Gratiot Community Hosp. v. N.L.R.B.

• Decision Date: 21 April 1995
• Docket Number: 94-5023,Nos. 93-6533,s. 93-6533
• Citation: 51 F.3d 1255
• Parties: 149 L.R.R.M. (BNA) 2072, 130 Lab.Cas. P 11,317 GRATIOT COMMUNITY HOSPITAL, Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1255

51 F.3d 1255

149 L.R.R.M. (BNA) 2072, 130 Lab.Cas. P 11,317

GRATIOT COMMUNITY HOSPITAL, Petitioner/Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner.

Nos. 93-6533, 94-5023.

United States Court of Appeals Sixth Circuit.

Argued Feb. 3, 1995.

Decided April 21, 1995.

Mark D. Nelson (argued and briefed), Catherine R. Giella (briefed), Keck, Mahin & Cate, Chicago, IL, for petitioner cross-respondent.

Aileen A. Armstrong, Deputy Associate Gen. Counsel (briefed), Frederick C. Havard (argued), Marilyn O'Rourke, N. L. R. B., Washington, DC, for respondent cross-petitioner.

Before: MERRITT, Chief Judge; BROWN and BATCHELDER, Circuit Judges.

BROWN, J., delivered the opinion of the court, in which MERRITT, C.J., joined. BATCHELDER, J. (pp. 1261-65), delivered a separate opinion dissenting in part and concurring in part.

BAILEY BROWN, Circuit Judge.

This case arose from various unfair labor charges filed against petitioner, Gratiot Community Hospital (the "Hospital"), by the Gratiot Community Hospital Registered Nurses Association, the labor organization representing the Hospital's registered nurses. The National Labor Relations Board (the "Board") issued a complaint against the Hospital alleging four violations of the National Labor Relations Act, 29 U.S.C. Sec. 158 (the "Act"): (1) that the Hospital coerced an employee(s) to meet with members of management without the presence of a Union representative in order to discuss or attempt to resolve grievances; (2) that the Hospital unlawfully refused to bargain with the Union about the Hospital's decision to cease supplying surgical scrubs to employees; (3) that the Hospital unlawfully terminated the 7/70 shift program; ¹ and (4) that the Hospital unlawfully terminated the position of nursing supervisor. An Administrative Law Judge ("ALJ") heard the matter and found against the Hospital on all four claims. The Board subsequently issued its decision and order, adopting the ALJ's decision in full. The Hospital now petitions this court to review two of the Board's four determinations: (1) that the Hospital unlawfully ceased to supply scrub uniforms to registered nurses, and (2) that the Hospital unlawfully terminated the 7/70 program by reducing the nursing staff teams to zero. The Board has filed a cross-petition seeking enforcement of its order. We order enforcement of the Board's order on the issue of surgical scrubs; however, we deny enforcement of the order with respect to the termination of the 7/70 staffing program. We also order enforcement on the two remaining issues not contested by the Hospital.

I.

Gratiot Community Hospital is an acute health care facility located in Alma, Michigan. Since 1967, the Hospital's registered nurses have been represented by the Gratiot Community Hospital Registered Nurses Association (the "Union"). The Hospital and Union had a collective bargaining agreement ("CBA") covering all periods in question.

In the spring of 1991, the Hospital determined that it was sustaining severe financial losses. Deficits of several million dollars were reported for both 1990 and 1991, and a three million dollar loss was projected for 1992. Consequently, the Hospital initiated an intensive review of its operations in order to identify ways in which it could function more economically. The Hospital formed a "turnaround" task force to develop a recovery plan for the Hospital.

A series of meetings and communications took place during the summer of 1991. On June 26, management officials informed the Union Executive Committee and the Union's bargaining agent, Jim Hayes, about the Hospital's financial predicament, the existence of the turnaround team, and the fact that several cost-cutting steps would be necessary, including the likelihood of bargaining unit member layoffs. The parties met three more times on July 17, July 30, and August 5 discussing several issues and proposals. ² The parties were unable, however, to accomplish anything substantial. In the meantime, the Hospital unilaterally initiated several cost-cutting measures germane to this appeal.

1. The Hospital abolished its scrub uniform policy.

For many years, the Hospital voluntarily purchased and laundered scrub uniforms for most of the Hospital staff, including the registered nurses. It had become a longstanding practice. However, on July 22, 1991, the Hospital issued a report to all employees announcing that "the Hospital will no longer furnish surgical scrub suits" to employees in most departments. A memo distributed on July 23, the next day, restated and expanded the Hospital's announcement, stating in pertinent part that:

Effective September 1, ... the Hospital will no longer supply employees with surgical scrubs as a replacement for uniforms. The policy change affects all departments....

Employees of departments who currently utilize scrubs will have the option of purchasing scrubs currently provided or purchase appropriate uniforms from outside vendors....

...

It will be the employees' responsibility to launder their own scrubs effective September 1....

Union President, Glenn King, testified that he never received formal notice from the Hospital of its decision to terminate the scrub policy prior to the above memo being posted on a Hospital bulletin board. Moreover, King alleged that management told the Union that the decision with respect to the scrub policy was non-negotiable. Members of management deny having taken that position.

2. The Hospital reduced the number of 7/70 staff teams to zero.

As stated, the 7/70 staffing program was negotiated by the Hospital and Union to attract registered nurses to the night-shift. The program began with just one team of nurses, and although there had been some fluctuation, the number of teams increased steadily. Prior to the adoption of the Hospital's financial recovery plan, there were thirteen teams.

Article 46 of the CBA states that "[t]he Director of Nursing will decide the number of assignments and the work areas that will be under the Seventy Hour Shift." ³ Relying on this language, the "turnaround" task force obtained the Board of Director's approval to reduce the number of 7/70 teams to zero. This inevitably led to some nurses being laid off or bumped to part-time positions thereby losing their health benefits. The hospital later determined that it needed to reinstate the 7/70 program, and invited bidding for placements in two teams.

3. The Board's Conclusions and Order.

The Board, in adopting the ALJ's rulings, held that the Hospital violated Sec. 8(a)(5) and (1) of the Act by refusing to bargain with the Union over ceasing to supply scrub uniforms to all registered nurses, and by, without bargaining, terminating the 7/70 program by reducing the number of staff teams to zero. The Board ordered the Hospital to cease and desist from refusing to bargain with the Union about the scrub uniform and 7/70 matters, make any affected employees whole, and post a notice to all employees with respect to the matter. The Hospital contends that the Board's/ALJ's findings and conclusions with respect to these two issues are erroneous and not supported by the evidence in the record. The Board, on cross-appeal, seeks enforcement of its order.

II.

According to the Act, "findings of the Board with respect to questions of fact if supported by substantial evidence on the record as a whole shall in like manner be conclusive." 29 U.S.C. Sec. 160(e). Likewise, where substantial evidence supports the Board's conclusions, such conclusions may not be disturbed on appeal. Kux Mfg. Co. v. NLRB, 890 F.2d 804, 808 (6th Cir.1989). In fact, we are not permitted to displace the Board's choice between two conflicting views, even if we could justifiably reach a different conclusion reviewing the matter de novo. YHA, Inc. v. NLRB, 2 F.3d 168, 172 (6th Cir.1993); Highland Superstores, Inc. v. NLRB, 927 F.2d 918, 923 (6th Cir.1991). Evidence is considered substantial if it is adequate to a reasonable mind to uphold the decision. Id.

Section 8(a)(5) of the Act makes it an unfair labor practice for an employer "to refuse to bargain collectively with the representatives of his employees." 29 U.S.C. Sec. 158(a)(5); NLRB v. Centra, Inc., 954 F.2d 366 (6th Cir.1992), cert. denied, --- U.S. ----, 115 S.Ct. 462, 130 L.Ed.2d 370 (1994). The duty to bargain collectively requires an employer and the union representing the employees to "meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment...." 29 U.S.C. Sec. 158(d). Thus, an employer violates Sec. 8(a)(5) by unilaterally changing any term or condition of employment subject to mandatory bargaining. There is no such violation, however, if the union has waived its right to bargain. YHA, Inc. v. NLRB, 2 F.3d 168, 172 (6th Cir.1993).

1. Whether the Hospital violated the Act by ceasing to supply surgical scrubs.

As stated, the Board/ALJ held that the Hospital violated the Act by refusing to bargain with the Union over ceasing to supply scrub uniforms to registered nurses. The ALJ first found, and the Hospital does not contest, that providing laundered scrubs to its employees became a condition or benefit of employment through longstanding past practice. Any change in this condition, therefore, was a mandatory subject of bargaining. Thus, the Hospital was required to give the Union notice of its intent to rescind the scrub uniform policy and a good-faith opportunity to bargain about it.

A. Notice

In the Sixth Circuit, actual notice is sufficient to satisfy an employer's duty to notify union representatives of a change in conditions or terms of employment. YHA, Inc., 2 F.3d at 173. Accordingly,

while "formal and full" notice may be prudent, if only to preclude another from claiming ignorance, it is not required.... "[W]here a union had actual notice of an employer's intentions at a time when there was sufficient...