St. Anthony Hospital Systems

National Labor Relations Board - Board Decisions

Sep 22, 1995

319 N.L.R.B. 46 (N.L.R.B. 1995)

46
319 NLRB No. 9
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 In adopting the judge’s rejection of the Respondent’s affirmative
defense of laches, we note that the Respondent’s argument that it has
been prejudiced by delay is based, in part, on its own destruction
of its own personnel records after the timely unfair labor practice
charge had been filed.
2 Member Browning agrees, for the above reasons, that American
Diamond Tool is distinguishable from this case. In addition, how-
ever, for the reasons set forth in Member Devaney’s dissent in
American Diamond Tool, Member Browning does not subscribe to
the panel majority’s holding in that case, and would overrule it. In
Member Browning’s view, the union in that case, as well as the
Union in this case, had no obligation to request bargaining after the
employer implemented the layoffs without giving the union suffi-
cient notice and an opportunity to bargain. Any subsequent bargain-
ing over the layoffs would inevitably have been tainted by the em-
ployer’s unilateral action.
3 In refusing to provide a monetary remedy for these unlawful uni-
lateral changes, the judge was influenced by the fact that the parties
had executed two collective-bargaining agreements in the intervening
years, citing Emhart Industries, 907 F.2d 372, 379–380 (fiMDBUfl*ERR17*fiMDNM
1990)fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl, and St. John’s Hospita
court, in Emhart denied enforcement of the Board’s order, finding
no violation of the National Labor Relations Act and also stating
that in any event, the court would not require a remedy. It stated
that ‘‘unexcusable’’ delay by the Board had resulted in such a
change in ‘‘the underlying situation at Emhart that enforcement of
the order now not only would undermine more labor policies that
[sic] it would advance, but would mock reality.’’ The holding, how-
ever, turned on the particular circumstances of that case. At the time
of the court’s decision, the reinstatement procedure at issue had been
in use for 6 years, mostly with the Union’s agreement. Further, at
the time of the court’s decision the affected facility was vacant.
St. Anthony Hospital Systems and St. Anthony Fed-
eration of Nurses and Health Professionals,
AFT, AFL–CIO. Cases 27–CA–7640, 27–CA–
7767, 27–CA–9731, and 27–CA–12042
September 22, 1995
DECISION AND ORDER
BY MEMBERS BROWNING, COHEN, AND
TRUESDALE
On November 12, 1993, Administrative Law Judge
David G. Heilbrun issued the attached Decision. The
Respondent, the General Counsel, and the Charging
Party each filed exceptions and supporting briefs. The
General Counsel and the Charging Party each filed an
answering brief in response to the Respondent’s excep-
tions. The Respondent filed an answering brief in re-
sponse to the General Counsel’s and the Charging Par-
ty’s exceptions, and filed a reply brief to the General
Counsel and Charging Party’s answering briefs.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions1 and to adopt the recommended Order as
modified.
The Respondent relies on American Diamond Tool,
306 NLRB 570 (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl1992)fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17
that the Union waived its right to bargain concerning
the Employer’s layoff of two employees in July 1991.
In American Diamond Tool, the Board found that the
employer violated Section 8(fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfla)fiMDBUfl*ERR17*fiMDNMflfiMDBUfl
employees and subsequently transferring one of them
to a nonunit position, without notifying the union and
providing it with an opportunity to bargain, but that
the union nevertheless waived its right to bargain sub-
sequent to the layoffs by not requesting bargaining
when it had the opportunity to do so during ongoing
negotiations, in the particular circumstances of that
case. The Board emphasized, however, that it was a
combination of several circumstances that led it to con-
clude that the union had waived its right to bargain,
both because it did not request bargaining subsequent
to the layoffs, and because it ‘‘expressly signaled its
willingness to permit such conduct [i.e., the layoffs
and the transfer] in the future.’’ Id. at 571. The Board
stressed that it was not deciding if any of the cir-
cumstances present in that case, standing alone, would
prove a waiver, by conduct, of the union’s bargaining
right. Id.
We find that key circumstances present in American
Diamond Tool are not present in this case, and that the
Union did not waive its right to bargain by its conduct
subsequent to the layoffs. The Board in American Dia-
mond Tool relied in part on the fact that the union in
that case proposed a management-rights provision that
expressly authorized the type of layoffs that the Em-
ployer had already put into effect. Id. at 570. In this
case, there is no indication that the Union proposed the
layoff provisions and the management-rights clause
which were ultimately agreed to in the parties’ collec-
tive-bargaining agreement. Further, the Respondent in
this case, unlike the employer in American Diamond
Tool, has not established that the procedures it used in
effecting the 1991 layoffs were the procedures stated
in the parties’ collective-bargaining agreement. Thus,
contrary to the specific circumstances that, in their to-
tality, led the majority to find a waiver of bargaining
in American Diamond Tool, the Union’s simple failure
in this case to request bargaining upon hearing rumors
of an already implemented layoff does not suggest,
much less expressly signal, that the Union either ac-
cepted the Respondent’s unilateral action or condoned
similar layoffs in the future.2
Contrary to the judge, we find that a monetary rem-
edy is appropriate here and that it is feasible to make
a reasonable determination of losses that employees
suffered as a result of the Respondent’s unlawful
changes in its staffing and leave policy, and that the
appropriateness of the standard status quo ante remedy
has not been rebutted.3
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47ST. ANTHONY HOSPITAL SYSTEMS
In this case, unlike Emhart, the delay in remedying the unfair
labor practices was due in substantial part to the Respondent’s litiga-
tion of the Union’s certification and to settlement discussions. As
noted by the court in Emhart, ‘‘[r]emedies in unfair labor practice
cases must be designed ‘to restore the status quo as nearly as pos-
sible, had the wrong not been committed.’’’ [Citation omitted.] In
St. John’s the Board simply concluded that unlawful changes had not
been detrimental to the employees and therefore restoration was un-
necessary. There is no such showing here.
AMENDED REMEDY
Having found that the Respondent, St. Anthony
Hospital Systems, has engaged in unfair labor practices
in violation of Section 8(fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfla)fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ER
shall order it to cease and desist and to take certain af-
firmative action designed to remedy its unfair labor
practices and to effectuate the policies of the Act.
Having found that the Respondent implemented its
Personal Employee Time system (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMflPET)fiMDBUfl*ERR17*fiMDNMflfi
6, 1981, and issued revised staffing policies on No-
vember 20, 1981, in violation of Section 8(fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfla)fiMDBUfl*ERR17*fiMD
shall order the Respondent to rescind its PET system
and revised staffing policies if requested to do so by
the Union. We shall also order the Respondent to
make its employees whole for any loss they may have
suffered as a result of these unfair labor practices (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMflas
determined at the compliance stage of this proceeding)fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl
as prescribed in Ogle Protection Services, 183 NLRB
682 (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl1970)fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl,
for the Retarded, 283 NLRB 1173 (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl1987)fiMDBUfl*ERR17*fiMDNMfl
Having found that the Respondent laid off certain
employees about May 30, 1986, and in July 1991, in
violation of Section 8(fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfla)fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR
shall, consistent with Rocky Mountain Hospital, 289
NLRB 1370, 1371 (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl1989)fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR
diate and full reinstatement and make them whole for
any loss of earnings and other benefits they may have
suffered because of the layoffs in the manner pre-
scribed in F. W. Woolworth Co., 90 NLRB 289
(fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl1950)fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl, with
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, St.
Anthony Hospital Systems, Denver, Colorado, its offi-
cers, agents, successors, and assigns, shall take the ac-
tion set forth in the Order as modified.
1. Add the following as paragraph 2(fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMflb)fiMDBUfl*ERR17*fiMDNMfl
the subsequent paragraphs.
‘‘(fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMflb)fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl Res
tem and unlawfully revised staffing policies, if re-
quested to do so by the Union, and make employees
whole for any losses they may have suffered as a re-
sult of these unfair labor practices, in a manner deter-
mined at the compliance stage of this proceeding.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT make changes in the leave system and
staffing policies that affect the employees in the fol-
lowing appropriate bargaining unit without providing
prior notice and an opportunity to bargain to Denver
Federation of Nurses and Health Professionals, as suc-
cessor to St. Anthony Federation of Nurses and Health
Professionals (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNM
All full-time and regular part-time technical em-
ployees employed at the St. Anthony Central and
St. Anthony North facilities including Licensed
Practical Nurses (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*
(fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMflLPN)fi
nicians, Orthopedic Technicians, Laboratory As-
sistants, Phlebotomists, Surgical Technicians, In-
strument Technicians, Pharmacy Technicians, Pul-
monary Function Technicians, Radiology Tech-
nologists, EEG/Neurodiagnostic Technicians, Res-
piratory Therapy Technicians, Registered Res-
piratory Therapists, Graduate Respiratory Interns,
Ophthalmology Technologists, Histology Tech-
nologists, Telemetry Technicians, Physical Ther-
apy Technicians, OB Technicians, Traction Tech-
nicians, Respiratory Equipment Technicians, GI
Technicians, EKG Technicians, but excluding
confidential employees, business office clerical
employees, office clerical employees, guards,
managers, and supervisors as defined in the Na-
tional Labor Relations Act, and all other employ-
ees.
WE WILL NOT lay off employees in the above appro-
priate bargaining unit without providing prior notice
and an opportunity to bargain to the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer to Ann Gallagher, William Dalton,
Ricky Ford, Eleona Duliga, Angie Pyeatt, Keith
Cubedge, Larry Alirez, Cindy Glasgow, Florence
Haeflinger, Pat Donaho, Barbara Fadely, and Marcie
Ordunez immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to
their seniority or any other rights or privileges pre-
viously enjoyed and WE WILL make them whole for
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48 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
any loss of earnings and other benefits resulting from
their layoffs, less any net interim earnings, plus inter-
est.
WE WILL rescind the PET system and revised staff-
ing policies, if requested to do so by the Union, and
make employees whole for any losses they may have
suffered as a result of these changes, in a manner de-
termined at the compliance stage of this proceeding.
ST. ANTHONY HOSPITAL SYSTEMS
Michael T. Pennington, for the General Counsel.
James E. Hautzinger (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMflSherman & Howard)fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17
rado, for the Respondent.
Joseph M. Goldhammer (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMflBrauer, Buescher, Valentine,
Goldhammer & Kelman, P.C.)fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl, of Denver, Colorado, for
the Charging Party.
DECISION
STATEMENT OF THE CASE
DAVID G. HEILBRUN, Administrative Law Judge. These
consolidated cases were tried at Denver, Colorado, on Au-
gust 24, 1993. An originating charge was filed late in 1981
by St. Anthony Federation of Nurses and Health Profes-
sionals, AFT, AFL–CIO (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMflthe Union)fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17
bered charges were filed in the years 1982 and 1986, respec-
tively. The most recent charge, as Case 27–CA–12042, was
filed by the Union on January 16, 1992. Complaints were
duly issued shortly after the filing of each charge, and by
order consolidating cases dated September 22, 1992, these
were combined in an amended consolidated complaint of that
date. The primary issues are whether St. Anthony Hospital
Systems (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMflthe Respondent)fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl
ditions of employees without prior notice to the Union, or af-
fording it an opportunity to bargain with respect to such
changes, and whether certain layoffs of bargaining unit em-
ployees were made without comparable prior notice to the
Union, all such conduct assertedly in violation of Section
8(fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfla)fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl(fiMDBUfl*ERR17*fiM
amount of time that has passed since the originating charge
in these now consolidated cases also presents a due process
issue.
On the entire record, including my observation of the de-
meanor of witnesses, and after considering the briefs filed by
the General Counsel, the Respondent, and the Charging
Party, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a corporation with an office and place of
business in Denver, Colorado, where it is engaged in the op-
eration of an acute care hospital system. In the course and
conduct of its business operations Respondent annually pur-
chases goods, materials, and services valued in excess of
$50,000 directly from points and places outside the State of
Colorado, while also annually deriving gross revenues in ex-
cess of $500,000. On these admitted facts I find that Re-
spondent is an employer engaged in commerce within the
meaning of Section 2(fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl2)fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl, (
Union is a labor organization within the meaning of Section
2(fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl5)fiMDBUfl*ERR
II. ALLEGED UNFAIR LABOR PRACTICES
A. Case Summary
After certification of the Union in 1980 for a technical unit
of hospital employees, Respondent pressed appeal litigation
regarding its fundamental obligation to bargain. In the course
of such activity this employer unilaterally made certain
changes to preexisting terms and conditions of employment
which affected the certified bargaining unit. Several years
passed and then a substantial layoff of employees occurred
in 1986, including various persons employed within the tech-
nical unit here involved. Several more years again passed
and in summer 1991, Respondent laid off two respiratory
therapists, an occupation included within the bargaining unit.
The parties had not commenced contract negotiations until
June 1990, and this activity resulted in a first-time labor
agreement between them as executed in March 1992. It ex-
pired July 1, 1993, and has been succeeded by a new 2-year
contract now in effect.
B. Procedural Background
In St. Anthony Hospital Systems, 282 NLRB 790 (fiMDBUfl*ERR17*fiMDN
the Board granted a certain Motion for Summary Judgment
by General Counsel, holding that Respondent had violated
Section 8(fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfla)fiMDBU
bargain with the Union as exclusive collective-bargaining
representative under Section 9(fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17
an appropriate technical unit of hospital personnel as cer-
tified earlier that year following a Board election. This Deci-
sion and Order, issued by a panel majority on January 22,
1987, recounted numerous procedural happenings in the case
up to that point, commencing with an election on April 16,
1980, in which a majority of valid and unchallenged ballots
had been cast for the Union.
Briefly and chronologically stated, the procedure that fol-
lowed was:
April 1980—Timely Employer (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR
May (fiMDBUfl*ERR17*fi DNMflfiMDBUfl*ERR17*fi DNMflest.)fiMDBU
June 2, 1980—Regional Director’s (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*
tions, recommending that they be overruled.
June (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMflest.)fiMDBU
August 21, 1980—Board certification of the Union for the
technical unit as completely described in 282 NLRB 790 at
791 and comprising approximately 327 employees.
October 3, 1980—Union’s filing of charge as Case 27–
CA–6947; this ultimately decided as 282 NLRB 790.
October 22, 1980—R.D.’s issuance of complaint in Case
27–CA–6947.
October 30, 1980—Respondent’s answer to complaint
filed.
January 25, 1982—General Counsel’s Motion for Sum-
mary Judgment filed.
February 2, 1982—Board transfers proceeding and issues
Notice to Show Cause, to which both Respondent and Union
file responses.
August 24, 1984—Board denies Motion for Summary
Judgment and remands to R.D. for further consideration con-
sistent with St. Francis Hospital, 271 NLRB 948 (fiMDBUfl*ERR17*fiMDNM
Decision and Order which had issued on August 13, 1984.
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49ST. ANTHONY HOSPITAL SYSTEMS
November 5, 1985—R.D. reopens record while issuing no-
tice of hearing.
March 20, 1986—R.D. reaffirms 1980 certification by
Supplemental Decision and Order.
April 16, 1986—Respondent requests review of this Sup-
plemental Decision.
May 8, 1986—Board denies Respondent’s request for re-
view.
June 18, 1986—Board fixes this date as about when ‘‘the
Respondent refuses to bargain with the Union.’’
July 10, 1986—General Counsel’s Motion for Summary
Judgment filed.
July 1986—Board transfers proceeding and issues Notice
to Show Cause, to which Respondent files a response.
January 22, 1987—Resultant Board Decision and Order.
Respondent sought review of this decision in the court of
appeals, resulting in St. Anthony Hospital Systems v. NLRB,
884 F.2d 518 (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl10th Cir. 1989)fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMD
August 8, 1989, denied Respondent’s request for review and
granted the Board’s cross-petition for enforcement. The court
traced doctrine as to standards for bargaining unit determina-
tions in the health care industry, and found that the technical
unit here involved had been correctly fashioned under appli-
cable law. The hospital’s petition for rehearing on the matter
was denied on September 18, 1989.
C. General Facts
In the course of administrative law phases of this overall
controversy, several actions were undertaken by Respondent
which give rise to the majority of issues that are present for
treatment. For context Respondent had maintained a com-
prehensive, 10-page statement of ‘‘Staffing Policies’’ for its
nursing department since at least 1979. These policies cov-
ered numerous terms and conditions of employment, and par-
ticularly as to work scheduling, variations thereto, and time
off.
By letter dated October 23, 1981, Claire Dernbach, presi-
dent of the Denver Federation of Nurses and Health Profes-
sionals (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMflDFNHP)fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl, wrote
questing negotiations and information concerning ‘‘a new
paid leave policy for employees’’ that was termed as having
been brought to the Union’s attention. The area organization
of which Dernbach was president included the St. Anthony
Federation as the only health care facility chapter still viable
in actively representing hospital employees. Her letter was
answered on October 30, 1981, by then counsel to Respond-
ent, denying the requests on the basis of Respondent’s non-
recognition of the Union at that time. On the same date of
October 30, 1981, Respondent administratively issued em-
ployees notice of its implementing a Personal Employee
Time (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMflPET)fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl system, to be
written notice elaborately described the amount of PET time
and conditions of its usage, all in substitution for what pre-
viously had been the discrete categories of vacation, holi-
days, and sick and funeral leave.
On November 20, 1981, Respondent issued revised staff-
ing policies as a new document with much the same format,
and considerably similar content, to what had existed before.
It resulted as an 11-page statement, with frequent reference
to the new PET concept as it affected work scheduling and
time off. On December 16, 1981, Dernbach again wrote to
Respondent’s administrator, terming the revised staffing poli-
cies as ‘‘changes in working conditions’’ and requesting ne-
gotiations on the subject. This letter was not answered.
Dorothy Mall is a long-service registered nurse (fiMDBUfl*ERR17*fiMDNM
rently employed by Respondent as a part-time RN. She held
office as president of the Union from July 1981 until January
1986. She had simultaneously held office as vice president
of the DFNHP for this same period, then in January 1986
assumed the presidency of the Denver Federation and va-
cated her position with the St. Anthony Federation. Mall cur-
rently remains president of the DFNHP. She testified that
during the latter months of 1981, Respondent neither notified
her of the staffing policy revisions nor offered to bargain
about them.
In May 1986, Mall learned through a newspaper article
that a reduction in force had occurred at Respondent. The
Union had received no notice of this from the employer. By
letter dated June 4, 1986, Mall wrote to Respondent’s per-
sonnel official, referring to her indirect knowledge of the lay-
offs and requesting negotiations on the subject and as to ef-
fects on unit employees. Respondent’s then counsel answered
this letter on June 18, 1986, denying the request for informa-
tion or bargaining on the basis of continuing nonrecognition
of the Union. The stipulated facts are that 10 individuals em-
ployed within the technical unit were laid off as part of this
1986 reduction in force.
When Mall assumed the presidency of DFNHP in January
1986, the St. Anthony chapter had become dormant. Its
records were combined into those of DFNHP and no officers
existed for the chapter. Following the court of appeals deci-
sion in 884 F.2d 518, the parties for the first time com-
menced contract negotiations. This process began in June
1990, with the representative for the technical unit as now
finally recognized being the DFNHP. The agreement ulti-
mately reached in March 1992 became effective on April 1,
1992. After the hiatus that had spanned several years, offi-
cers were elected for the St. Anthony Federation following
signing of this first contract. A printed booklet form of the
agreement runs 82 pages covering typical subjects compris-
ing wages, hours and conditions of employment, with a con-
siderable amount of language devoted to the subject of PET
as one of the contract articles.
After the parties had commenced bargaining in June 1990
a corporate change occurred involving Respondent. The en-
tity Provident Health Partners (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17
ary 1991, and Respondent became a part of that entity. David
Black had become vice president of human resources in No-
vember 1989 for the former business entity that Respondent
constituted at that time. With the creation of PHP in January
1991, he assumed a broader position as vice president of
human resources for that entity. Black has been Respondent’s
chief negotiator throughout bargaining with the Union as first
undertaken in June 1990.
As the course of bargaining proceeded a point was reached
in July 1991 when Respondent made two layoffs of res-
piratory therapists. The employees chosen, Barbara Fadely
and Marcie Ordunez, were the lowest and next to lowest in
seniority, respectively, for this classification. The layoffs
were made effective on July 16, 1991, for Fadely, and July
18, 1991, for Ordunez, at a time when the employees had
previously discussed the prospects for layoff with Horace
Kerr, another respiratory therapist and member of the
Union’s bargaining committee. Mall testified that she had
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50 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
heard from Kerr on July 20, 1991, how there were ‘‘rumors’’
of layoff in this classification being circulated. On a later
date in 1991 Mall was also told by Jerry Fitzpatrick, also a
respiratory therapist and similarly as with Kerr on the
Union’s bargaining committee, that unnamed persons of this
classification had been laid off. She did not, however, act on
the information, and eventually forgot about it. Mall denied
that Respondent had ever notified the Union of these layoffs
before they occurred.
D. Holdings
The issues present in this attenuated proceeding are gov-
erned by fundamental doctrine prohibiting an employer from
unilaterally changing wages, hours, or other terms and condi-
tions of employment where involved employees are rep-
resented by a labor organization. NLRB v. Katz, 369 U.S.
736 (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl1962)fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl. The duty aris
to apply during the period that is devoted to an employer’s
challenge of a Board certification. Bob’s Big Boy Family
Restaurants, 264 NLRB 432 (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl1982)fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*
well settled that making material and substantial unilateral
changes while testing the validity of a certification shows an
employer acting at its own peril. St. John’s Hospital, 281
NLRB 1163, 1168 (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl1986)fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl,
several actions that assertedly violate Section 8(fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfla)fiMDBUfl*ERR17*fiMDNMflfiMDB
not involve permissible alternatives to a scope or direction of
business. As to the layoffs in particular they are instead, as
the Board has written, decisions ‘‘to continue doing the same
work [but] with fewer employees.’’ Holmes & Narver, 309
NLRB 146 (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl1992)fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl.
The staffing policy changes of late 1981 created distinc-
tively different working conditions in several significant re-
gards. This resulted in changes in job assignments, periodic
work schedules, guidelines for floating utilization between
hospital units, vacation entitlement, and rules concerning ab-
senteeism. With respect to the PET implementation numerous
highly structured changes were made, which converted the
several previous areas of paid leave into one general cat-
egory. As evident from comparing modifications plainly or
potentially stemming from the new PET system, the personal
preferences of employees, and their random needs based on
unexpected factors, would all be subject to an employer-pro-
mulgated approach greatly different from what existed be-
fore.
Thus the staffing policy revisions and adoption of PET
represented unilateral changes made without notice to the
Union or bargaining on the subject. The Union’s written
communications of October 23, and December 16, 1981,
were sufficient as requests to bargain pursuant to the Union’s
entitlement, which in each case were either denied or ig-
nored. I hold from this that Respondent violated Section
8(fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfla)fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl(fiMDBUfl*ERR17*fiM
changes.
Much the same rationale applies to the bargaining unit lay-
offs in May 1986. This action was impermissible under an
employer’s basic statutory obligation to bargain over terms
and conditions of employment. At that point in time Re-
spondent was still following an incorrect strategy of expect-
ing that litigation in progress about the Union’s entitlement
to certification would insulate it from risk. This was simply
a failed strategy, and Mall’s letter of June 4, 1986, amply
preserved the Union’s standing to again accuse Respondent
of violating the Act.
By mid-1991 the parties were well along in contract nego-
tiations, however, Respondent chose once more to disregard
its obligation of notifying the representative of respiratory
therapists that their layoffs were imminent and then actual.
In this instance, contrasting with Mall’s prompt filing of a
charge over the 1986 layoffs, the termination of two res-
piratory therapists was not openly challenged until the
Union’s final charge as Case 27–CA–12042 dated in January
1992. This does not, however, detract from the evident right
of the Union to be offered bargaining about the layoff pros-
pects, particularly with the parties in active contract negotia-
tions at the time. I hold here that Respondent’s failure to
give notice and accord the Union its opportunity to bargain
over the two layoffs of July 1991 constituted the final viola-
tion of Section 8(fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfla
dated complaint.
E. Affirmative Defenses
Respondent has duly pleaded several separate defenses.
These essentially amount to contentions of both waiver and
laches and were briefed by Respondent’s counsel with that
emphasis.
As to waiver the basic of showing such effect on statutory
rights must manifest in one of three ways; contractual lan-
guage, conduct of the parties, or a combination of the first
two. American Diamond Tool, 306 NLRB 570 (fiMDBUfl*ERR17*fiMDNMfl
cases cited. If an employer fails to give prior notice of pro-
posed change, a union will not be found to have waived its
rights. San Antonio Portland Cement Co., 277 NLRB 309
(fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl1985)fiMDBUfl*ER
924 (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl1988)fiMDBUfl
Notice of the changes in late 1981 was pointedly withheld
from the Union. Both staffing policy revisions and the PET
system were disseminated strictly by direct information to
the hospital’s employees. It does not suffice for Respondent
to argue that actual notice would expectedly be in the
Union’s possession because of the sweep these changes rep-
resented. The two letters from the Union, or written on its
behalf, amply demonstrated a desire to bargain about these
subjects. Respondent’s handling of these requests, both by
firm rejection in one instance and disregard in the other, not
only highlighted its adamant stance in the early months fol-
lowing certification, but also formed a basis for the Union
to expect only futility in pressing similar requests for bar-
gaining at future times.
As to the 1991 layoffs I do not find the Union to have
committed a waiver of statutory rights. Although the parties
were in a course of bargaining, and their contract resulted in
a layoff article where inverse seniority was the chief deter-
minant, this fact is insufficient to settle the point. I hold this
view even though all had actual informal knowledge of the
layoffs and took no action to contest them. The more con-
trolling consideration is that Respondent’s use of a consistent
past practice in effecting layoffs could not supersede its obli-
gation to refrain from unilateral action accompanying its own
failure to give the Union prior notice. There was no showing
of an urgent business necessity for the two 1991 layoffs, and
the Union was presented merely with a classic fait accompli
that does not suffice as valid notice. Overall these factors,
coupled with an employer’s more pronounced obligation to
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51ST. ANTHONY HOSPITAL SYSTEMS
acknowledge a labor organization’s entitlement to notice of
changes, do not permit Respondent’s waiver defense to pre-
vail. See Intersystems Design Corp., 278 NLRB 759 (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl1986)fiMDBUfl*ERR17*fiMDN
Adair Standish Corp., 292 NLRB 890 (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl1989)fiMDBUfl*ERR17*fiMDNMflfiMDBU
mountain Rural Electric Assn., 305 NLRB 783 (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl1991)fiMDBUfl*ERR17*fiMDNMflfi
Intermountain case was decided on what the Board termed
‘‘limited circumstances’’ of that course of negotiations as it
affected medical and dental insurance premiums, however I
consider the Board’s reasoning supportive here of a conclu-
sion that this Union did not ‘‘clearly intend, express, and
manifest a conscious relinquishment of its right to bargain.’’
Respondent also invokes the doctrine of laches, couched in
terms of classic estoppel theory against the Board because of
long delay in bringing these consolidated issues to adjudica-
tion now. Respondent concedes that generally the defense of
laches is inapplicable to the Board’s public proceedings.
F. M. Transport, 302 NLRB 241 (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl1991)fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ER
Examination of the procedural history in the case shows a di-
verse number of factors that caused 12 years to pass from
the time of the earliest allegedly unlawful unilateral changes
until now. These included not only Respondent’s own exten-
sive litigation activity, but more importantly the evolving
state of the law respecting unit determinations for the health
care industry. Favorable consideration toward this defense
would require both a showing of delay entirely attributable
to General Counsel, and that Respondent has been prejudiced
by a lack of due process that veritably precludes it from ef-
fectively presenting its case. But as General Counsel has
pointed out Respondent actually once argued for a stay of
proceedings as an affirmative defense filed in May 1982 an-
swering the complaint in Case 27–CA–7767. This position
statement was never modified, and part of the long delay was
consumed by settlement negotiations in which Respondent
participated.
As to prejudice, Respondent made a record of the exten-
sive changes it experienced over the 12-year span. These in-
cluded a transfer of operating responsibilities to a different
religious order, a complete turnover in human resource ex-
ecutives, the loss of all staff persons having labor relations
responsibilities during the years 1980 through 1986, and the
purging of personnel records after a 7-year period. Such ob-
stacles are noted, however they do not in the aggregate rise
to a due-process level of prejudice. This is particularly true
where institutional foresight was the principal cause for a
lack of litigation records, and no showing was made that in-
dividuals with germane knowledge of the past could not be
located. In sum, the element of prejudice to Respondent is
not present as to case merits, however I shall develop below
my recommended belief as to how these factors impinge on
an appropriate remedy in this situation.
CONCLUSIONS OF LAW
1. St. Anthony Hospital Systems is an employer engaged
in commerce within the meaning of Section 2(fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl2)fiMDBUfl*ERR17*fiMDNMflfiMDBU
of the Act.
2. St. Anthony Federation of Nurses and Health Profes-
sionals, AFT, AFL–CIO and the Denver Federation of
Nurses and Health Professionals, AFT, AFL–CIO are each a
labor organization within the meaning of Section 5 of the
Act.
3. Since August 21, 1980, the Union has been certified as
the exclusive representative for purposes of collective bar-
gaining of Respondent’s employees in a technical unit as de-
scribed in that certification and later modified by voluntary
agreement of the parties as set forth in article I,A of their
collective-bargaining agreement that was effective until July
, 1993.
4. By unilaterally revising its staffing policies effective
November 20, 1981, without providing the Union with notice
and opportunity to bargain about that decision and its effects,
Respondent violated Section 8(fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*
5. By unilaterally implementing the PET system effective
December 6, 1981, without providing the Union with notice
and opportunity to bargain about that decision and its effects,
Respondent violated Section 8(fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*
6. By laying off 10 individuals from the certified bargain-
ing unit on or about May 30, 1986, without providing the
Union with notice and opportunity to bargain about that deci-
sion and its effects, Respondent violated Section 8(fiMDBUfl*ERR17*fiMDNM
(fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl5)fiMDBUfl*ERR1
7. By laying off Barbara Fadely and Marcie Ordunez from
their bargaining unit positions as respiratory therapist in July
1991 without providing the Union notice and opportunity to
bargain about that decision and its effects, Respondent vio-
lated Section 8(fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfla)fiM
8. The unfair labor practices found above are unfair labor
practices affecting commerce within the meaning of Section
2(fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl6)fiMDBUfl*ERR
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
Ordinarily an unlawful unilateral change in working condi-
tions that is ‘‘material, substantial, and significant’’ warrants
a monetary remedy so that a make-whole order may be ful-
filled. Adair Standish, supra, at 892. See also Intermountain,
supra, and Toyota of Berkeley, 306 NLRB 893 (fiMDBUfl*ERR17*fiMDNMflfi
the working conditions imposed by Respondent’s unilateral
actions of late 1981 had the potential for major effect on em-
ployees of this bargaining unit. The changes involved all
manner of work scheduling under the general heading of
‘‘staffing’’ (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMflpolicies
created a major change in the way personal time off was
planned and taken by employees.
I recognize the principle that wronged employees are not
to be penalized for extreme delay in the ordering of a legal
remedy for unfair labor practices. However the particular fact
situation here sufficiently compels another view. It is that re-
gardless of reasons the extensive personnel records that
would typically form a basis for reconstructing individual
employee losses attributable to the ‘‘staffing’’ changes and
PET system simply no longer exist. Absent such records a
burdensome effort would need to be mounted in reconstruct-
ing from secondary sources any quantifiable losses. There is
a myriad of variations in how, and even why, employees
were gainfully utilized by the hospital under its revised poli-
cies as to staffing versus its original ones. Similarly with the
PET system there could well be reconstructions showing how
given employees were disadvantaged by the change, but this
would all be based on circumstances and motivations now al-
most historical in content. I do not believe the effort is justi-
fied as a matter of conserving agency resources. The task of
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52 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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.
2 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.’’
looking back into employment dynamics as they were occur-
ring up to 12 years ago seems too daunting for what could
reasonably be yielded by the effort. I am also influenced by
the fact that these very passing years have resulted in two
collective-bargaining agreements between the parties, and the
extent to which lessons of the staffing policy revisions bene-
fitted current contract provisions is a possibility too great to
be ignored. Cf. Emhart Industries v. NLRB, 907 F.2d 372,
379–380 (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl2d Cir. 1990)fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl.
changes rendered by Respondent in 1981 from normal reme-
dial action. Cf. St. John’s Hospital, supra at fn. 3. Other than
this exception, the remedy is intended to be complete as de-
scribed immediately following.
Having found that Respondent violated Section 8(fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfla)fiMDBUfl*ERR17*fiMDNMflfiM
(fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl5)fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl by laying off employe
in July 1991 without advance notice to or bargaining with
the Union before the layoffs, I shall order Respondent, on re-
quest, to bargain with the Union concerning those layoffs. I
shall further order that Respondent reinstate and make whole
the employees laid off on those dates by paying them their
normal wages from the date of their layoffs until the earliest
of the following conditions are met: (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl1)fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR
laid-off employees; (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl2)fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl m
method, and effects of the layoffs; (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl3)fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR1
resulting in a bona fide impasse; (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl4)fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*
to commence such negotiations within 5 days of Respond-
ent’s notice of its desire to bargain with the Union; or (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl5)fiMDBUfl*ERR17*fiMD
the subsequent failure of the Union to bargain in good faith.
The individuals to whom this portion of the remedy applies
are Ann Gallagher, William Dalton, Ricky Ford, Eleona
Duliga, Angie Pyeatt, Keith Cubedge, Larry Alirez, Cindy
Glasgow, Florence Haeflinger, Pat Donaho, Barbara Fadely,
and Marcie Ordunez. Backpay shall be based on the earnings
the laid-off employees normally would have received during
the applicable period, less any net interim earnings, and shall
be computed in the manner set forth in F. W. Woolworth
Co., 90 NLRB 289 (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl1950)fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNM
in the manner set forth in New Horizons for the Retarded,
283 NLRB 1173 (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl1987)fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended1
ORDER
The Respondent, St. Anthony Hospital Systems, Denver,
Colorado, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfla)fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl Making unilateral c
providing adequate notice of proposed changes, and adequate
opportunity to bargain about them, to the collective-bargain-
ing representative of the employees affected by those
changes.
(fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMflb)fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl Making unilateral
Time (fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMflPET)fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfl system with
proposed changes, and adequate opportunity to bargain about
them, to the collective-bargaining representative of the em-
ployees affected by those changes.
(fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMflc)fiMDBUfl*ERR
and Health Professionals as successor to St. Anthony Federa-
tion of Nurses and Health Professionals by unilaterally laying
off employees without notifying the Union of the decision to
lay off and without giving such bargaining representative an
opportunity to bargain over the effects of the decision to lay
off employees from the following bargaining unit:
All full-time and regular part-time technical employees
employed at the St. Anthony Central and St. Anthony
North facilities including Licensed Practical Nurses
(fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMflLPN)fiMDBU
Technicians, Medical Technicians, Orthopedic Techni-
cians, Laboratory Assistants, Phlebotomists, Surgical
Technicians, Instrument Technicians, Pharmacy Techni-
cians, Pulmonary Function Technicians, Radiology
Technologists, EEG/Neurodiagnostic Technicians, Res-
piratory Therapy Technicians, Registered Respiratory
Therapists, Graduate Respiratory Interns, Ophthalmol-
ogy Technologists, Histology Technologists, Telemetry
Technicians, Physical Therapy Technicians, OB Techni-
cians, Traction Technicians, Respiratory Equipment
Technicians, GI Technicians, EKG Technicians, but ex-
cluding confidential employees, business office clerical
employees, office clerical employees, guards, managers,
and supervisors as defined in the National Labor Rela-
tions Act, and all other employees.
(fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfld)fiMDBUfl*ERR
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfla)fiMDBUfl*ERR
Eleona Duliga, Angie Pyeatt, Keith Cubedge, Larry Alirez,
Cindy Glasgow, Florence Haeflinger, Pat Donaho, Barbara
Fadely, and Marcie Ordunez immediate and full reinstate-
ment to their former jobs or, if those jobs no longer exist,
to substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges previously en-
joyed, and make them whole 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 this decision.
(fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMflb)fiMDBUfl*ERR
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMflc)fiMDBUfl*ERR
attached notice marked ‘‘Appendix.’’2 Copies of the notice,
on forms provided by the Regional Director for Region 27,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately on re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
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53ST. ANTHONY HOSPITAL SYSTEMS
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(fiMDBUfl*ERR17*fiMDNMflfiMDBUfl*ERR17*fiMDNMfld)fiMDBUfl*ERR
from the date of this Order what steps Respondent has taken
to comply.
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