Saint Marys Hospital

National Labor Relations Board - Board Decisions

Mar 26, 1982

260 N.L.R.B. 1237 (N.L.R.B. 1982)

SAINT MARYS HOSPITAL
Saint Marys Hospital and Hotel, Hospital, Restau-
rant & Tavern Employees Union Local 21, af-
filiated with Hotel & Restaurant Employees and
Bartenders International Union, AFL-CIO and
International Union of Operating Engineers,
Local 756, AFL-CIO. Cases 18-CA-6886 and
18-CA-6913
March 26, 1982
DECISION AND ORDER
BY MEMBERS JENKINS, ZIMMERMAN, AND
HUNTER
On October 21, 1981, Administrative Law Judge
Jerry B. Stone issued the attached Decision in this
proceeding. Thereafter, Hotel, Hospital, Restaurant
& Tavern Employees Union Local 21, affiliated
with Hotel & Restaurant Employees and Bartend-
ers International Union, AFL-CIO, filed excep-
tions and the Employer filed a reply brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and
to adopt his recommended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
'We note that the case cited by the Administrative Law Judge at fn.
20 of his Decision was adopted by the Board pro forma in the absence of
exceptions.
DECISION
STATEMENT OF THE CASE
JERRY B. STONE, Administrative Law Judge: This pro-
ceeding, under Section 10(b) of the National Labor Rela-
tions Act, as amended, was heard pursuant to due notice
on June 22, 1981, in Rochester, Minnesota.
The charge in Case 18-CA-6886 was filed on October
1, 1980. The first amended charge in Case 18-CA-6886
was filed on October 31, 1980. The charge in Case 18-
CA-6913 was filed on October 14, 1980. The first
amended charge in Case 18-CA-6913 was filed on Octo-
ber 30, 1980. The order consolidating cases was issued
on November 10, 1980. The consolidated complaint in
this matter was issued on November 10, 1980.
The essential issues concern whether Respondent has
refused to bargain with the Unions concerning a dental
plan for several bargaining units, or whether the Unions'
right to bargain as to such plan was waived by the bar-
gaining for the existing collective-bargaining agreements.
All parties were afforded full opportunity to partici-
pate in the proceeding. Briefs have been filed by Re-
spondent and the General Counsel and have been consid-
ered.
Upon the entire record in the case and from my obser-
vation of witnesses, I hereby make the following:
FINDINGS OF FACT
I. IHI: BUSINESS 01 THE FMPIOYER
The facts herein are based on the pleadings and admis-
sions therein.
Saint Marys Hospital, Respondent, a Minnesota corpo-
ration, with an office and place of business in Rochester,
Minnesota, herein called Respondent's facility, has been
engaged as a health care institution in the operation of a
hospital providing inpatient and outpatient medical and
professional care services for acutely ill patients. During
the calendar year ending December 31, 1979, Respond-
ent, in the course and conduct of its business operations
described above, derived gross revenues in excess of
S250,000.
During the period of time described above, Respond-
ent, in the course and conduct of its business operations
described above, purchased and received at its Roches-
ter, Minnesota, facility supplies, goods, and materials
valued in excess of $5,000 directly from points outside
the State of Minnesota.
Saint Marys Hospital was founded in 1883 and opened
for operations in 1889. At such time the Hospital was op-
erated by a religious order affiliated with the Roman
Catholic Church.' The operation of the Hospital contin-
ued as such until 1967. In 1967 Saint Marys Hospital
became self-incorporated, separate from the above-re-
ferred-to order. The articles of incorporation provided
that the Hospital own its own assets, and could sell,
transfer, or take whatever actions as might be necessary
in order to conduct the business of running a Catholic
hospital. Under the 1967 incorporation, Saint Marys Hos-
pital is basically free to operate as it sees fit. In the event
that Saint Marys Hospital goes out of business, there are
certain conditions which must be met in accordance with
the laws of the State of Minnesota as to disposal of
assets, and proceeds are to revert back to the religious
order. Before there can be a merger of Saint Marys Hos-
pital with another health care institution, transfer of
ownership would require approval by the referred-to re-
ligious order. Otherwise, Saint Marys Hospital operates
on the basis that its administrator is responsible to the
board of trustees as a tax exempt corporation.
Saint Marys Hospital has 15 trustees. One of such
trustees must be the president of the religious order.
Other trustees must be elected and may be members of
'Said order is described in the record as "Sisters of St Francis of the
Third Order of Assisi" and "Third Order of the Sisters of St Francis of
Assisi.
260 NLRB No. 175
1237
DECISIONS OF NATIONAl LABOR REI.ATIONS BOARD
the religious order. At the time of the hearing of this
matter, 5 of the 15 trustees were members of the reli-
gious order, including the president. Saint Marys Hospi-
tal employs employees who are not of the Catholic faith.
Saint Marys Hospital also treats patients who are not of
the Catholic faith.
Saint Marys Hospital, in carrying out its operations,
follows the ethical directives of the Catholic Health As-
sociation, a set of operational directives for all Catholic
hospitals. Among the policies and principles involved in
the operation of the Hospital is a policy that the Hospital
will not perform abortions and will not knowingly,
through its health benefit plan, pay for or provide the
medical treatment or hospitalization required for abor-
tions.
Saint Marys Hospital is staffed exclusively by physi-
cians of the Mayo Clinic located in Rochester, Minneso-
ta. Its patients are admitted by reference from the Mayo
Clinic or by entrance through the emergency room
which is under Mayo Clinic physician coverage. Saint
Marys employs around 3,400 employees.
Saint Marys has had collective-bargaining agreements
concerning its employees since 1945. Originally, there
was one union representing employees. Such union was
Hotel, Hospital, Restaurant & Tavern Employees Union
Local 21, affiliated with Hotel & Restaurant Employees
and Bartenders International Union, AFL CIO. Around
1952 the employee unit represented by Local 21 appar-
ently broke into several units with Local 21 continuing
to represent the largest unit, 2 with International Union of
Operating Engineers, Local 756, AFL-CIO, representing
a unit of approximately 20 power plant employees, and
with Local 20023 representing a unit of approximately 55
maintenance employees.
Saint Marys had collective-bargaining agreements with
Local 21 from 1945 to 1952 and since 1952 has had col-
lective-bargaining agreements with Locals 21, 756, and
2002. The contracts with Local 21, since 1961, have been
for 3-year terms.
Saint Marys has bargained with Locals 21 and 756
concerning medical benefits in the past and has agreed to
certain provisions in collective-bargaining agreements
concerning medical benefits. Such bargaining concerning
medical benefits has not concerned the providing of in-
surance or medical service for abortions.
The only contention against the assertion of jurisdic-
tion by the Board over Respondent is revealed by the
following excerpts from Respondent's brief.
Saint Marys Hospital contends that application of
the National Labor Relations Act to Saint Marys
Hospital would unconstitutionally impact upon the
Hospital in its free exercise of its religious princi-
ples, in violation of the First Amendment of the
Constitution of the United States, and in that con-
text the Congress did not intend that the Act apply
to a hospital operated by a religious order. The con-
trolling case appears to be N.L.R.B. v. The Catholic
I Local 21 represented approximately 650 employees. Local 21's unit
consisted of service personnel and certified operating room technicians
I Referred to in the brief as Local 2002, affiliated with Painters, Deco-
rators and Paperhangers of America
Bishop of Chicago, 440 U.S. 367, 99 S. Ct. 1313 . . .
85 LC Para. 11,163 (1979). The Supreme Court held
that the Statute did not apply to the Catholic
Schools of Chicago, the implication being that if the
Statute did apply, it would unconstitutionally
impact upon the religious instruction carried out in
the school system. In the case of Saint Marys Hos-
pital, its guiding principles and tenets, as an expres-
sion of its religion, bar it from providing or paying
for abortions. Yet the provisions of a medical bene-
fit plan which provided medical care to its employ-
ees would clearly be a mandatory subject of bar-
gaining under the Act. To force Saint Marys to bar-
gain on the inclusion of abortion related care in its
Medical Benefit Plan would in that instance uncon-
stitutionally impact upon and conflict with its exer-
cise of its religious principles. Under the principles
expressed in the Bishop of Chicago case and in St.
Elizabeth Community Hospital v. V.L.R.B., 626 F.2d
123, 89 LC Para. 12,223 (9th Cir. 1980), remanding
237 NLRB No. 118, 1978 C.C.H. NLRB Para.
19,612 the Board should recognize that the Statute
does not apply to Saint Marys Hospital and that the
Board has no jurisdiction over Saint Marys Hospi-
tal. There are, of course, other principles and tenets
of the Catholic religion which govern the operation
of the hospital but the impact of the duty to bargain
upon its expression of its religious principles is
graphically demonstrated by the example of the
provision of medical care and treatment for abor-
tions. Saint Marys Hospital does not provide or pay
for such care. To apply the Statute to Saint Marys
Hospital and require it to bargain on a medical
benefit plan providing such benefits would be un-
constitutional.
Considering the record, the above arguments, the
cases cited therein, and the legislative history of the cov-
erage of nonprofit hospitals under the National Labor
Act, 1974, Public Law 93-360 (S. 3203), I am persuaded
that the Board should assert jurisdiction over the Re-
spondent. A review of the legislative history concerning
coverage of nonprofit hospitals as set forth above clearly
revealed that Congress considered exemption of religious
hospitals from coverage of the Act and rejected such ex-
emption. It is clear that Congress intended that hospitals
not be excluded from the Act because of their religious
status.4 It is well settled that the Board assumes the con-
stitutionality of a statute it is charged with administering
until the contrary is determined.' It also follows that
where congressional intent is clear, the Board will con-
strue such statute in accordance with such clear intent
Presentation of amendments hb Senator Ervin of Nolrth Carolina.
filing of briefs by the Seven Day Adventists, and discussions by senators
and congressmen in the deliberations and arguments over the question of
coverage of church supported hospitals and the question of church doc-
trine, and the voting on such amendments reseal the clear intent of Con-
gress teo include religious hospitals under coverage of the Act and not to
exempt such hospitals from coverage.
s C'orry lFoam Prodiucts Co. Ilresrtone Foam Products Company. A Divi-
vian o lt)restlon liJre and Rubber Company, 201 NI.RH 273, 274, fn 3
(1973) See also cases cited therein
1238
SAINT MARYS HOSPITAL
and will assume the constitutionality of the statute as
construed until the contrary has been determined by the
courts.
The Supreme Court of the United States in N.L.R.B.
v. The Catholic Bishop of Chicago, 400 U.S. 367 (1979),
did not pass on the constitutional questions presented in
such case. Rather, the Court construed that Congress
had not intended that teachers in church-operated
schools be covered by the National Labor Relations Act
because there was no clear expression of affirmative in-
tention by the Congress in such regard. The Supreme
Court indicated that it would not construe the intent of
Congress to cover such teachers, absent clear affirmation
of intent, when to do so would call upon the Court to
resolve difficult and sensitive questions arising out of
guarantees of religious clauses of first amendment to the
U.S. Constitution.
In the instant case, congressional intent to include cov-
erage of nonprofit religious hospitals under the Act is
clear. None of the cases cited reveals that the Board has
construed congressional intent in a different manner.
Therefore, until a different decision or ruling by the
Board has been made, it is clear that I must find that ju-
risdiction over Respondent should be asserted. 6
Accordingly, it is concluded and found that Respond-
ent is, and has been at all times material herein, an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
II. THE lABOOR ORG(ANIZATIONS INVOLVED 7
Hotel, Hospital, Restaurant & Tavern Employees
Union Local 21, affiliated with Hotel & Restaurant Em-
ployees and Bartenders International Union, AFL-CIO,
is now, and has been at all times material herein, a labor
organization within the meaning of Section 2(5) of the
Act.
International Union of Operating Engineers, Local
756, AFL-CIO, is now, and has been at all times materi-
al herein, a labor organization within the meaning of
Section 2(5) of the Act.
Ill. THE AL.LEGED UNFAIR LABOR PRACTICES
A. The Appropriate Bargaining Units'
1. The classifications of Respondent's employees set
forth in the collective-bargaining agreement between
Local 219 and Respondent effective from April 23, 1979,
through April 22, 1982, constitute a unit appropriate for
purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
0 Under such circumstances, little would be gained by a discussion of
whether or not there is an intrusion or minor intrusion in the religious
affairs or beliefs of the Hospital, or whether any problems can be solved
by practical accommodation.
7The facts are based on the pleadings and admissions therein
The facts are based upon the pleadings, admissions therein, stipula-
tions, and statements narrowing the issues. The parties noted certain res-
ervations which have no effect upon the findings of fact for this proceed-
Ing.
9 Hotel, Hospital, Restaurant & Tavern Employees Union Local 21, af-
filiated with Hotel & Restaurant Employees and Bartenders International
Union, AFL-CIO, will sometimes herein he referred to simply as L.ocal
21.
2. The classifications of Respondent's employees set
forth in the collective-bargaining agreement between
Local 75670 and Respondent effective from June 15,
1979, through June 14, 1982, constitute a unit appropriate
for purposes of collective bargaining within the meaning
of Section 9(b) of the Act.
B. Majority Status
1. At all times material herein, Local 21 has been the
designated exclusive collective-bargaining representative
of Respondent's employees in the unit described above,
and has been recognized as such representative by Re-
spondent. Such recognition has been embodied in succes-
sive collective-bargaining agreements, the most recent of
which is effective by its terms for the period April 23,
1979, through April 22, 1982.
Based on the foregoing, I conclude and find that, at all
times material herein, Local 21, by virtue of Section 9(a)
of the Act, has been, and is, the exclusive representative
of the employees in the unit described above, for the
purpose of collective bargaining with respect to rates of
pay, wages, hours of employment, and other terms and
conditions of employment.
2. At all times material herein, Local 756 has been the
designated exclusive collective-bargaining representative
of Respondent's employees in the unit described above,
and has been recognized as such representative by Re-
spondent. Such recognition has been embodied in succes-
sive collective-bargaining agreements, the most recent of
which is effective by its terms for the period June 15,
1979, through June 14, 1982.
Based on the foregoing, I conclude and find that, at all
times material herein, Local 756, by virtue of Section
9(a) of the Act, has been, and is, the exclusive repre-
sentative of the employees in the unit described above,
for the purpose of collective bargaining with respect to
rates of pay, wages, hours of employment, and other
terms and conditions of employment.
C. Local 21 and Respondent
1. Bargaining history-Background
For some years Local 21 and Respondent have had
collective-bargaining agreements containing provisions
relating to medical benefits for employees. During the
negotiations for the 1976-79 bargaining agreement, Local
21 for the first time made a proposal (in writing) for the
providing of full dental care for employees in the bar-
gaining unit by Respondent. Such proposal was in effect
as follows:' 2
The present medical and surgical plan for em-
ployees in the Bargaining Unit is inadequate. The
cost of services by the Mayo Clinic are such that
" International Union of Operating Engineers. Local 756. AFL-CIO,
shall sometimes be referred to herein simply as ocal 756
" the facts are bhased upon the pleadings, admissions therein, stipula-
tions, and statements narrowing the issues.
'2 Briefs by the parties contain in effect proposed findings of fact.
Where such proposed findings of fact are supported by evidence in the
record and agree with the findings of fact I deem warranted, I have uti-
lized the same as my own, with modifications as may he necessary
1239
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargaining unit employees find themselves in a fi-
nancial condition that doesn't permit them to pay
bills for hospitalization, medical or surgical treat-
ment.
We, therefore, propose that the Employer pro-
vide full medical, surgical, hospitalization, eye and
dental care for all employees and their dependents
at no cost to the employee. Such coverage should
be provided on the 31st day of the employee's serv-
ices to Saint Marys Hospital.
We propose a life insurance and disability plan
for all employees to take effect on the employee's
31st day of employment. We propose that such a
plan will, after thirty (30) days' employment, pro-
vide the employee an amount of life insurance equal
to one (1) year's salary with double indemnity; after
one (1) year of continuous employment provide
each employee with an amount of life insurance
equal to two (2) years' salary with double indemni-
ty, and after two (2) years of continuous employ-
ment provide each employee with an amount of life
insurance equal to three (3) years' salary with
double indemnity.
Like amounts will be paid to disabled employees.
Proof of insurance coverage in accordance with
the Working Agreement will be provided to Local
21 on a monthly basis.
In addition, there were many other proposals. The
parties negotiated to impasse on a number of issues, in-
cluding the issue of the changes to be made in the medi-
cal benefit plan. The Hospital's proposal in 1976 offered
changes in the plan in several major respects, including
the provision of life insurance and disability insurance
but not the provision for dental care. That issue and
many other unresolved issues were submitted to arbitra-
tor Reynolds Seitz for resolution. The proposal of the
Hospital as to changes in the plan, plus the granting of
life and disability insurance, was specifically adopted and
approved by the arbitrator with the consequent rejection
of the additional union demand for dental care.
In 1979, Local 21 gave notice of its intention to open
the negotiations which resulted in the current agreement.
It gave to the Hospital proposals for change which af-
fected every article of the contract and addressed many
separate items. The Union's proposal for changes in the
medical benefit plan at Saint Marys Hospital read as fol-
lows:
Article XVI.
Section 2-We propose that the EMPLOYER
provide full hospitalization, medical & surgical, life
disability, optical and dental insurance to all em-
ployees at no cost to the employee.
During the early bargaining sessions around late Janu-
ary (January 31, 1979) and early February 1979, the par-
ties had discussions concerning Local 21's proposal for
dental care coverage. What occurred is revealed by the
following credited excerpts from Jackson's testimony.
Q. Do you recall whether the subject of dental or
optical insurance for employees came up at either of
these first two meetings?
A. Yes.
Q. What do you recall being said, and by whom?
A. Well, I don't remember how it came about. It
was obvious, to me, what we wanted, but the dis-
cussion did get started and John Wolf, the director
of personnel at the time, said, one, that we don't
have any such benefit at the institution, which of
course I knew.
Secondly, that the institution did not intend to
provide any such benefits unless and until such time
as they had a facility under the roof-I am assum-
ing that he meant under the roof there at Saint
Marys-to provide this benefit.
Also, that the cost was-he did not use this
word, but I took what he said to mean-prohibitive,
that it was a very costly thing.
Those were the objections, and I took them to be
reasons that he would say they were not about to
provide these benefits.
On February 20, 1979, Respondent submitted its pro-
posals concerning hospitalization, medical, and surgical
benefits. Local 21 offered no counterproposals with
regard to these levels of coverage, and the Employer's
proposals were subsequently incorporated into the new
agreement. 13 Jackson credibly testified that the subject of
optical and dental insurance "was mentioned several
times" during the course of negotiations, but that it was
"dealt with rather lightly because it was obvious that the
statements that John Wolf had made earlier were the po-
sition of the Employer." After many negotiating sessions,
a tentative agreement was reached on July 20, 1979,
which reserved four issues to be submitted for interest
arbitration." Prior to the arbitration, however, the par-
ties reached agreement on the remaining issues, and the
new collective-bargaining agreement, effective by its
terms from April 23, 1979, through April 22, 1982, was
dated October 5, 1979, and signed by the parties. This
agreement did not provide for optical or dental coverage
for unit employees.
The contract did not have a "zipper" clause of the
type specifically designed to bar negotiation on any item
mentioned or not mentioned. Some of the evidence pre-
sented in this case was designed to reveal that a specific
bargain had been made concerning use of sick leave and
the withdrawal of the Union's dental care proposal. Such
evidence pertained to notes by the parties as to with-
drawal of certain issues. Suffice it to say, the overall
facts indicate that the parties were confused on June 28,
1979, as to what was being taken care of and as to
whether the Union's dental care proposal was being
withdrawn. "5 In any event, the Union's dental care pro-
"3 All employees, including supervisory personnel, are covered by the
same hospitalization, medical, and surgical plan.
" The overall facts are indicative that the Union's dental care proposal
was abandoned as of around July 20, 1979
'' In view of the overall record, I find Jackson's testimony to appear
more reliable than Wells' as to whether or not the Union's dental care
Continued
1240
SAINT MARYS HOSPITAL
posal, if it were not abandoned as of July 20, 1979, con-
tinued as a proposal until the contract was finally agreed
upon. 16
Subsequent to the above-referred-to contract, the Re-
spondent has not bargained with Local 21 concerning a
dental care plan. There has been bargaining concerning a
change in wage scale. Further, Respondent and Local 21
on occasion in the past have by mutual agreement bar-
gained concerning subjects wherein there was not an ex-
isting obligation to bargain for a change in terms and
conditions. '7
2. The demand for bargaining-the refusal to
bargain
At some point of time, apparently in May or June
1980, Respondent decided to implement a dental insur-
ance plan through Connecticut General Life Insurance" s
for its employees whose conditions of employment were
not covered by collective-bargaining agreements. There-
after, a news bulletin of Saint Marys Hospital, apparently
a newspaper for employees, dated June 1980, volume 39,
no. 6, advised employees of such new benefits. The new
dental care benefits for noncontract employees became
effective on July 1, 1980. Apparently Jackson, repre-
sentative for the Union, learned of such benefits for non-
contract employees. In any event, in 1980, before June
17, 1980, Jackson learned that the Hospital had expanded
its medical benefit plan for nonunion employees by the
addition of a certain amount of dental care and treatment
to the plan through the mechanism of insurance. There-
after on or about June 17, 1980, Jackson transmitted a
letter to the following effect to Respondent.
Mr. John Wolf, Director
Human Resources
Saint Marys Hospital
1216 SW 2nd Street
Rochester, Minnesota 55901
Dear Mr. Wolf:
It has come to our attention that "non-contract"
employees at Saint Marys Hospital of Rochester,
will be provided with a dental insurance plan on
and after July 1, 1980.
proposal was withdrawn on June 28, 1979. I credit Jackson's testimony to
the effect that such proposal was not withdrawn at that time. I discredit
Wells' proposal to the effect that the Union's dental care proposal was
withdrawn at that time. Wells appeared to have little or no independent
recollection that such dental care proposal was withdrawn at that time.
Rather, Wells appears to have interpreted his notes of the events to such
effect. His actual notes merely related as follows: "Sick leave . . . used
for dental, physical, et cetera." "Articles XIII, XIV, XV and XVI-taken
care of." It is obvious that such notation could be notes to indicate
simply an intention by the Respondent to take care of such articles by its
proposal, and not that the Union had withdrawn its proposals. Art XVI
related to the Union's medical (including dental care) proposal.
" It is noted that, as to any unresolved issues, the parties had the right
to submit the same to interest arbitration.
17 However, such subjects of bargaining were of the type that the par-
ties were not free to make unilateral changes (without bargaining).
" The specific dental plan instituted by Respondent on July 1, 1980,
was not discussed with Local 21 or Local 756 at any time dunng the bar-
gaining sessions referred to herein.
During our union contract negotiations the hospi-
tal representatives rejected the proposition for
dental care because "we don't have such benefits
for any of our employees" and that "until we have
a facility for dental we will not be able to consider
such a plan."
Please be advised that Local 21 hereby respect-
fully requests and demands that representatives of
Saint Marys Hospital and representatives of Local
21 meet immediately for the purpose of adding the
dental plan to the Collective Bargaining Agreement.
Yours truly,
Buck Jackson
Business Manager
Local 21
On or about June 26, 1980, Respondent transmitted a
letter to the following effect to Local 21.
Mr. Emery T. Jackson
Business Agent
Hotel, Hospital, Restaurant and Tavern
Employees Union, Local 21
P.O. Box 1196
Rochester, Minnesota 55901
Dear Mr. Jackson:
Your letter of June 17th to Saint Marys Hospital
concerning the dental plan was referred to me for
response.
The contract is not open for negotiations at this
time. As you are well aware, Saint Marys Hospital
has already provided to Local 21 a voluntary in-
crease in compensation and is not interested in fur-
ther negotiations at this time. We will discuss that
issue, along with others, when the contract is
opened for negotiations in 1982.
Very truly yours,
Ronald L. Seeger
D. Local 756 and Respondent
I. Bargaining history-background
For some years, Respondent and Local 756 have had
collective-bargaining agreements containing provisions
relating to medical benefits. On or about March 23, 1979,
Local 756 transmitted the following letter to Respond-
ent.
Mr. Roger E. Wells, Asst. Administrator
Saint Mary's Hospital
Rochester, Minnesota
Dear Mr. Wells:
The expiration date of the present agreement be-
tween St. Mary's Hospital and Local 756 of the In-
ternational Union of Operating Engineers being
June 14, 1979, we hereby give notice of intention to
negotiate wages and fringe benefits in a new agree-
ment for the year starting June 15, 1979.
1241
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respectfully yours:
Michael H. Reilly
Recording Secretary
Local #756 I.U.O.E.
On or about April 19, 1979, Respondent replied to the
Union's March 23, 1979, letter as follows:
Mr. Michael H. Reilly
Recording Secretary
Local #756 I.U.O.E.
4726 Eighteenth Street Southeast
Rochester, Minnesota 55901
Dear Mr. Reilly:
Your letter of March 23 to Saint Marys Hospital
has been referred to me for response.
In reviewing the Agreement, I noted that it re-
quires 90 days' notice for a re-opener and that your
notice was late. However, with the mutual good
will that has existed for many years between your
Union and the Hospital, we feel it would be inequi-
table to insist upon a technical extension of the
Contract without a thorough discussion and review
of the proposals which you have submitted. We are
prepared to commence that review at a mutually
convenient date.
I will phone Mr. Peterson to agree upon a date
to begin that discussion.
Very truly yours,
Ronald L. Seeger
Accompanying Local 756's March 23, 1979, letter, set
out above, was a copy of a letter dated March 22, 1979,
which commenced as follows and included thereafter
specific proposals for the 1979 contract.
Mr. Roger E. Wells
Assistant Administrator
Support Services
St. Marys Hospital
Dear Mr. Wells:
We, the Power plant Employees, are submitting
these proposals for consideration by the Hospital.
We would like a meeting as soon as possible with
the Hospital to discuss these proposals. Mr. Dennis
R. Peterson, Attorney at Law, will be with us at
the negotiations.
In such proposals were proposals for a "Medical Plan"
as set out below.
Medical plan should be completely revised to meet
modern day costs.
A. The outpatient coverage is too low.
B. $50,000 lifetime maximum is too low.
Medical and hospitalization should be covered
100%. Dependent coverage should be paid by the
Hospital. Hospital should have a dental plan for the
employee and the employee's dependents.
Each employee would be given a general physical
once a year at the Mayo Clinic on his anniversary
date.
Respectfully submitted,
Roger W. Martin
Shop Steward
Local #756, I.U.O.E.
The above-referred-to proposal relating to dental care
was discussed at the first bargaining session on May 1,
1979. What occurred is revealed by the following ex-
cerpts from Martin's credited testimony.
Q. Directing your attention to Page 3 of Joint
Exhibit No. 33, would you take a moment to just
look at that, and does that provide, in part, that the
hospital should have a dental plan for the employ-
ees and the employee's attendants.
A. Yes, it does.
Q. Did you discuss that particular proposal at the
first session?
A. Yes, we did.
Q. What do you recall being said and by whom?
A. As we got to this proposal, there was a con-
versation from Mr. Ron Seeger to the effect that
this was a costly proposal, the hospital couldn't fi-
nance it, and also that our membership, being a
small group, couldn't ask for something that the rest
of the employees didn't have, and being that we
were under a blanket coverage, they couldn't give
to us something that the rest of them would want
or they couldn't give to the rest of them.
Q. Do you recall whether there was any reply
from the union's side to that?
A. There was some discussion to the effect that
we were bargaining as our own, single, individual
unit, and it shouldn't be taken into account that
what we got someone else should have and vice
versa. We were in negotiations for ourselves, and
this was a proposal that we thought was beneficial
to our members of the local.
Q. Was there anything further you recall being
said about dental at this first meeting?
A. No, because after that we proceeded on to the
rest of the proposals.
During the May 1, 1979, negotiation meeting, Local
756 requested that the Respondent respond to the
Union's proposal in writing. On May 23, 1979, Respond-
ent's attorney, Seeger, transmitted a letter including Re-
spondent's response to the Union's proposals. The first
paragraph of Seeger's letter was as follows:
You have submitted certain proposals to Saint
Marys Hospital for change in the current working
agreement. At our negotiating meeting you asked
that the Hospital respond to those proposals in writ-
ing. Where no response is made, the proposal is re-
fused. Taking your proposals in order, the Hospital
would propose a complete package settlement as
follows:
1242
SAINT MARYS HOSPITAL
Thereafter, Seeger's letter proceeded with in effect a
breakdown of its response. Respondent's response relat-
ing to the Union's medical benefit (including dental care)
plan was as follows:
BENEFIT PLAN
The Hospital's proposed benefit plan is attached
to this proposal.* We would offer to explain the
changes across the bargaining table or to the entire
group at a convenient time.
* Mr. Wolf will forward the material directly to
Mr. Martin.
Said benefit plan of Respondent was apparently for-
warded around this time, as indicated, to Martin for
Local 756.
On June 4, 1979, Local 756 responded by letter to Re-
spondent's May 23, 1979, counterproposals. In such re-
sponse the Union made some changes in its proposals. As
to Respondent's benefit plan proposal, Local 756 set
forth that, "No written comments will be made on this
proposal at this time, but we are studying the pamphlet
and shall make our proposal at our next meeting."
The question of the Union's dental care proposal was
discussed at the second bargaining session on June 7,
1979. What occurred is revealed by the following cred-
ited excerpts from Martin's testimony.
It would have come up very briefly at the second
meeting, and then only tied in with the major medi-
cal. We got the impression at that first meeting that
the idea of dental coverage was a dead issue, you
know, it was an issue that couldn't be pursued. So,
if at all in the second session we were talking major
medical in that session, it very likely would have
been dealt on very briefly.
Negotiations between Local 756 and Respondent oc-
curred on May 1, June 7 and 13, July 5, 26, 27, and 28,
and August 2, 1979. A collective-bargaining contract was
finally executed by the parties on September 27 and 28,
1979.
As the negotiations proceeded, at some point of time,
the question of Local 756's proposal relating to dental
care became eliminated as an issue. Such is revealed by
the following credited excerpts from Martin's testimo-
ny. '9
Q. Again, we stipulated that the sessions went on
through August 2nd. As the negotiations pro-
gressed, can you tell us what the principal issues
were that remained unresolved between the parties?
A. Yes. The length of contract would have been
a primary proposal, the wages for the next period,
for the length of the next contract would have been
a bargaining point. We had a stipulation in our con-
tract of a classification that the employer wanted to
delete and we wanted to keep, so this was a bar-
gaining point that we discussed.
" Roger Martin, the witness, was a steward for Local 756 and in-
volved in the bargaining for the 1979 contract
We talked about a medical bank for our sick
leave coverage. We talked about some more holi-
days in the floating holiday type of system, and
things of this nature.
On July 20, 1979, the Union gave notice to Respond-
ent of its intent to strike and picket because of the im-
passe reached in negotiations. The Employer's repre-
sentatives filed a petition for a restraining order on
August 1, 1979, with a district court of the State of Min-
nesota. The petition was granted prohibiting the Union
from striking and compelling them to proceed in arbitra-
tion. Negotiations resumed on August 2, resulting in an
agreement on the remaining issues and the membership
acceptance of them on September 28, 1979. The final
agreement contained the medical plan as originally pro-
posed by Respondent and did not include dental care in-
surance.
2. The demand for bargaining-the refusal to
bargain
Local 756 learned of Respondent's granting of dental
care benefits to employees at some point of time prior to
August 11, 1980. Thereafter, on or about August II,
1980, Local 756 transmitted the following letter to Re-
spondent.
Mr. Wayne Spary
St. Marys Hospital
Rochester, MN 55901
Mr. John Wolf
St. Marys Hospital
Rochester, MN 55901
Mr. Roger Wells
St. Marys Hospital
Rochester, MN 55901
Gentlemen:
Pursuant to Section Two, Article Ten of the cur-
rent bargaining agreement in effect by and between
the hospital and Operating Engineers Local 756,
this is to inform you that after having exhausted
step One of the grievance procedure we now file
this written grievance with the employer as follows:
That the hospital's offer of dental, health and
care benefits to all non-union employees of the
hospital is a violation of the bargaining agree-
ment by and between the parties, Section One
concerning discrimination as well as a violation
of the State and Federal labor relations acts.
As you well know, the Union made a demand for
such benefits during the negotiation of the current
contract and said request was denied by the hospital
on the grounds that they could not afford such a
benefit in the package. We feel that such a request
on behalf of all non-union members is a direct
appeal to every employee of the hospital to be dis-
couraged to participate in union membership and is
an effort to discriminate against said members.
1243
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
May we have a meeting with management within
five days in order to attempt to amicably conclude
this matter or in the alternative proceed to step
three of the grievance procedure.
Yours truly,
LOCAL 756
BY---------------
Shop Steward, Leonard Carlson
Following the above letter, Local 756 also transmitted
the following letter on September 22, 1980:
Mr. Wayne Spary
St. Marys Hospital
Rochester, MN 55901
Mr. John Wolf
St. Marys Hospital
Rochester, MN 55901
Mr. Roger Wells
St. Marys Hospital
Rochester, MN 55901
Gentlemen:
This is to inform you that pursuant to Section
Three, Article Ten of the grievance procedure we
hereby name Dennis R. Peterson of Rochester, Min-
nesota, as the arbitrator on behalf of the Union.
Kindly provide me with the selection of the hospi-
tal chairperson in order that we may proceed to
select a third impartial arbitrator to negotiate the
issue as follows:
That the hospital's offer of dental, health and
care benefits to all non-union employees of the
hospital is a violation of the bargaining agree-
ment by and between the parties, Section One
concerning discrimination as well as a violation
of the State and Federal labor relations acts.
Yours truly,
LOCAL 756
BY ---------
Shop Steward
Leonard Carlson
Respondent replied to Local 756's request for artibra-
tion and request for negotiations by transmittal of the fol-
lowing letter dated September 26, 1980.
Mr. Leonard Carlson
Shop Steward
Union Local 756
Operating Engineers
Saint Marys Power Plant
Dear Mr. Carlson:
This letter acknowledges your September 22 corre-
spondence to Saint Marys Hospital requesting to ne-
gotiate an issue regarding dental insurance.
Saint Marys Hospital hereby advises you that it
does not consider your grievance to be arbitrable as
your complaint is not within the scope of our
Agreement.
Saint Marys Hospital considers our present Agree-
ment to be honored according to its stated terms.
Your request to negotiate over dental insurance
may be considered at the next round of negotiations
when the contract is open.
Sincerely yours,
Roger E. Wells
Assistant Administrator
Following the above, Respondent has not bargained
with Local 756 concerning a dental care plan. There has
been some bargaining on other issues. The history of bar-
gaining by Respondent with unions reveals that Re-
spondent and unions have bargained about items at times
when bargaining was not required but when the parties
were mutually willing to bargain about such issues.
E. Miscellaneous
Some evidence was presented concerning Respond-
ent's awareness of bargaining by the Minnesota Nurses'
Association in the Minneapolis-St. Paul area. Such evi-
dence is revealed by the following excerpts from Wells'
testimony.
Q. Is it your understanding that in the spring of
1980 the Minnesota Nurses' Association entered into
contract negotiations with hospitals in the Twin
Cities area, is that your understanding?
A. That's my understanding.
Q. How did you learn that, Mr. Wells?
A. I'm not sure. I suppose our director of human
resources would have reported that to the adminis-
tration. There is a state personnel directors society
and they are in touch constantly as to what is going
on in hospitals. Also, those contracts we follow
pretty closely because we try and follow the nurs-
ing contract as closely as possible, that, Minneapo-
lis, being our closest source of recruitment of
nurses, as well as competition. So we would know
when those contracts were coming up.
Q. Now, it is a fact that the Minnesota Nurses
Association negotiated an agreement with hospitals
in the Twin Cities area that provides for dental in-
surance for certain employees, right?
A. I don't know.
During the presentation of this evidence, the General
Counsel indicated that his case was not based on a dis-
crimination type theory, that there were not 8(a)(3) alle-
gations despite the fact that the original charge had in-
cluded allegations of conduct violative of Section 8(a)(3).
1244
SAINT MARYS HOSPITAL
F. Contentions and Conclusions
The ultimate facts and issues concerning whether Re-
spondent has refused to bargain with Local 21 and Local
756 are essentially similar.20
The General Counsel contends in effect that the
Unions had a statutory right to bargain concerning a
dental plan, that the Unions had not waived the right to
bargain about a dental plan, that, for a waiver to be ef-
fective, it must be clear and unmistakable and involve a
conscious relinquishment which is clearly intended and
expressed. Respondent contends that the bargaining by
the parties with respect to the Local 21 (1979-82) and
the Local 756 (1979-82) contracts revealed conscious re-
linquishments of the Unions' proposals for a dental care
plan, that in effect the Unions had waived their right to
bargain as to a dental plan during the period of time
governed by the referred to contracts, and that Respond-
ent was not obligated to bargain about a dental care plan
since "health care" provisions had been a part of the re-
ferred-to contracts as negotiated.
The General Counsel argues that Board decisions such
as the B. F. Goodrich Company, 195 NLRB 914, support
a finding that the Unions in the instant case had not
waived their right to bargain over a dental care plan. In
the B. F. Goodrich case, the union had not made a pro-
posal about a "stock purchase plan" but merely inquired
about a rumor that the company intended to institute
such a plan. Upon a reply that there were no plans for a
stock purchase plan, the union did not pursue the issue.
In my opinion, the failure to pursue an inquiry under
such circumstances is clearly distinguishable from the
withdrawal of a proposal made by the Union. The latter,
if done as part of a bargain, can clearly constitute a
waiver as to bargaining about the subject matter in-
volved. Similarly, the facts in N L Industries, Inc., 220
NLRB 41 (1975), are distinguishable from the facts in the
instant case. In the N L case the parties had discussed in
negotiations a profit-sharing plan but had not discussed a
savings plan. Here, the parties have discussed a proposal
relating to a "full" dental care plan, or to a dental plan.
Thus, unlike the N L case, the issue involved had been
negotiated about and constitutes a part of the overall bar-
gaining. 2
The determination of whether or not there has been a
waiver of a statutory right requires a careful considera-
tion of all of the facts. Further, careful consideration
must be given to the extent of the alleged waiver. Where
the overall facts reveal that the parties have made a bar-
gain concerning a waiver or limitation of a statutory
right, careful scrutiny is made of the facts, and the
I On September 30, 1981, I issued a decision in Rochester Methodist
Hospital, Case 18-CA-7097, JD-505-81, wherein the facts, although dif-
fering in respect from the facts in the instant case, are ultimately similar
to the facts in this case. The fundamental principles of law applicable to
the Rochester case and the instant case are the same. I have freely used
the same language, or tailored language, as used in the Rochester case in
the setting forth of the contentions and conclusions in this case.
i" Cf. National Broadcasting, 252 NLRB 187 (1980). In the National
Broadcasting Co.. Inc. case, the Board found that the union had not
waived its right to bargain about a savings plan I note that the facts in
such case suggest that the respondent therein had engaged in deception
during bargaining, or at least had not been frank and forthright.
waiver or limitation of a statutory right will be limited to
the exact bargain made.
The General Counsel contends that there was not a
waiver of bargaining by the Unions as regards a dental
plan because the evidence does not reveal that the
Unions clearly intended to waive the right to bargain
and clearly expressed such waiver. I do not agree. A
viewing of the facts as a whole reveals, in my opinion,
that the Unions clearly and consciously relinquished
their right to bargain over a dental plan and clearly in-
tended to waive their right to bargain as to a dental plan.
In American Telephone and Telegraph Company-Long
Lines Department, 250 NLRB 47 (1980), the Board af-
firmed language by Administrative Law Judge Winkler
relating to the principles concerning waiver of statutory
rights by a union. Administrative Law Judge Winkler set
forth that waiver required a conscious relinquishment,
clearly intended and expressed to give up the statutory
right. Administrative Law Judge Winkler set forth, how-
ever, that such doctrine of waiver was different from the
situation involving questions of bargaining about substan-
tive rights. In Radioear Corporation, 214 NLRB 362
(1974), the Board has set forth that it does not apply a
rigid formula in the determination of whether there has
been a waiver of bargaining about a substantive matter
flowing from past bargaining for an existing contract.
Where an expressed formal proposal concerning dental
care has been made, where such proposal has been dis-
cussed, where such proposal has been made by the union
throughout most or all of the bargaining, and where such
proposal is eliminated from the final agreement, it is hard
to believe that the overall actions of the union, in enter-
ing into a final agreement, do not reveal a conscious re-
linquishment and waiver of bargaining as to a dental care
provision, and do not reveal that such conscious relin-
quishment and waiver was clearly intended and clearly
expressed. 22 In the absence of evidence not presented in
this case, it is clear that the facts reveal a conscious relin-
quishment and waiver of the right to bargain about a
dental plan during the period of the contracts entered
into by the parties in 1979.23
It appears clear that the waiver or bargain made by
the Unions in the instant case would not have left Re-
spondent free to make unilateral changes in the condi-
tions of employment of bargaining unit employees. How-
ever, Respondent's institution of a dental care plan for
certain employees not within the bargaining unit does
not constitute a unilateral change within the meaning of
the Act. Although such employees, as became covered
by a dental plan, are not employees in the bargaining
units, and apparently are not employees represented by
unions, no evidence has been presented to reveal that the
11 Conscious relinquishment, bargain, or waiver can be proven and
often is proven by the persuasiveness of overall facts. It is not necessary
that the proof be in specific writing or by specific statement. In criminal
law, circumstantial evidence may be found to be sufficient to establish
guilt beyond a reasonable doubt Similarly, the overall facts relating to
negotiations may clearly reveal a conscious relinquishment, a bargain, or
a waiver as to bargaining
i2 There is no contention and no evidence to support contentions that
the Unions by inadvertent error overlooked or forgot their dental care
proposals
1245
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
granting of a dental plan to some employees was moti-
vated because they were represented or not represented
by a union.
The General Counsel contends that the specifics of the
dental care plan, initiated for nonbargaining unit employ-
ees, were not discussed, that, therefore, the Unions did
not waive bargaining as to such plan for bargaining unit
employees. I am not persuaded that this argument has
merit. Rather, the Unions' proposal during bargaining
concerned a full dental plan or a dental plan. The facts
reveal a conscious relinquishment of such proposals as
part of the final bargains. Certainly, the relinquishment
of a proposal for a full or of a simply referred-to dental
plan, without qualification, constitutes a relinquishment
of proposals for dental plans in general.
The General Counsel cites cases concerning alleged
waiver of statutory rights. Respondent cites cases con-
cerning the same subjects and argues that Respondent is
being asked to modify the existing contract, and that bar-
gaining as to such modification, by definition, is not re-
quired by Section 8(d) of the Act. 24 Many of the cited
cases concerning alleged waivers of statutory rights
touch upon question of statutory rights other than the
right to bargain. The Board has discussed the question of
alleged waiver of the statutory right to bargain in the
same general terms of waiver doctrine as applied to
other statutory rights. The Board, however, has said that
it views a question of waiver as to bargaining rights as
being dependent on the overall bargaining and that it
does not utilize a rigid formula in its determination. 25 It
appears that consideration is given in waiver of statutory
rights questions, other than bargaining rights, of the bar-
gain made as compared to the alleged right waived. As
to a waiver of bargaining rights, the major thrust is
whether the right to bargain about the subject matter in-
volved has been exercised, and has resulted in a bargain
for a fixed term. Thus, the Board considers whether
there has been a conscious relinquishment of the right to
bargain about certain proposals and whether the overall
facts reveal such relinquishment was clearly intended, ex-
pressed, or deemed as part of the overall bargain. If so,
the Board finds that there has been a waiver and that
Section 8(d) of the Act does not require parties to bar-
gain about such subject matter as involved. Of course,
such does not leave the parties free to make unilateral
changes in terms and conditions of employment.
It is clear that some changes in conditions of employ-
ment constitute modification of existing contracts. As to
other changes, the determination by the Board of wheth-
er there has or has not been a waiver, or whether a bar-
gain has been made, appears to merge the question of
waiver and of whether there has been an attempt to
modify an existing term of a fixed term contract. In any
event, the same result appears to flow from a considera-
:4 Sec. 8(d) of the Act sets forth in effect that the duty to bargain does
not include a requirement for discussion or agreement as to the modifica-
tion of a term or condition contained in a contract for a fixed period.
a See Radioear Corporation, supra.
tion of the Board's waiver doctrine as applied or from a
consideration of the meaning of Section 8(d) of the
Act. 26
In sum, the facts reveal that the Unions, during the
bargaining for the 1979 contracts with Respondent, con-
sciously relinquished their proposals for a dental plan in
such contracts, and that such relinquishment in effect
constituted a part of the bargains for such contracts.
Under such circumstances, Respondent had no obligation
to bargain with the Unions when requested to do so
about a dental care plan in June, August, and September
1980, and for the duration of said referred-to contracts. 27
Accordingly, the facts are insufficient to reveal that Re-
spondent has violated Section 8(a)(5) and (1) of the Act,
as alleged. 28 It is so concluded and found.
Upon the basis of the above findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Saint Marys Hospital, Respondent, is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Hotel, Hospital, Restaurant & Tavern Employees
Union, Local 21, affiliated with Hotel & Restaurant Em-
ployees and Bartenders International Union, AFL-CIO,
is, and has been at all times material herein, a labor orga-
nization within the meaning of Section 2(5) of the Act.
3. International Union of Operating Engineers, Local
756, AFL-CIO, is, and has been at all times material
herein, a labor organization within the meaning of Sec-
tion 2(5) of the Act.
4. The facts do not establish that Respondent has vio-
lated Section 8(a)(5) and (1) of the Act.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 29
The consolidated complaint in this matter is dismissed
in its entirety.
2s The Jacobs Manufacturing Co., 94 NLRB 1214, 1227-28 (1951); Tri-
angle PWC, Inc., a subsidiary of Triangle Industries. Inc., 231 NLRB 492
(1977)
2" I note, however, that Respondent must bargain about any changes it
wishes to make in said contract, and that this is subject to whether the
Unions so desire to bargain
2s See Jacobs Mfg. Co.. supra, and Triangle PWC. Inc., a subsidiary of
Triangle Industries. Inc., supra.
12 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
1246