SOUTHCOAST HOSPITALS GROUP, INC.,

NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.

Southcoast Hospitals Group, Inc. and Massachusetts

Nurses Association. Case 01–CA–150261

June 28, 2017

DECISION AND ORDER

BY CHAIRMAN MISCIMARRA AND MEMBERS PEARCE AND MCFERRAN

On March 7, 2016, Administrative Law Judge David I. Goldman issued the attached decision. The Respondent filed exceptions and supporting, answering, and reply briefs. The General Counsel filed cross exceptions and supporting and answering briefs.

The National Labor Relations Board has considered the judge’s decision and the record in light of the exceptions, cross-exceptions, and briefs and has decided to affirm the judge’s rulings, findings,¹ and conclusions and to adopt the recommended Order as modified and set forth in full below.²

¹ The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an administrative law judge’s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings.

² We affirm the judge’s finding that the Respondent violated Sec. 8(a)(5) and (1) by failing and refusing to provide the Union with requested information.

We also affirm the judge’s finding that the Respondent violated Sec. 8(a)(5) and (1) by unilaterally implementing its final offer without having reached a valid impasse. The Board has held that “overall impasse may be reached based on a deadlock over a single issue.” Atlantic Queens Bus Corp., 362 NLRB No. 65, slip op. at 1 (2015) (citing CalMat Co., 331 NLRB 1084, 1097 (2000)). “The party asserting a single-issue impasse has the burden to prove three elements: (1) that a good-faith impasse existed as to a particular issue; (2) that the issue was critical in the sense that it was of ‘overriding importance’ in the bargaining; and (3) that the impasse as to the single issue ‘led to a breakdown in overall negotiations’ . . . .” Id. (quoting CalMat, 331 NLRB at 1097). Here, for the reasons explained by the judge, the Respondent failed to prove that an impasse existed as to any particular issue and, even assuming that impasse was reached on a particular issue, the Respondent failed to show that it led to a breakdown in overall negotiations.

Chairman Miscimarra agrees that the Respondent violated Sec. 8(a)(5) and (1) of the Act when it implemented its final offer without having reached a valid impasse, but he does so based solely on the Respondent’s failure to prove “a breakdown in overall negotiations” as required under the third element of the CalMat standard, and he does not rely on sec. III(b) of the judge’s decision.

In addition, Chairman Miscimarra disagrees with the judge’s statement, in sec. III(a) of his decision, equating the Respondent’s invalid declaration of impasse with a “refusal to bargain.” Chairman Miscimarra believes this statement is incorrect in two respects. First, an

ORDER

The National Labor Relations Board orders that the Respondent, Southcoast Hospitals Group, Inc., Wareham, Massachusetts, its officers, agents, successors, and assigns, shall

1. Cease and desist from

(a) Refusing to bargain collectively with the Massachusetts Nurses Association (the Union) by failing to furnish it with requested information that is relevant and necessary to the Union’s performance of its functions as the collective-bargaining representative of the Respondent’s unit employees.

(b) Unilaterally changing the terms and conditions of employment of unit employees by implementing its final offer without the parties having reached a lawful impasse.

(c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.

unfair labor practice does not arise merely from a false declaration of impasse (i.e., declaring impasse when a legally valid bargaining impasse does not exist). What violates Sec. 8(a)(5) in this situation is the employer’s implementation of its final offer in the absence of a valid impasse; the employer’s false declaration of impasse does not constitute an independent violation of the Act. Second, even when an employer falsely declares the existence of an impasse and then unlawfully implements its final offer, this cannot accurately be described as a “refusal to bargain” since both parties, obviously, were bargaining. Although the phrase “refusal to bargain” is sometimes used loosely to describe all violations of Sec. 8(a)(5), it really applies to cases in which a union has requested bargaining over a mandatory bargaining subject, and the employer refuses to bargain over the matter. By comparison, the Respondent’s violation here arises from a separate 8(a)(5) obligation, recognized by the Supreme Court in NLRB v. Katz, 369 U.S. 736, 743 (1962), to bargain to an agreement or impasse (or at least to provide the union notice and opportunity for such bargaining) before making changes in any term or condition of employment that constitutes a mandatory bargaining subject. This Katz-type violation occurs where, as here, there has been no “refusal to bargain,” but the employer has not satisfied its duty to refrain from making changes in mandatory bargaining subjects unless bargaining has resulted in an agreement or impasse. See Total Security Management Illinois 1, LLC, 364 NLRB No. 106, slip op. at 25–26 (2016) (Member Miscimarra, concurring in part and dissenting in part) (describing difference between the Sec. 8(a)(5) duty to bargain upon request and the duty to refrain from making unilateral changes unless the employer has provided the union notice and opportunity for bargaining to an agreement or impasse); E.I. du Pont de Nemours, 364 NLRB No. 113, slip op. at 17–19, 20 fn. 35, 21 fn. 39 (2016) (Member Miscimarra, dissenting) (same).

We find it unnecessary to pass on whether the Respondent violated Sec. 8(a)(5) by introducing a new and regressive proposal in violation of the parties’ ground rules, as the remedy for this additional violation would be subsumed within the remedy for the unlawful implementation violation. Chairman Miscimarra would affirm the judge’s finding that the Respondent did not violate Sec. 8(a)(5) in this regard.

In adopting the judge’s tax compensation remedy, we rely on AdvoServ of New Jersey, 363 NLRB No. 143 (2016).

365 NLRB No. 100

2

2. Take the following affirmative action necessary to effectuate the policies of the Act.

(a) Furnish to the Union, in a timely manner, the information requested March 9, 2015, regarding the number of nurses that have used the FMLA benefit.

(b) Upon the Union’s request, rescind the changes in the terms and conditions of employment for its unit employees that were unilaterally implemented on and after April 15, 2015, as part of the implementation of its final bargaining offer.

(c) Make unit employees whole for any loss of earnings or other benefits suffered as a result of the unlawful unilateral implementation of changed terms and conditions of employment, in the manner set forth in the remedy section of the judge’s decision.

(d) Compensate affected employees for the adverse tax consequences, if any, of receiving lump-sum backpay awards, and file with the Regional Director for Region 1 a report allocating the backpay awards to the appropriate calendar year for each employee.

(e) Before implementing any changes in wages, hours, or other terms and conditions of employment of unit employees, notify and, on request, bargain collectively and in good faith with the Union as the exclusive collectivebargaining representative of employees in the following bargaining unit:

All registered nurses employed by Southcoast for its Tobey Hospital site, excluding the Director of Nursing, the Assistant Director of Nurses, Nurse Managers, Administration Supervisor, managerial employees, supervisor, confidential employees, and all other employees.

(f) Within 14 days after service by the Region, post at its facilities in Wareham, Massachusetts, copies of the attached notice marked “Appendix.”³ Copies of the notice, on forms provided by the Regional Director for Region 1, after being signed by the Respondent's authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with its employees by such means. Reasonable steps shall be taken by the Respond

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

³ 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.”

ent to ensure that the notices are not altered, defaced, or covered by any other material. If the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since March 9, 2015.

(g) Within 21 days after service by the Region, file with the Regional Director for Region 1 a sworn certification of a responsible...