Provena Hospitals, d/b/a Provena St. Joseph Medical Center, 808 (2007)

Docket Number:13–CA–39122

Provena Hospitals, d/b/a Provena St. Joseph Medical Center and Illinois Nurses Association. Case 13–CA–39122–1

August 16, 2007


By Chairman Battista and Members Liebman and Walsh

On December 21, 2001, Administrative Law Judge Bruce D. Rosenstein issued the attached decision. The Respondent filed exceptions and a supporting brief, counsel for the General Counsel filed an answering brief, and the Respondent filed a brief in reply.

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The National Labor Relations Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings, and conclusions only to the extent consistent with this Decision and Order.

The judge found that the Respondent violated Section 8(a)(5) and (1) of the Act by unilaterally and without notice to the Union, Illinois Nurses Association, implementing changes in the terms of employment of bargaining unit employees. Admitting that it acted unilaterally, the Respondent contends that under either of two alternative rationales, it did not violate its bargaining obligations. The Respondent asserts that the language of the collective-bargaining agreement, coupled with evidence concerning the parties’ bargaining history, establishes that the Union clearly and unmistakably waived its right to bargain over the matters in dispute, thereby satisfying the Board’s traditional test for determining whether an employer’s unilateral actions are lawful. Alternatively, the Respondent argues that the Board should abandon the clear and unmistakable waiver standard and instead use a “contract-coverage” analysis that has been enunciated by two circuit courts of appeals.[1] Under the contract-coverage standard, the Respondent argues that there is also no violation in this case.

For the reasons set forth more fully below, we agree with the judge’s application of the clear and unmistakable waiver standard as well as his determination that the Respondent violated its bargaining obligations before implementing the staff incentive policy. We disagree, however, with his determination that the Respondent’s implementation of changes in its attendance and tardiness policy violated the Act. In reaching these conclusions, we will explain why we adhere to the Board’s traditional waiver standard.

i. background

The Union has represented a unit of the Respondent hospital’s registered nurses since 1992. The Union and the Respondent have been parties to successive collective-bargaining agreements since 1993. The agreement involved here was effective from March 24, 1999, through March 23, 2002.

The following management-rights language has been included in every collective-bargaining agreement since the parties’ first contract in 1993:

Except as specifically limited by the express provisions of this Agreement, the Medical Center retains exclusively to itself the traditional rights (as historically existed prior to union organization) to operate and manage its business and to direct its employees, including, but not limited to the following: to direct, plan and control facility operations; to exercise control and discretion over the organization and efficiency of operations; to change or eliminate existing methods, materials, equipment, facilities and reporting practices and procedures and/or to introduce new or improved ones; to utilize suppliers, subcontractors and independent contractors as it determines appropriate; to determine what products shall be used; to establish and change the hours of work (including overtime work) and work schedules; to select, hire, direct and supervise employees and assign them work; to classify, train, promote, demote and transfer employees; to suspend, discipline and discharge employees; to increase, reduce, change, modify, or alter the composition and size of the workforce; to establish, modify, combine or abolish job classifications; to make and enforce rules of conduct, standards and regulations governing conduct of employees; to lay off and to relieve employees from duty because of lack of work or other reasons; to determine the number of departments and units and the work to be performed therein; to determine standards of patient care; to determine the schedules and nature of work to be performed by employees and the methods procedures and equipment to be utilized by employees in the performance of such work; to utilize employees wherever necessary in cases of emergency or in the interest of patient care, to introduce new or improved methods or facilities regardless of whether or not such introduction may cause a reduction in the working force; to establish and administer policies and procedures related to research, education, training, operations, services and maintenance of the Medical Center’s operations; to determine staffing patterns including but not limited to the assignment of employees, numbers employed, duties to be performed, qualifications and areas worked; to change or abolish any job title, department or unit; to select and determine the type and extent of activities in which it will engage and with whom it will do business; to determine and change starting times, quitting times, shifts, and the number of hours to be worked by employees; to determine policies and procedures with respect to patient care; to determine or change the methods and means by which its operations are to be carried on; to take any and all actions it determines appropriate, including the subcontracting of work, to maintain efficiency and appropriate patient care.

On December 8, 2000, because of short-term staffing concerns over the holidays resulting from job vacancies, the Respondent implemented a staff incentive policy applicable to bargaining unit employees. The policy provided that nurses who signed up for and worked extra shifts between December 8, 2000, and January 1, 2001,[2] would qualify for premium payments of up to an additional $500 beyond applicable overtime pay.[3] This was the third staff incentive policy adopted by the Respondent in a little over a year.[4]

The contract permitted what it termed “extraordinary pay” for extra hours worked when the Respondent determined that additional work hours or nurses were needed.[5] The collective-bargaining agreement did not, however, contain any provisions relating to incentive pay.

The Union learned about the holiday incentive policy on December 10, 2000, from a unit employee who saw an announcement memo in a work area.[6] During a labor-management meeting in mid-January,[7] the Union expressed displeasure with the Respondent’s failure to inform the Union in advance of the offer of incentives.[8]

Admitting that it did not afford the Union an opportunity for bargaining, the Respondent maintains that it had the authority to act unilaterally, in the absence of specific limitations to the contrary in the collective-bargaining agreement, under the agreement’s management-rights clause.[9] The Respondent asserts that the Union has historically acquiesced in its implementation of staffing incentives.

Thereafter, in a telephone conversation on January 18, the Respondent’s vice president of human resources, Diane Samuels, told union spokesperson Kay Jones that on February 1, the Respondent would be implementing a revised attendance and tardiness policy,[10] replacing one that had been in substantial effect since January 1997.[11] These policy documents addressed disciplinary processes related to attendance and tardiness. The collective-bargaining agreement contained no express provisions outside the management-rights clause regarding disciplinary processes, although it did set forth substantive obligations of employees regarding such matters as the requirements for call-in time and excused time. By letter of January 31, Jones told the Respondent that the Union was filing a grievance, demanded bargaining, and requested a copy of the changes. On February 2, the Respondent provided the Union with a copy of the revised attendance and tardiness policy that had been implemented the previous day. On February 9, Jones proposed several possible dates to begin negotiations. Samuels replied on February 23, agreed to meet, and requested that the Union contact her by telephone to schedule a date. The Union did not do so.

The Respondent admits in its answer to the complaint that the attendance and tardiness policy covered a mandatory subject of bargaining under the Act and was implemented unilaterally, but argues that the Union’s failure to request bargaining promptly upon receiving 2 weeks’ advance notice of the Respondent’s plan constituted a waiver and privileged its action. But both Respondent’s vice presidents, Solem and Samuels, testified that they would not have bargained with the Union over the new policy even if it had made a timely request, because the contract’s management-rights clause granted the Respondent the authority to act on its own. Solem relied specifically on the following parts of the management-rights provision as providing this authority: (1) the first sentence, which provides that “[e]xcept as specifically limited by express provisions of this Agreement, [the Respondent] retains exclusively to itself the traditional rights (as historically existed prior to Association organization) to operate and manage its business and to direct its employees”; (2) the clause permitting the Respondent “to change or eliminate existing methods, materials, equipment, facilities and reporting practices and procedures and/or to introduce new or improved ones”; (3) the clause authorizing the Respondent “to suspend, discipline and discharge employees”; (4) the clause allowing the...

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