Oakland Physicians Medical Center, LLC d/b/a Doctor's Hospital of Michigan

National Labor Relations Board - Administrative Judge Opinions

Aug 15, 2014

07-CA-120931 (N.L.R.B. Aug. 15, 2014)

JD─50─14
Detroit, MI
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
WASHINGTON, DC
OAKLAND PHYSICIANS MEDICAL CENTER, LLC
d/b/a DOCTORS’ HOSPITAL OF MICHIGAN
Respondent
and Case 07-CA-120931

MICHIGAN ASSOCIATION OF POLICE (MAP)
Charging Union
Scott Preston, Esq.,
for the General Counsel.
K. C. Hortop, Esq.,
for the Respondent.
Catherine Farrell, Esq.,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
Christine E. Dibble, Administrative Law Judge. This case was tried in Detroit, Michigan
on June 17, 2014. The Michigan Association of Police (MAP or Charging Union) filed the
charge on January 21, 2014, and an amended charge was filed on January 31, 2014.1 On April 4,
2014, the General Counsel issued the complaint against the Oakland Physicians Medical Center,
LLC d/b/a Doctors’ Hospital of Michigan (Respondent).2 Respondent filed a timely answer
denying all material allegations. (GC Exhs. 1-A to 1-J).3

1 All dates are in 2013 unless otherwise indicated.
2 Abbreviations used in this decision are as follows: “Tr.” for transcript; “GC Exh.” for General
Counsel’s exhibit; “R Exh.” for Respondent’s exhibit; “CU Exh.” for Charging Union’s exhibit; “ALJ
Exh.” for administrative law judge’s exhibit; “Jt. Exh.” for joint exhibit; “GC Br.” for General Counsel’s
brief; “R Br.” for Respondent’s brief; and “CU Br.” for Charging Union’s brief. My findings and
conclusions are based on my review and consideration of the entire record.
3 In its answer, Respondent denied pars. 2, 6, 7, 8, 9, and 10 of the complaint. During the hearing,
however, Respondent amended its answer to admit to these allegations. (Tr. 17-21, 55, 106-107.)
JD─50─14
2
The complaint alleges that since about January 1, 2014, Respondent failed to continue in
effect all the terms and conditions of its current collective bargaining agreement with the
Charging Union by changing its health care insurance plan, “Health Advantage, Tier Green,” to a
dissimilar plan, and by changing the employee premium contribution percentage, both without
the Charging Union’s consent.45
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel and Respondent, I make the following
FINDINGS OF FACT10
I. JURISDICTION
Respondent, a limited liability company, operates a hospital providing inpatient and
outpatient medical care at its facility in Pontiac, Michigan.5 During the 12-month period ending 15
December 31, 2013, Respondent derived gross revenue in excess of $250,000. During this same
period, Respondent also purchased and received at its Pontiac, Michigan facility goods,
materials, and supplies valued in excess of $50,000 directly from points outside the State of
Michigan. The Respondent admits, and I find, that at all material times it has been an employer
engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and has been a 20
health care institution within the meaning of Section 2(14) of the Act.
Respondent admits, and I find, that the following employees of Respondent constitute a
unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of
the Act:25
All full-time, regular part-time, and non-regular security officers and security customer
service representatives employed by Respondent at its Pontiac, Michigan facility; but
excluding all supervisors, temporary and contingent employees, and as defined by
Respondent.30
Further, at all material times Respondent has recognized, and the Charging Union has been, the
exclusive collective bargaining representative of the unit within the meaning of Section 9(a) of
the Act.
35
II. ALLEGED UNFAIR LABOR PRACTICES
A. OVERVIEW OF RESPONDENT’S OPERATION
Since 2008, Respondent has owned and operated a full-service acute care hospital, 40
employing healthcare professionals, administrative staff, security officers, and employees in

4 This allegation is alleged in par. 11 of the complaint.
5 Respondent also owns and operates an outpatient clinic, Waterford Ambulatory Care Center in
Waterford, Michigan, that is not part of this complaint. Therefore, all references to Respondent’s facility,
unless otherwise specified, pertain to its hospital in Pontiac, Michigan.
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3
other job classifications. During the period at issue John Ponczocha (Ponczocha) was the chief
executive officer (CEO), Dr. Short (first name unknown) was an owner and board member, and
Robert Chiaravalli (Chiaravalli) was Respondent’s attorney. Respondent also employed Mukul
Kumar (Kumar) as its chief financial officer (CFO).
5
The complaint at issue pertains to Respondent’s security officers. During the relevant
timeframe, Respondent employed approximately seven security officers. Their bargaining unit
consists of two job classifications: security officer and customer service security officer.6 The
customer service security officer’s primary responsibility is to greet visitors and secure the lobby
area of the hospital, while security officers in the other classification oversee the entire facility. 10
Since October 18, 2007, the Charging Union has been the exclusive bargaining representative for
both classifications of security officers. Donnell Reed (Reed) is and has been for the period at
issue, the Charging Union’s labor relations specialist. He represents the Charging Union’s
members in contract negotiations, enforcement proceedings, grievance hearings, arbitrations, and
other duties. John Hanson (Hanson) and Andrew Anzures (Anzures) are the union stewards for 15
the security officers’ bargaining unit.
American Federation of State County and Municipal Employees (AFSCME) and Unite
Auto Workers (UAW) also represent various classifications of employees at Respondent’s
facility. Melvin Brabson (Brabson) is the field staff representative for AFSCME. The UAW 20
labor representative is Mary Gamble (Gamble).
B. Article 16 of the Collective Bargaining Agreement
The Charging Union’s most recent collective bargaining agreement (CBA) with 25
Respondent was effective from April 10, 2012 to April 10, 2014.7 (GC Exh. 7.) The health
insurance provision of the CBA in Article 16 provides in relevant part:
16.1 For the duration of this Agreement, employees will be eligible to enroll in Health
Advantage, Tier Green, health insurance. Health insurance benefits are governed by the 30
Plan Document, and the Union shall be given a copy of the Plan Document. The Hospital
reserves the right to amend the plan design of health insurance benefits other than the
premium co-share schedule listed below. The Union will be given notice of any plan
design amendments.
35
Employees will be required to pay the following health insurance premium co-share:
Full-time single 10% per pay
Full-time two person 10% per pay
Full-time family 10% per pay40

6 Reed gave undisputed testimony that currently none of the security officers are classified as
customer service security officer. According to Reed, the final customer service security officer was
promoted to security officer within the last year. (Tr. 31.)
7 Since the expiration of the most recent CBA, the Charging Union has attempted to engage
Respondent in contract negotiations but it has refused. (Tr. 32-33.)
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60-79 single 25% per pay
60-79 two person 25% per pay
60-79 family 25% per pay
40-59 single 50% per pay5
40-59 two person 50% per pay
40-59 family 50% per pay
(GC Exh. 7.)
10
The remaining portion of 16.1 addressed prescription drug coverage. Article 16
provision 16.4 is also relevant to the complaint at issue. It provides: “The Hospital reserves the
right to select and change insurance carriers and administrators, provided that similar coverage is
maintained.” Id.
15
C. Cancellation of and Amendments to Employees’ Health Insurance Plan
Since 2008, Respondent has contracted with Compass Benefit Group (CBG), located in
Birmingham, Michigan, to solicit the best health insurance plan for its employee benefit
program. Edward Maitland (Maitland) is the president of CBG. Prior to January 1, 2014, 20
Respondent had the majority of its employees in a self-funded health insurance plan. As part of
its self-funded healthcare plan, Respondent rented the list of doctors in the Health Alliance Plan
(HAP) preferred provider organization (PPO) network in order to get the discounts provided by
them.8 (Tr. 76-79) In 2013, HAP was administered by Northern Group Services (NGS), which
was later acquired by CoreSource.9 Respondent also contracted with Blue Cross Blue Shield 25
(BCBS) to provide health insurance for a “handful” of employees who had been grandfathered
into that plan. Maitland described these employees as “old-timers within the hospital” that
consisted of union and non-union members. (Tr. 76-77.) In June or July 2013, BCBS notified
CBG that it would cancel the health insurance for those employees because it was not cost
effective for BCBS. Immediately following BCBS notification, Maitland informed the President 30
of Respondent’s facility of the future cancellation of the healthcare plan.10
In August, Respondent started getting behind on paying health insurance claims through
NGS. Therefore, in August, September, and October, Maitland had continuing discussions with
Respondent and NGS on ways to continue the self-funded employee health insurance plan and 35
pay the claims. In mid-November, Respondent’s ability to timely pay its claims did not improve
so NGS notified Maitland that it would terminate its contract with Respondent. Maitland
informed Ponczocha that same day of NGS’ intention to terminate the contract. Respondent
instructed CBG to find a replacement plan that was cost effective and fully insured.
Consequently, in November CBG began searching for a new health insurance plan for 40

8 Hereinafter, I will refer to Respondent’s self-funded health insurance plan as HAP.
9 NGS is a third-party administrator for self-funded health insurance plans. Respondent contracted
with NGS to adjudicate their insurance claims, but Respondent was responsible for paying the claims
from its own funds. Hereinafter, I will refer to NGS/CoreSource as NGS.
10 Maitland was unsure if Ponczocha was president of the facility at that time. (Tr. 78.) Since none of
the parties called Ponczocha as a witness, no evidence was presented to clarify the length of his tenure as
president. Regardless, the information is not necessary for me to rule on the merits of the complaint.
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5
Respondent’s employees and discovered Blue Care Network Health Maintenance Organization
(BCN HMO). BCN is a “fully insured” plan. (Tr. 82.) On November 29, Maitland emailed
Ponczocha, Kumar, and Chris Lucander (Lucander)11 with the cost associated with the BCN
HMO plan. He provided them with the cost to Respondent for choosing a plan with a $1500
employee deductible or a $3500 employee deductible. (GC Exh. 6.) The $1500 deductible plan 5
was called the core plan, and the $3500 deductible plan was referred to as the buy-up plan. By
choosing to place the employees in the BCN HMO network (with either the core plan or buy-up
plan), Respondent would have a fixed cost for insurance each month. (GC Exh. 6.) The final
plan that Respondent chose included a core plan with a $2000 employee deductible and a buy-up
plan with a $3500 employee deductible. (GC Exh. 27, 28.)12 Maitland gave undisputed 10
testimony that the HAP PPO plan was a “richer” benefit plan than the BCN HMO plan which
replaced it. (Tr. 90.) Although the BCN HMO plan has the same medical coverage as the HAP
PPO, it costs employees more in out-of-pocket expenses.13 Maitland gave Respondent the final
BCN HMO plans to review on about December 19, and Respondent signed documents
committing to the plans on December 24. (Tr. 87-88.) The BCN HMO plan was effective 15
January 1, 2014, for all of Respondent’s employees.
D. Notice to Unions of Changes in Employee Health Insurance Plan
After being told by unnamed sources that BCBS was notifying employers that their 20
health plans would be terminated effective January 1, 2014, in June or July Reed asked
Ponczocha if Respondent had received a termination notice and was told no. The conversation
occurred in a meeting called by Ponczocha in the hospital’s boardroom. In attendance were
Reed, Ponczocha, Chiaravalli, Anzures, and other unnamed individuals.
25
In July or August, Reed attended another meeting initiated by Respondent with
Ponczocha, Anzures, Brabson, Lewis, and Gamble. Reed again asked Ponczocha if Respondent
had been notified of any possible year end changes or cancellations in the employees’ healthcare
plans. Again, Respondent’s management told him they were unaware of any changes or
cancellations being proposed by their current health insurance plans. 30
Another meeting was called by Respondent in September. Those in attendance were
Reed, Ponczocha, Short, Anzures, Brabson, Lewis, and Gamble. At the end of the meeting,
Reed inquired about the status of the employees’ healthcare plans going into 2014 and whether
Respondent had verified the plan year. Respondent had not verified the plan year, and 35
Ponczocha denied receiving notice of plan changes or cancellation from their health insurance
plans.
In November, Ponczocha and Short organized a meeting with representatives from the 3
unions to discuss modifying the contract language on the utilization of compensatory time off 40
(CTO). Respondent’s attorney, Chiaravalli, also attended the meeting. Ponczocha and

11 Lucander was Respondent’s CFO at the time Maitland sent the email.
12 Credible testimony was offered at the hearing to show that GC Exh.28 was signed and dated in
2013. (Tr.95.)
13 The PPO network allows employees the option to choose medical providers outside of the network,
usually at an increased out-of-pocket cost. Under the HMO plan, employees are limited, with few
exceptions, to treatment by healthcare professionals within the HMO network.
JD─50─14
6
Chiaravalli explained that the current agreement on the usage of CTO was creating a financial
difficulty for Respondent. Reed noted, “…[T]hey asked us to enter into an agreement as to how
many days [employees] would be allowed to use for the month of November and December for
CTO.” (Tr. 42.) Ultimately, the unions agreed to modify the contract on employees’ utilization
of CTO. After addressing the CTO issue, Reed again asked if Respondent was going to discuss5
possible changes to the healthcare plans, and Ponczocha responded “they were okay with
healthcare, they were just focused on this CTO at the time.” (Tr. 43.)
On December 16, Reed received an email from Ponczocha noting that a change in the
employees’ healthcare carrier and a significant increase in employees’ premium contribution was10
required. The email continued, “We anticipate making a final decision [on changes to the
employees’ healthcare plan] by December 20, 2013, per the memo of understanding (MOU)
recently signed.” (GC Exhs. 8, 9, & 10.) Ponczocha offered to meet with Reed if he had
concerns regarding the changes. Reed had not signed a MOU addressing healthcare.
Nonetheless, he sent Ponczocha a response via email and regular mail that MAP would not agree 15
to the proposed healthcare changes because it was not interested in increasing its members’
healthcare costs, and there was a current CBA which MAP expected Respondent to honor.14 (GC
Exh. 11, 12.) Soon after sending the correspondence to Ponczocha, Reed went on vacation until
January 6, 2014.
20
In mid-December, Ponczocha approached Anzures in the lobby and informed him that he
was scheduling a meeting with the union representatives to discuss possible changes to the
employees’ health insurance plan.15 Ponczocha, Maitland, Short, Gamble, Lewis and Anzures
attended the meeting where they were informed that employees’ current health insurance would
lapse December 31, but Respondent was trying to obtain new coverage for them. The attendees 25
were not given details of the upcoming changes.
On December 26, Ponczocha sent an email to Reed, Brabson, Gamble, and Chiaravalli
notifying them of a meeting to be held on December 30, to discuss “the 2014 Benefit Plan and
employee contribution levels.” (GC Exh. 13.) Reed did not receive the email until he returned 30
from vacation. Consequently, he was unable to attend the meeting but Anzures went in his

14 Reed provided undisputed testimony that the CBA between MAP and Respondent gives
Respondent the right to change the plan design but any changes must provide benefits of similar or equal
value to the current plan. Reed also testified that under the CBA in effect during the period at issue,
Respondent was not allowed to change the premium sharing. His testimony was corroborated by
Maitland, who explained that although the health insurance carrier changed, the benefit coverage
remained the same as under HAP. Likewise, the evidence is undisputed that the BCN HMO plan resulted
in increased out-of-pocket expenses to the employees. (Tr. 83-86, 89-90; GC Exhs. 7, 18, 22, 25, 26. )
15 Respondent argues Anzures credibility as a witness is “suspect as he testified he was present in
mid-December (when Reed was not yet on vacation) and also testified that he was not presented with any
information regarding the new health insurance plan that was being proposed at the mid-December
meeting (even though Reed had been given GC EX 8, 9, and 10, detailing the plan on December 16).” (R
Br. 3-4.) Respondent is correct that the record does not explain why Anzures attended the mid-December
meeting without Reed. However, this fact is not a persuasive reason for discrediting Anzures testimony.
Key portions of his testimony were corroborated by Reed, Maitland, and Brabson. Also, there is no
evidence that in the mid-December meeting Anzures received any of the documents that Ponczocha sent
to Reed via email on December 16. Therefore, I find no basis for discrediting his testimony.
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7
absence. Ponczocha, Kumar, Chiaravalli, Brabson, Lewis, Gable, and Anzures attended. During
the meeting, the union representatives were given the enrollment worksheet for the BCN core
and buy-up plans and a chart detailing the benefits provided by the two plans. The worksheet
also contained the new employee premium deductibles. Ponczocha tried to get the Union
representatives to sign a document agreeing to the changes on behalf of their respective 5
memberships. (GC Exh. 20.) None of the Union representatives would sign the agreement, and
they complained to Ponczocha that the initial proposal of an employee 50% premium co-share
was too costly. After the meeting, Anzures shared with Reed the information Respondent gave
them at the meeting about the health insurance changes.
10
On January 6, 2014, Reed received an email from Ponczocha proposing a January 8,
2014, meeting with management and the Union representatives. Chiaravalli and Kumar were
also copied on the email. In attendance at the meeting were Ponczocha, Maitland, Reed,
Anzures, Lewis, Brabson, Gamble, and possibly Hanson. Ponczocha began the meeting with his
belief that they were solidifying an agreement he thought had been reached with the Unions at 15
the December 30 meeting. Since Reed had not been present at that meeting and Anzures could
not enter into agreements on his or the membership’s behalf, Reed made it clear to the meeting’s
participants that he had not consented to any agreement. Brabson echoed Reed’s objections to
the agreement referenced by Ponczocha. (Tr. 149-153.) There is no evidence that any of the
union representatives agreed to sign or signed a MOU accepting Respondent’s proposed changes 20
to the employees’ healthcare plan and premium contributions.16 Ponczocha informed them that
employees’ healthcare premiums were fully paid for by Respondent only through January 1,
2014. Shortly after the meeting with Ponczocha and Maitland, Reed met with his membership
about Respondent’s proposed health plan changes, and they informed him that they were
unanimously opposed to modifying their current CBA to allow changes to the health insurance 25
plan.
On January 20, 2014, Ponczocha held another meeting with Reed, Anzures, Brabson,
Lewis, Gamble, Hanson, and Maitland to again discuss the healthcare changes. During the
meeting, Reed learned that Respondent had started deducting the new increased premium 30
amounts from employee paychecks. 17 He informed Ponczocha that his members had roundly
rejected any premature changes to their CBA. Ponczocha became distraught and stated “he
knew that this wasn’t handled properly, that he did not meet with the unions and keep – bring

16 Reed testified that the MOU signed by the unions and referenced by Ponczocha was to allow
Respondent to temporarily furlough certain employees for the months of November and December and
restrict the use of CTO. The MOU expired on December 31. It did not address the issue of employee
health insurance plans. (Tr. 65-66). Although Respondent’s attorney argued that the MOU pertained to
Respondent’s proposed healthcare changes, he failed to present substantive evidence in support.
17 Prior to January 1, 2014, Anzures was covered by the HAP plan. Although he did not sign-up for
the new health insurance plan, Respondent began deducting the higher premium amount from his
paycheck for the pay period January 5 to 18, 2014. (GC Exh. 24.) Anzures also attended another meeting
held by Ponczoch on January 3, 2014, to discuss modifications Respondent made to the employees’
health plan. Instead of Respondent’s initial proposal of employee contribution towards premiums of
50%, Respondent changed it to 45% for singles and 35% for families. Respondent notified them that the
changes had already been implemented and the employees had until January 10, to sign up for the new
plan. Respondent also informed them that it would pay 100% of the employees’ premium costs for
January 2014.
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them within the fold in the circle in handling this matter, that he made the change without
speaking and negotiate (sic) with the unions like he was supposed to, but he was doing it as
directed by the owners, the board of directors.”18 (Tr. 60.) The meeting ended without a
resolution. Following the meeting, Reed sent Ponczocha an email demanding that Respondent
stop violating the CBA as it pertains to the healthcare provision. This was the last discussion he 5
had with Respondent’s management team before filing two grievances on the issue on January
13 and 28, 2014. (R Exh. 1, 2.)
Brabson provided corroborating evidence that Respondent and the union representatives
had several meetings where the possibility of healthcare change was discussed. He attended the 10
December 30, meeting because Lewis called him on December 17 or 18, to tell him that
Respondent had notified the employees that it was changing their health insurance plan. Prior to
December 30, Respondent had also sent him an email explaining that it was experiencing
financial difficulties and needed to increase employee health insurance premium contributions to
50% for full-time employees, and change the healthcare plan it offered to them.19 (GC Exh. 17.) 15
Brabson contacted Ponczocha to demand Respondent not implement any changes until
Ponczocha had met with the employees’ unions. Ponczocha agreed to meet on December 30,
with representatives from MAP, AFSCME, UAW, and Kumar. During the meeting, the Union
representatives questioned Ponczocha about Respondent’s proposed changes to the healthcare
plans. Ponczocha told them that Respondent was undergoing a financial crisis which20
necessitated the changes. The Unions asked Respondent to provide them with financial
information to confirm that the changes were financially necessary. Respondent refused to
provide the documentation and claimed “their computers were in a shambles or whatever and
they couldn’t pull the information up and they couldn’t get us the information.” (Tr. 142.)
Brabson confirmed that none of the Union representatives ever agreed to Respondent’s proposed 25
healthcare changes.
As previously noted, in the January 8, 2014, meeting the attendees rehashed the subject
of Respondent’s change to the healthcare insurance, and again the union did not get specific
information from Respondent on its financial condition. By the end of the meeting, the Unions 30
continued to agree to the health insurance changes. Nonetheless, Respondent implemented the
amendments.
III. DISCUSSION AND ANALYSIS
35
A. LEGAL STANDARDS
Section 8(d) of the Act provides that the employer and the employees’ representative
have a mutual obligation to bargain collectively and as such must meet at reasonable times and
confer in good faith with respect to “wages, hours, and other terms and conditions of 40
employment, or the negotiation of an agreement or any question arising thereunder, and the

18 Anzures also provided undisputed testimony that at one of the meetings called by Respondent,
Ponczocha told the Union representatives he “was upset that the Hospital had never made an effort to
speak with the unions on the insurances and how they had basically just signed us all up without our
consent; it wasn’t something that sat right with him.” (Tr. 122.)
19 Brabson could not recall the deductible amount part-time employees would have to pay.
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execution of a written contract incorporating any agreement reached if requested by either
party…” The section goes on to note:
“That where there is in effect a collective-bargaining contract covering employees in an
industry affecting commerce, the duty to bargain collectively shall also mean that no 5
party to such contract shall terminate or modify such contract, unless the party desiring
such termination or modification-
(1) serves a written notice upon the other party to the contract of the proposed
termination or modification sixty days prior to the expiration date thereof, or in
the event such contract contains no expiration date, sixty days prior to the time it 10
is proposed to make such termination or modification;
(2) offers to meet and confer with the other party for the purpose of negotiating a
new contract or a contract containing the proposed modifications;”20
The good faith standard is used by the courts and the Board to determine if the parties have met 15
their obligation to bargain under the Act. The Board takes a case-by-case approach in assessing
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 deciding if the employer has satisfied its obligation to confer in good 20
faith).
Likewise, an employer to a contractual agreement cannot unilaterally take certain actions
that result in changes to the terms and conditions of employment unless there has been a “clear
and unmistakable” waiver of the union’s right to bargain over the changes. Pavilions at 25
Forrestal, 353 NLRB 540 (2008) (impasse irrelevant where employer unilaterally implemented
new health insurance plan without providing union information, notice and opportunity to
bargain concerning new plan); Laurel Bay Health & Rehab. Ctr., 353 NLRB 232 (2008)
(employer prematurely declared impasse and unilaterally implemented changes in health
insurance and other benefits where union requested and employer agreed to schedule subsequent 30
bargaining session, union 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 35
(2000); Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 708 (1983).
In order to find that Respondent made unilateral changes to an employee benefit in
violation of the Act, it must be shown that (1) material changes were made to the employees’
terms and conditions of employment; (2) the changes involved mandatory subjects of bargaining; 40
(3) Respondent failed to notify the Union of the proposed changes; and (4) the Union did not
have an opportunity to bargain with respect to the changes. Alamo Cement Co., 281 NLRB 737
(1986); Beverly Health & Rehab. Servs., Inc., 317 F.3d 316 (D.C. 2003) (unilaterally replacing
HMO coverage).

20 Because the collective bargaining involves employees of a health care institution, section 8(d)(1)
notice is 90 days pursuant to 8(d)(4)(A).
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B. Complaint Allegation5
1. Respondent’s Request to Defer the Matter to Arbitration
Prior to addressing the merits of the allegation at issue, I must first rule on the
Respondent’s motion for dismissal and deferral of the instant case to the parties’ 10
grievance/arbitration procedure.21 See L.E. Myers Co., 270 NLRB 1010, 1010 fn. 2 (1984).
Under Collyer Insulated Wire, 192 NLRB 837 (1971) and United Technologies, 268
NLRB 557, 558 (1984), deferral of an unfair labor practice charge to the parties’
grievance/arbitration procedure is appropriate when: 15
[T]he dispute arose within the confines of a long and productive collective-bargaining
relationship; there is no claim of employer animosity [or “enmity”] to the employees’
exercise of protected rights; the parties’ agreement provides for arbitration of a very
broad range of disputes; the arbitration clause clearly encompasses the dispute at issue; 20
the employer has asserted its willingness to utilize arbitration to resolve the dispute; and
the dispute is eminently well suited to such resolution [by arbitration].
United Technologies, supra at 558. As the moving party, Respondent bears the burden of
proving that deferral to the parties’ contractual grievance/arbitration procedure is appropriate. 25
Rickel Home Centers, 262 NLRB 731, 731 (1982).
Respondent has failed to support its burden of proof. Some evidence in the case support
deferral. Since 2007, Respondent and the Charging Union have had a stable and productive
collective bargaining relationship; there is no claim of animosity to employees’ exercise of their 30
Section 7 rights; and Respondent is willing to submit to arbitration. However, I find that the
substantive question in this case is not a question of contract interpretation that is well suited for
resolution through arbitration.
Article 16.1 of the CBA reads in part: 35
The Hospital reserves the right to amend the plan design of health insurance benefits
other than the premium co-share schedule listed below. The Union will be given notice of
any plan design amendments.
40
The CBA sets out in unambiguous language the employees’ share of the health insurance
premium and that Respondent does not have the right to unilaterally change the premium co-
share schedule. While the parties’ may dispute the interpretation of the contract related to
amending the plan design, the contract language addressing premium co-share needs no
interpretation. Therefore, the special expertise of an arbitrator is unnecessary to interpret the 45

21 See Sec. 102.35(a)(9) of the Board’s Rules.
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contract. Caritas Good Samaritan Med. Ctr., 340 NLRB No. 6 (2003). Addressing the issue of
the Respondent’s right to amend the plan design, I likewise find it is not appropriate for
arbitration. Although Respondent eventually gave the Charging Union notice of the health plan
design amendments, it did not do so until after their implementation. Therefore, the violation of
the contract appears so obvious that there can be no contrary interpretation by an arbitrator. See5
R.T. Jones Lumber Co., 313 NLRB 726, 727 (1994); Oak Cliff-Golman Baking Co., 202 NLRB
614 (1973); Alfred M. Lewis, Inc., 229 NLRB 757 (1977), enforced in pertinent part, 587 F.2d
403, 408 (9th Cir. 1978). Further, the contract interpretation as it relates to the health plan
design is so intertwined with Respondent’s unilateral change in the employees’ premium
contributions that they cannot be separated. Consequently, I find that deferring this case to 10
arbitration would be inappropriate. Thus, the Respondent’s motion for dismissal and deferral to
arbitration is denied.
2. Respondent’s Implementation of Changes to Health Insurance Plan
15
The General Counsel alleges that Respondent violated Section 8(a)(1) and (5) of the Act
when, since about January 1, 2014, without prior notice to the Union and without giving the
Union an opportunity to bargain with Respondent, Respondent unilaterally changed its health
care insurance plan to a dissimilar plan, and changed the employee premium contribution
percentage. (GC Br. 3.) Respondent contends that the complaint should be dismissed because20
the allegations “lack merit”. (R Br. 1)
For the following reasons, I conclude that since about January 1, 2014, Respondent has
unilaterally changed the employees’ health insurance plan and health insurance premium
contribution without providing the Union prior notice, and an opportunity to bargain over the 25
change.
The law is well-settled that an employer may not change the terms and conditions of
employment of represented employees without providing their representative with prior notice
and an opportunity to bargain over such changes. See NLRB v. Katz, 369 U.S. 736, 747 (1962). 30
In Axelson, Inc., 243 NLRB 414, 415 (1978), the Board defined 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, 35
parameters have been established, although not quantified. The touchstone is whether or
not the proposed clause sets a term or condition of employment or regulates the relation
between the employer and its employees.
The duty to bargain only arises if the changes are “material, substantial and significant.” 40
Alamo Cement Co., at 738; Flambeau Airmold Corp., 334 NLRB 165, 171 (2001). The General
Counsel bears the burden of establishing this element of the prima facie case. N. Star Steel Co.,
347 NLRB 1364, 1367 (2006). Moreover, the Board has consistently held that change to
employees’ health benefits is a mandatory subject of bargaining and, hence, a unilateral change
which constitutes a refusal to bargain. Mid-Continent Concrete, 336 NLRB 258, 259 (2001). See 45
also BP Amoco Corp. v. NLRB, 217 F.3d 869 (D.C. Cir. 2000) (modifications to health plan).
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12
In June or July Respondent notified its benefits coordinator to find a new health care plan
for its employees that would not cost it more than $70,000 per month to purchase. Maitland
admitted that the BCN HMO plan Respondent purchased is not as “rich” as the HAP PPO plan,
and he admits and the documents show that the costs the employees, including the security
officers, are required to pay towards their health insurance premiums substantially increased 5
under the new plan. (GC Exh. 7, 19, 23-28) The new plan requires the employees to use a
healthcare provider in the BCN HMO network, whereas under the former HAP PPO plan
employees could visit healthcare providers whether inside or outside the HAP PPO network.
Although choosing someone outside the PPO network under the NGS and HAP PPO plans could
potentially increase an employee’s out of pocket expenses, the BCN HMO plan did not even 10
afford the employee the option of choosing a healthcare provider outside the BCN HMO
network. Thus, their options for choosing medical providers were more limited under the BCN
HMO plan and their premium co-shares were more expensive. Accordingly, I find that material
changes were made to the employees’ terms and conditions of employment.
15
Moreover, I conclude that Respondent failed to notify the Charging Union prior to
making the changes to the employees’ health insurance plan. It is undisputed that BCBS notified
Respondent in June or July 2013, it was terminating the employees in the plan effective January
1, 2014. However, there is no evidence that prior to December 16, Respondent notified the
Charging Union of the impending termination. The evidence is undisputed that on December 24, 20
Respondent entered into a contract to change the employees’ health insurance plan and premium
contribution costs effective January 1, 2014. The evidence also established that this occurred
prior to Respondent meeting with MAP or any of the other union representatives informing them
that the contract with BCN HMO had been signed.
25
Next, I turn to the question of whether after notifying the Charging Union of the
unilateral change to the health insurance plan if the Charging Union was provided a reasonable
opportunity to bargain over the change. Based on the evidence, I conclude that Respondent did
not provide the Union an opportunity to bargain over the change prior to its implementation.
30
Despite Respondent’s denials to Reed that it had no plans to change health benefits, it had
already made a decision to do so in June. Although Respondent notified Reed on December 16,
of proposed changes to the plans, the contract between BCN HMO and Respondent was signed
on December 24, about a week before Respondent met with the unions to notify them of the
contracted changes. The unilateral change at issue was accomplished approximately 1 week35
prior to its notification to the Charging Union. More importantly, it is undisputed that
Ponczocha admitted that changes to the health insurance plan were made prior to speaking and
negotiating with the unions.22 Although Respondent held a series of meetings with MAP and the
other unions to discuss the health care changes, they were conducted after BCN HMO had been
contracted to be the new carrier, and a decision had been made to increase the employees’40
contribution towards health insurance premiums. Also, at the last meeting with the unions on

22 Respondent did not call Ponczocha as a witness to dispute Anzures’ and Reed’s testimony that he
admitted he made the changes to the health plan without notifying and negotiating with the unions. (Tr.
60, 121). Finding nothing in the record to discredit Anzures’ and Reed’s testimony on this point, I have
accepted it as an undisputed fact.
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13
January 8, Respondent had already started deducting increased amount of money from
employees’ paychecks to pay for the new health plan.
Based on the evidence of record, I find that Respondent violated Section 8(a)(1),(5) and
8(d) of the Act, when since January 1, 2014, it unilaterally changed its health insurance plan and 5
the employee premium contribution percentage without prior notice to the Charging Union and,
or giving the Charging Union an opportunity to bargain over the issue.
CONCLUSIONS OF LAW
10
1. The Respondent, Oakland Physicians Medical Center, LLC d/b/a Doctors’ Hospital of
Michigan, is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7)
of the Act and has been a health care institution within the meaning of Section 2(14) of the Act.
2. The Michigan Association of Police is a labor organization within the meaning of 15
Section 2(5) of the Act.
3. By unilaterally and without prior notice to the Charging Union changing its health care
insurance plan to a dissimilar plan, and by changing the employee premium contribution
percentage, the Respondent has violated Section 8(a)(1),(5) and 8(d) of the Act.20
4. The above violations are unfair labor practices that affects commerce within the
meaning of Section 2(6) and (7) of the Act.
10. The Respondent has not violated the Act except as set forth above.25
REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I shall
order it to cease and desist therefrom and to take certain affirmative action designed to effectuate 30
the policies of the Act.
The Respondent having discriminatorily made changes in the employees’ health care
insurance plan and the employees’ premium contribution percentage must rescind any and all
changes to their health insurance benefits and make them whole for any loss of earnings and 35
other benefits they suffered as a result of the discrimination against them from the date of the
discrimination to the date remedy is effectuated. Backpay shall be computed in accordance with
F.W. Woolworth Co., 90 NLRB 289 (1950), with interest as provided in New Horizons for the
Retarded, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical
Center, 356 NLRB No. 8 (2010) enf. denied on other grounds sub. nom., Jackson Hospital Corp. 40
v. NLRB, 647 F.3d 1137 (D.C. Cir. 2011).
Respondent shall file a report with the Social Security Administration allocating backpay,
if applicable, to the appropriate calendar quarters. Respondent shall also compensate the
employees for the adverse tax consequences, if any, of receiving one or more lump-sum backpay 45
awards covering periods longer than 1 year, Don Chavas, LLC d/b/a Tortillas Don Chavas, 361
NLRB No. 10 (August 8, 2014).
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14
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended23
5
ORDER
The Respondent, Oakland Physicians Medical Center, LLC d/b/a Doctors’ Hospital of
Michigan, Pontiac, Michigan, its officers, agents, successors, and assigns, shall
10
1. Cease and desist from
(a) Unilaterally and without prior notice to the Michigan Association of Police changing
its health care insurance plan to a dissimilar plan, and changing the employee premium
contribution percentage. 15
2. Take the following affirmative action necessary to effectuate the purposes and policies
of the Act.
(a) Within 14 days from the date of the Board’s Order, rescind any and all changes to 20
their health insurance benefits and premium contribution percentages.
(b) Make the employees whole for any loss of earnings and other benefits they suffered
as a result of the discrimination against them, in the manner set forth in the remedy section of the
decision.25
(c) Within 14 days from the date of the Board’s Order, rescind any and all changes to the
employees’ health insurance benefits and premium contribution percentages, and within 3 days
thereafter notify the employees in writing that this has been completed.
30
(d) 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 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 the amount of backpay due under the terms of this Order.35
(e) Within 14 days after service by the Region, post at its facilities in Pontiac, Michigan,
copies of the attached notice marked “Appendix.”24 Copies of the notice, on forms provided by
the Regional Director for Region 7, after being signed by the Respondent’s authorized

23 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 purposes.
24 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.”
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15
representative, shall be posted by the Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to employees and members are
customarily posted. In addition to physical posting of paper notices, the 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 5
means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not
altered, defaced, 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 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 employed by the Respondent at any time since 10
January 1, 2014.
(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.15
Dated, Washington, D.C. August 15, 2014
20
____________________________
Christine E. Dibble (CED)
Administrative Law Judge
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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 behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT refuse to make any changes in wages, hours and working conditions,
including health insurance, that are set forth in our collective bargaining agreement with
the Michigan Association of Police without the consent of the Michigan Association of
Police.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed to you by Section 7 of the Act.
WE WILL NOT in any like or related manner refuse to bargain collectively and in good
faith with the Michigan Association of Police.
WE WILL, within 14 days from the date of the Board’s Order, rescind any and all
changes to your terms and conditions of employment that we made without the consent of
the Michigan Association of Police.
WE WILL, make whole employees for any loss of earnings and other benefits
suffered as a result of the discrimination against them, in the manner set forth in the
remedy section of the decision.
WE WILL, upon request, bargain collectively and in good faith with the Michigan
Association of Police as the exclusive collective bargaining representative of the Unit.
WE WILL, within 14 days from the date of the Board’s Order, rescind any and all
changes to the employees’ health insurance benefits and premium contribution
percentages, and within 3 days thereafter notify the employees in writing that this has
been completed.
JD─50─14
OAKLAND PHYSICIANS MEDICAL CENTER, LLC
d/b/a DOCTORS’ HOSPITAL OF MICHIGAN
(Employer)
DATED: __________ BY__________________________________________
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
477 Michigan Avenue, Room 300, Detroit, MI 48226-2543
(313) 226-3200, Hours: 8:15 a.m. to 4:45 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/07-CA-120931 or by using the QR code
below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations
Board, 1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (313) 226-3244.