated by the
University’s Medical School on premises it leased from the
Hospital. The General Counsel argues that bargaining over
such issues, with respect to this group of employees, would fall
within the parameters of required bargaining as enunciated by
the Board and the court in NLRB v. Jacobs Mfg. Co., supra.
She argues that these people considered themselves to be trans-
ferees and therefore were not exactly new hires when their
services were acquired by the University. She therefore con-
tends that the provisions of the collective-bargaining agreement
relating to “new hires” would not be controlling. According to
the General Counsel, this group of people should be treated
more like transferees than new hires.
I note that the General Counsel does not contend that the Re-
spondent unilaterally changed the terms and conditions for the
seven employees and this position follows from the fact that
these employees, prior to their hiring by the Respondent, were
employees of the Hospital and were not represented by any
labor organization. Therefore, the Respondent did not owe any
duty to any union with respect to whether these employees
should retain the wages and other working conditions that they
had when they were employed by the Hospital.
Nor does the General Counsel contend that every time a new
person is hired into an existing bargaining unit job, the Univer-
sity has to renegotiate with the Union, that individual’s salary,
seniority status, or other terms of employment as if there was
no contract already in place. Such a position would, in my opin-
ion, require a never ending series of negotiations each time a
new person is hired. (Hardly conducive to stable labor rela-
tions.)
The Respondent argues, and I agree, that the wages, senior-
ity, and the other terms that were imposed on the seven em-
ployees who had previously been employed by the Hospital
were determined by the explicit terms of the collective-
bargaining agreement that was in existence between Yale Uni-
versity and the Union. That agreement allowed the University
to set the initial rates of pay, within certain defined limits, for
new employees who are hired into job categories covered by
the contract. Further, the contract establishes seniority as start-
ing on the date of hire, although the contract requires that some
seniority is added for new employees who had previously
worked within the bargaining unit. Therefore, the seniority that
the University gave to the seven former hospital employees was
established in accordance with the seniority provisions of the
contract.
The General Counsel concedes that Yale University and
Yale New Haven Hospital have been and are separate enter-
prises which were not joint employers or joint venturers. It
therefore is axiomatic that the employees of one were not the
employees of the other. And if an employee of one leaves to
become employed by the other, that individual can only be
considered as a former employee of one and a new employee of
the employer to whom he or she goes. Thus, if the seven former
hospital employees were never previously employed by Yale
University, even though they provided contract services for the
University, they first became employees of the University when
they were hired by the University.
If the seven former hospital employees became new hires of
the University and were hired for jobs covered by the collec-
tive-bargaining agreement, and if that agreement establishes the
wages, seniority, and other terms and conditions for new hires
within those job categories, then the parties have, by their pre-
existing bargain, established the terms of employment for the
seven. There was, therefore, really nothing left to bargain
about.6
This is not a case where a new group of employees is hired
and their job categories or job functions are not the same or
equivalent to jobs covered by the contract. If that were the
case, the Union would have a legitimate argument that bargain-
ing would be needed to establish their terms of employment
and how such terms should relate to other jobs covered by the
collective-bargaining agreement. But this is not the situation
here because it is conceded that the seven ex-hospital employ-
ees who were hired by the University, were hired to perform
jobs in categories already existing at the Medical School and
that those jobs were covered by the labor agreement.
CONCLUSION OF LAW
The Employer has not violated the Act in any manner al-
leged in the complaint.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended 7
ORDER
The complaint is dismissed.

6 Would the Regional Director have dismissed an 8(a)(5) charge if
the facts had shown that the company, after bargaining to impasse, had
set the wages of the seven employees at levels below the contract
minimums for the jobs into which they were hired?
7 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.