Henry Ford Health System

National Labor Relations Board - Board Decisions

Apr 17, 1996

320 N.L.R.B. 1153 (N.L.R.B. 1996)

1153
320 NLRB No. 160
HENRY FORD HEALTH SYSTEM
1 This is the final step in the Respondent’s grievance procedure,
which begins with consideration of a grievance by the aggrieved em-
ployee’s manager, followed by an appeal to a representative of the
Human Resources department.
Henry Ford Health System and Michigan Associa-
tion of Police-911. Case 7–CA–33785
April 17, 1996
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
Upon a charge filed on October 1, 1992, by Michi-
gan Association of Police-911, the General Counsel of
the National Labor Relations Board issued a complaint
and notice of hearing on October 30, 1992, and a con-
solidated amended complaint on September 22, 1993,
and December 2, 1993. On March 3, 1994, the Re-
gional Director for Region 7 issued an order severing
the instant case, Case 7–CA–33785, from the consoli-
dated complaint. The complaint alleges, in pertinent
part, that the Respondent violated Section 8(a)(1) and
(5) of the National Labor Relations Act by failing and
refusing to allow employee Jonathan Malhalab to have
union representation at a hearing before the Respond-
ent’s Grievance Council at which Malhalab was con-
testing his termination. On December 12, 1994, the
parties filed with the Board a stipulation of facts and
joint motion to transfer the case to the Board. The mo-
tion was granted on April 26, 1995. The General
Counsel, the Charging Party, and the Respondent sub-
sequently filed briefs.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
On the basis of the entire record in this case, the
Board makes the following
FINDINGS OF FACT
I. JURISDICTION
Respondent Henry Ford Health System is a corpora-
tion with an office and facility in Detroit, Michigan,
engaged in the operation of an acute medical care hos-
pital and related medical services. Annually, the Re-
spondent derives gross revenues in excess of $500,000
in the course and conduct of its operations, and pur-
chases health products and other supplies valued in ex-
cess of $50,000, which are transported and delivered to
the Respondent’s facilities directly from points outside
the State of Michigan. The Respondent admits, and we
find, that it is an employer engaged in commerce with-
in the meaning of Section 2(2), (6), and (7) of the Act.
The parties stipulated, and we find, that the Michi-
gan Association of Police-911 is a labor organization
within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Factual Background
The Respondent established a Grievance Council
(the Council) in the early 1970s, composed of 30 non-
supervisory employees, all of whom are elected by the
Respondent’s nonsupervisory employees through an-
nual elections. Each member of the Council serves for
a 2-year term on a staggered basis, with one member
elected chairperson. A member of the Respondent’s
Employee Relations staff is appointed by the Respond-
ent as the Council’s advisor, and is responsible for
providing Council members with advice and ensuring
that the Council complies with the Respondent’s poli-
cies and procedures. Twelve members of the Council,
including the chairperson, are chosen by lot to hear
each case. Council members may not serve on a panel
if a conflict of interest exists, e.g., if the grievant is
working in the same department as the member.
Any nonsupervisory, nonprobationary employee may
appeal disciplinary actions such as written warnings,
suspensions, or terminations to the Council, which has
been granted final authority by the Respondent to up-
hold, modify (but not to increase), or to set aside the
challenged disciplinary action.1 Pursuant to procedures
established by the Respondent, Council hearings are
conducted in a formal manner, with ex parte contacts
prohibited. Members of a grievance panel receive a
packet of information from the Respondent’s Human
Resources department containing the employee’s writ-
ten grievance and all responses to the grievance by the
Respondent or the grievant. The grievant also receives
a copy of this packet.
At the hearing, the grievant and supervisor involved
in the discipline appear at the same time, state their re-
spective positions and respond to questions from mem-
bers of the Council panel. The grievant and supervisor
may not pose questions to each other. The grievant
may call witnesses after giving the Human Resources
department at least 48 hours’ advance notice, but the
witnesses are questioned by the Council panel pri-
vately, outside the presence of the grievant or the su-
pervisor. Likewise, the grievant’s department head also
may appear privately and answer questions. The pro-
ceedings of the Council are confidential and disclosure
to individuals who are not Council members is prohib-
ited. The Respondent’s written rules also provide that
employees appearing before the Council may not be
accompanied by any representative, either employee or
nonemployee.
1154 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 The Council can modify disciplinary measures previously taken
by the Respondent upon the recommendation of the Grievance
Council Advisor.
3 If the Council panel votes to overturn the discipline completely,
the advisor may propose that the discipline be lessened in severity
instead. The Council is required to vote on that proposal using the
same procedure outlined above. However, if the panel adheres to its
earlier vote to overturn the discipline entirely, that vote stands.
4 Although the Respondent ‘‘request[ed] that the instant complaint
be dismissed in its entirety,’’ it did not address the Sec. 8(a)(5) alle-
gation in its brief.
After the Council panel hears all the testimony and
discusses the evidence presented, the members vote by
secret ballot to sustain, modify,2 or reject the chal-
lenged discipline. All employee members of the Coun-
cil panel vote except the chairperson, who votes only
in case of a tie. The Council advisor is present
throughout the proceeding but is not permitted to vote.
A majority vote determines the disposition of the
grievance.3 Once rendered, decisions of the Council
are considered final and binding by the Respondent. In
light of the Council’s authority to resolve employee
grievances, the parties have stipulated that the mem-
bers of the Council are agents of the Respondent with-
in the meaning of Section 2(13) of the Act.
On August 24, 1990, the Board certified the Union
as the exclusive representative, for purposes of collec-
tive bargaining, of an appropriate unit of guards em-
ployed by the Respondent at its Detroit, Michigan fa-
cility. The Board reaffirmed this certification in its de-
cision in Children’s Hospital of Michigan, 317 NLRB
580 (1995), on remand from NLRB v. Children’s Hos-
pital of Michigan, 6 F.3d 1147 (6th Cir. 1993). Ac-
cordingly, we find that at all times material to this
case, the Union was the exclusive representative for
purposes of collective bargaining of unit employees.
On about July 7, 1992, the Respondent terminated
unit employee Jonathan Malhalab. Malhalab appealed
his termination to the Council and, on about September
25, 1992, notified the Respondent that he wished to be
represented by the Union at his hearing before the
Council. This request was denied by the Respondent.
The Council then proceeded to hear Malhalab’s griev-
ance.
B. Contentions of the Parties
The General Counsel contends that the proceedings
before the Council constituted investigatory meetings
with management, in that the procedure calls for taking
testimony from the grievant and offering him a chance
to explain his actions prior to a final decision on the
grievant’s fate. In this regard, the General Counsel as-
serts that the disciplinary action appealed from is not
final until the Council acts pursuant to the Respond-
ent’s own rules of procedure. As such, the fact that the
Council reviews the disciplinary actions after they are
announced, and cannot increase the discipline levied
by the Respondent, does not deprive the proceedings
of their investigatory nature. The General Counsel
maintains that by denying Mahalab’s request for rep-
resentation at this proceeding, the Respondent violated
Section 8(a)(1) of the Act. The General Counsel also
asserts that the Respondent’s exclusion of the Union
from a grievance adjustment meeting involving a unit
employee violates Section 8(a)(5), inasmuch as the Re-
spondent is thereby insisting on dealing directly with
the employee and depriving the Union of any role in
the process.
The Respondent, in contrast, asserts that the Council
hearings are not investigatory interviews because the
members of the Council are not supervisors and ‘‘man-
agement’’ is not allowed to ask questions of a grievant
at the hearing. The Respondent states that the hearings
are conducted only after ‘‘management’’ has imposed
discipline against the employee, and that the Council
has no power to increase the discipline already meted
out by the Respondent. Under these circumstances, the
Respondent asserts that no ‘‘disciplinary action’’ can
result from a Council hearing; instead the ‘‘only power
retained by the Grievance Council is to abolish or at
most reduce prior discipline on an employee.’’4
C. Discussion
It is well settled that an employee has a Section 7
right to request union representation at an investigatory
interview where the employee reasonably believes that
the investigation will result in disciplinary action.
NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975). For
the reasons that follow, we find that Weingarten is ap-
plicable in this case.
Contrary to the Respondent, it is evident that the
proceedings before the grievance committee are ‘‘in-
vestigatory’’ in nature. Thus, the Respondent’s proce-
dures contemplate the taking of testimony from a
grievant and other witnesses and the review of docu-
ments and other evidence. The members of the Council
then deliberate and reach a decision. In light of the
stipulation that the Council was an agent of the Re-
spondent for purposes of grievance adjustment, and
that the Respondent deemed the Council’s decisions
final and binding on it, we find that the Council’s pro-
ceedings constituted an investigatory interview by the
Respondent for the purposes of the Board’s
Weingarten doctrine.
We find that the Council proceedings remain inves-
tigatory even though they are held only after the Re-
spondent has announced the discipline it intends to im-
pose. The Board has held that Weingarten rights are
not applicable to a meeting with the employer ‘‘held
solely for the purpose of informing the employee of,
and acting upon, a previously made disciplinary deci-
sion.’’ Baton Rouge Water Works, 246 NLRB 995,
997 (1979). However, the Board has also held that
1155HENRY FORD HEALTH SYSTEM
5 Likewise, because the disciplinary action is not final until it is
reviewed by the Council, it is irrelevant to our disposition of this
case that the Council may not increase discipline beyond the level
proposed by the Respondent. A grievant has reasonable grounds to
believe that discipline will result from a Council hearing because,
under the Respondent’s procedures, no final, binding discipline is
imposed until the Council has acted.
Polson Industries, 242 NLRB 1210 (1979), cited by the Respond-
ent, is distinguishable from the present case. In Polson Industries,
the Board found that, once an employee had voluntarily terminated
his employment, he was not entitled to union representation at a
meeting to consider his pleas for reinstatement. In this case,
Malhalab remained an employee, for purposes of his Weingarten
rights, at least until his status was finally determined by the Council.
6 Member Cohen notes that the Respondent seeks dismissal of the
8(a)(1) and 8(a)(5) allegations. He agrees with his colleagues that the
proceedings before the Council were in the nature of a management
investigation into whether discipline should be imposed. Accord-
ingly, the refusal to permit union representation violated Sec. 8(a)(1)
under Weingarten. However, given this conclusion, Member Cohen
has serious reservations concerning whether the conduct also vio-
lated Sec. 8(a)(5). That is, in light of the proposition that the Council
was investigating the issue of whether discipline should be imposed,
it is difficult to say that the Council was simultaneously considering
the issue of whether discipline was appropriate. Indeed, my col-
leagues concede that the Council determines ‘‘what discipline, if
any, should be imposed.’’ A true grievance committee reviews the
propriety of discipline that has been imposed. Since it is the latter
issue that ordinarily gives rise to 8(a)(5) rights, it is not clear that
such rights were infringed upon in this case. Member Cohen does
not pass on the 8(a)(5) issue. In this regard, he notes that a remedy
for an (a)(5) violation would not add materially to the remedy for
the 8(a)(1) violation.
Because the parties’ stipulation specifically provides that the
Council has the final authority to ‘‘uphold, modify, or set aside the
challenged disciplinary action,’’ we do not agree with Member
Cohen that the Council here was not ‘‘considering the issue of
whether discipline was appropriate.’’ We believe that on these facts
the Council proceedings encompassed both an inquiry into the facts
and a determination of what discipline, if any, should be imposed.
Accordingly, we do not share our colleague’s reservations.
7 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.’’
when an employer ‘‘inform[s] the employee of a dis-
ciplinary action and then seek[s] facts or evidence in
support of that action . . . . the employee’s right to
union representation would attach.’’ Id. See also PPG
Industries, 251 NLRB 1146 fn. 2 (1980) (Weingarten
applicable where, as here, employer ‘‘did not reach a
final, binding decision concerning specific discipline
prior to’’ the meeting in question). Because the Re-
spondent’s disciplinary actions are not final and bind-
ing until after they are reviewed by the Council, we
find that the Council’s proceedings are investigatory
and thus subject to the Board’s Weingarten rule.5 Ac-
cordingly, we find that by denying Mahalab’s request
for representation at the Council’s proceeding, the Re-
spondent violated Section 8(a)(1) of the Act.
Finally, we agree with the General Counsel that the
Respondent has violated Section 8(a)(5) by applying
its rule barring representatives at Council hearings to
the Union. Pursuant to Section 9(a) of the Act, the
Union has the right to be present at all grievance ad-
justment meetings between the Respondent and unit
employees. Because the Council is stipulated to be the
Respondent’s agent for purposes of grievance adjust-
ment, we find that Council hearings constitute griev-
ance adjustment meetings. Accordingly, the Respond-
ent’s refusal to allow the Union to be present at the
hearing violated Section 8(a)(5) of the Act. Chevron
Oil Co., 168 NLRB 574 (1967).6
ORDER
The National Labor Relations Board orders that the
Respondent, Henry Ford Health System, Detroit,
Michigan, its officers, agents, successors, and assigns,
shall take the following actions necessary to effectuate
the purposes of the Act.
1. Cease and desist from
(a) Denying unit employees’ requests to be rep-
resented by a union representative during an investiga-
tory interview, including hearings before the Grievance
Council, in which employees have reason to believe
that disciplinary action would be taken against them.
(b) Failing and refusing to consult with the Union
concerning the adjustment of grievances of bargaining
unit employees before the Grievance Council.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative actions necessary
to effectuate the purposes of the Act.
(a) Rescind the provisions of its Employee Hand-
book that prohibit unit employees from being rep-
resented by the Union at hearings before the Grievance
Council.
(b) Post at Respondent’s facility in Detroit, Michi-
gan, copies of the attached notice marked ‘‘Appen-
dix.’’7 Copies of the notice, on forms provided by the
Regional Director for Region 7, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent immediately upon receipt
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
1156 DECISIONS OF THE 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
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To chose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT deny requests by bargaining unit em-
ployees to be represented by a union representative
during an investigatory interview, including hearings
before the Grievance Council, in which you have rea-
son to believe that disciplinary action will be taken
against you. The bargaining unit is:
All full-time and regular part-time guards as de-
fined in the Act employed at our facilities located
at 2799 West Grand Boulevard, Detroit, Michi-
gan, 48202; Henry Ford Medical Center-Fairlaine,
19401 Hubbard Drive, Dearborn, Michigan,
48126; Henry Ford Medical Center-West Bloom-
field, 6777 West Maple Road, West Bloomfield,
Michigan, 48322; Henry Ford Medical Center-
Lakeside, 14500 Hall Road, Sterling Heights,
Michigan, 48080; Henry Ford Medical Center-
Sterling Heights, 3058 Metropolitan Parkway,
Georgetown Medical-Dental Building, Sterling
Heights, Michigan, 48310; Henry Ford New Cen-
ter Pavilion, 2921 West Grand Boulevard, Detroit,
Michigan, 48202; Henry Ford Medical Center-
Senior Center, 2395 West Grand Boulevard, De-
troit, Michigan, 48202; and Henry Ford Medical
Center-Troy, 2825 Livernois, Troy, Michigan,
48083; but excluding all access control monitors
and supervisors as defined in the Act, and all
other employees.
WE WILL NOT fail and refuse to consult with the
Union concerning the adjustment of grievances of bar-
gaining unit employees before the Grievance Council.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL rescind the provisions of our Employee
Handbook that prohibit unit employees from being rep-
resented by the Union at hearings before the Grievance
Council.
HENRY FORD HEALTH SYSTEM