The opinion
ALICE M. BATCHELDER, Circuit Judge,
dissenting in part, concurring in part.
I agree with the majority that Gratiot Community Hospital (the “Hospital”) did not violate the NLRA by eliminating the 7/70 shift program. It is also my opinion, however, that the Hospital did not violate the NLRA by discontinuing the provision of laundered surgical scrubs to its employees. For the reasons that follow, therefore, I must respectfully dissent from the majority holding that the Hospital’s announcement of the new surgical scrub policy was a fait accompli.
I.
A.
I agree with the majority that the Hospital provided the RNA with actual notice of the proposed change in the scrub policy. However, I cannot agree with the majority’s view that the Hospital was unwilling to enter into good faith negotiations on that issue and that the Hospital’s notice of the proposed change in scrub policy was notice to the RNA of a fait accompli. On the contrary, it is my opinion that substantial record evidence does not exist to support the decision of the ALJ *1262 and the Board that the Hospital’s notice was a fait accompli.
The majority points to some of the language used by the Hospital in announcing the proposed change in scrub policy as evidence that the policy was a fait accompli. When that language is scrutinized in isolation and out of context, it could appear to state the new scrub policy in definite, inflexible terms. However, the Hospital issued two written communications to apprise the employees of the plan being proposed by the Hospital’s “turnaround taskforce.” When those communications - are examined in their entirety, it is apparent that the change in policy was a proposal only, not a done deal. Both communications were part of the ongoing efforts of the turnaround taskforce to formulate an economic recovery plan, and it is clear from the record that when those communications were issued, the proposed plan had yet to be submitted to the Hospital Board of Directors for approval. The first communication was the Hospital president’s report of July 22, 1991. This report’s introduction stated:
We must still present an acceptable plan for appropriate internal and external organization approval. We must still put the. plan into action. We should be confident that working together we will be successful in achieving the hospital’s financial turnaround and recovery.
After this introduction, the report listed numerous changes, including the new scrub policy, proposed by the taskforce to reduce Hospital costs. The president’s report was followed on July'23, 1991, by a memorandum specifically directed to the cost-reduction plan’s new scrub policy, which was to be implemented on September 1, 1991. Inadvertently, even the ALJ acknowledged that the proposal was not definite until it was approved by the Hospital Board. As the ALJ said: “at no time did any Hospital official divulge the specific recommendations of the recovery plan until it was adopted by the Board of Directors on August 7.” Taken as a whole, it is unreasonable to infer from these communications that the Hospital was not willing to negotiate on any of the changes proposed.
The case at hand is factually very different from other cases in which an employer’s actions represented a fait accompli. Here the Hospital’s proposal did not go into effect until well after the RNA had been notified. See, e.g., Intermountain Rural Elec. Ass’n v. NLRB, 984 F.2d 1562 (10th Cir.1993) (finding of fait accompli because employer had implemented unilateral change in policy before union received notice of change); Teamsters Local Union No. 171 v. NLRB, 863 F.2d 946 (D.C.Cir.1988) (same), cert. denied sub nom. AG. Boone Co. v. NLRB, 490 U.S. 1065 , 109 S.Ct. 2063 , 104 L.Ed.2d 628 (1989); Soule Glass and Glazing Co. v. NLRB, 652 F.2d 1055 (1st Cir.1981) (same). Rather, the Hospital’s proposed policy was circulated approximately five weeks before the date projected for its implementation. Cf. Gulf States Mfg., Inc. v. NLRB, 704 F.2d 1390 (5th Cir.1983) (finding of fait accompli because union learned of layoffs only fifteen minutes before they were announced). Nor did Hospital management act secretly or fail to consult or inform the RNA of the proposed scrub change. See, e.g., NLRB v. Centra, Inc., 954 F.2d 366, 372 (6th Cir.1992) (finding that employer implemented its plan secretly and failed to inform union until too late to bargain), cert. denied, — U.S.-, 115 S.Ct. 462 , 130 L.Ed.2d 370 (1994).
Nevertheless, the ALJ held that the Hospital’s communications were “pronouncement[s] of a final and unqualified decision.” The ALJ based her conclusion solely on one small portion of the Hospital’s communications and the fact that the Hospital “bypassed” the RNA by communicating directly with the employees. This is not substantial evidence that the Hospital was notifying the RNA of a fait accompli. First, as this Court has concluded, the communications to the employees provided the RNA with actual notice of the new scrub proposal. Second, the language of the communications alone is not substantial evidence of a so-called fait accompli.
Finally, the Hospital is correct in its contention that the language of an employer’s proposed policy is not required to be phrased in an open-ended manner. The case at hand is factually very similar to YHA, Inc. v. *1263 NLRB, 2 F.3d 168 (6th Cir.1993), in which the company’s Board of Trustees adopted a resolution that all company facilities were to become smoke free within three months of adoption of the resolution. YHA, 2 F.3d at 170 . Although the employer in YHA informed the employees that “the facilities would be smoke free by April 1, 1990,” the YHA court did not find the policy to be a fait accompli. Id. at 170 . On the contrary, the YHA court found that the union had waived its right to bargain by failing to make a timely bargaining demand. Id. at 173 . In YHA, therefore, the company first made a decision to establish the new policy unilaterally, then announced the new policy — in definite terms — to its employees, and finally met with its employees to best implement the policy. In the case at hand, the policy change had not yet even been adopted by the Hospital Board of Directors. The new scrub policy was therefore even less definite than the policy proposed by the employer in YHA. At any rate, the language of the Hospital’s proposed policy is not enough to constitute substantial evidence that the change was already a fait accompli.
If the Hospital’s notice of its proposed policy change was not notice of a fait accom-pli, the RNA has the duty to prove that it did not waive its right to bargain. It was the RNA’s duty to “act with due diligence in requesting bargaining.” YHA, 2 F.3d at 173 . According to the YHA court:
[W]here an employer has made a decision and announced it to the employees in a similar time period before its effective date, the Board has found the bargaining representative must do more than merely protest the change; it must meet its obligation to request bargaining. As those eases hold, any less diligence amounts to a waiver by the bargaining representative of its right to bargain.
Id. (emphasis added) (footnotes omitted) (quoting Jim Walter Resources, Inc., 289 N.L.R.B. 1441 , 1442, 1988 WL 213953 (1988)).
According to the RNA, it did raise the issue of the scrub policy at meetings with Hospital management. The ALJ agreed with the RNA, stating that “I am convinced that the Union would not neglect to raise [the scrub] issue while it was engaged in discussions with the Respondent about other elements of the recovery plan.” The ALJ does not make it clear, however, what convinced her that the union actually brought up the issue. The ALJ only concludes that the RNA would “surely” not have added the issue of the scrub policy to their amended complaint as early as August 20 unless they believed that the hospital was not willing to bargain in good faith.
Once again, however, substantial record evidence does not exist to support the ALJ’s finding. The RNA cites to two portions of the transcript .to support its claim that union representatives did raise the issue in meetings with the hospital. Neither example in the transcript provides substantial evidence that the union requested negotiation on this issue. One union witness, James Hayes, the RNA’s bargaining agent, testified that the subject was broached, but his testimony is not as conclusive as the RNA would suggest. Mr. Hayes testified to the following:
Q. All right. Now you mentioned that there was some talk about [the past practice of providing scrubs] at one meeting sometime in July or early August, right?
A Uh-huh.
Q. Do you recall the specifics of that discussion regarding scrubs? You said the RNA brought it up.
A. Well I had been told by the membership and the executive committee not to do anything that would open the contract for negotiations, they were fearful about the wage increase which had been negotiated. And so in the sense of negotiations, I don’t know that it ever occurred. But we always said that we would be willing to talk about those issues. But the Hospital didn’t really talk to us in the few meetings that occurred, they told us what they wanted and then did not respond to our response.
(emphasis added). Glenn King, an RN at the hospital and President of the Executive Committee of the RNA, was also asked if the *1264 scrub policy change came up in any of the meetings. King testified as follows:
Q. What, if anything, did you do as Local President or the RNA President, when you discovered this change in [scrub] policy? Did you go to Management?
A. Well, we found these, these changes, I think we already were involved in the lay off and this was just another thing added to that.
Q. When you say you were already ... A. Discussions.
Q. And did you bring this up in, to Management, saying what’s going on here?
A. It was mentioned, like I say, with everything else involved.
Q. What was ...
A. Not specifically.
Q. When you discovered, though, that they had made this decision you asked them about it, is that correct? You asked who about it?
A. We would have asked Carol Goffnett and Dennis Witham.
Q. And you said, what did you ask them, do you recall?
A. Again, we would have just asked their position on the scrubs. Again, we were told, non-negotiable, so we added that to our unfair labor practice,
(emphasis added).
It is my opinion that substantial evidence does not support the ALJ’s finding. In fact, evidence in the record proves to the contrary that the RNA failed to raise the scrub issue in any meeting. This evidence is found in an August 3rd RNA memo randum to the hospital in which the RNA requested a special conference “to discuss an attempt to resolve all issues.” This RNA memo listed five issues to be discussed, and the change in policy regarding scrubs was not included among those issues. It is clear from the record that the RNA waived its right to bargain on the scrub policy by failing to raise the issue of scrubs and failing to request an opportunity to bargain.
B.
Finally, even if there were substantial evidence to support the findings of the ALJ and the Board, it is unreasonable to require the Hospital to negotiate on an issue when the union representatives maintain the position that they are only present to “listen.” The duty to bargain in good faith is a mutual obligation among all parties to the negotiations. Wald Mfg. Co. v. NLRB, 426 F.2d 1328 , 1331 (6th Cir.1970); see also Pease Co. v. NLRB, 666 F.2d 1044 , 1049 (6th Cir.1981), cert. denied sub nom. Ohio Valley Carpenters Dist. Council v. Pease Co., 456 U.S. 974 , 102 S.Ct. 2238 , 72 L.Ed.2d 848 (1982); Seattle-First Nat’l Bank v. NLRB, 638 F.2d 1221 , 1227 n. 9 (9th Cir.1981) (“[W]hat is required is that both parties ‘enter into discussions with an open and fair mind, and a sincere purpose to find a basis of agreement ....’”) (quoting NLRB v. Holmes Tuttle Broadway Ford, Inc., 465 F.2d 717, 719 (9th Cir.1972)). Consequently, “ ‘bargaining is a two-sided proposition; it does not exist unless both parties enter the negotiations in a good faith effort to reach a satisfactory agreement.’” Wald Mfg. Co., 426 F.2d at 1331 (quoting NLRB v. Kentucky Utilities Co., 182 F.2d 810, 813 (6th Cir.1960)).
In this case, the RNA representatives expressly told Hospital management that they were not meeting with the Hospital to negotiate. 1 Clearly the RNA had no intention to bargain on the scrub issue. The requisite “common willingness” among the parties was not present in the case at hand. NLRB v. Kentucky Utils. Co., 182 F.2d at 813 . Consequently, I do not believe that the Hospital *1265 can be held to have violated its duty to bargain in good faith.
H.
Based on the foregoing, I concur in the majority’s opinion to the extent it finds that the Hospital did, not violate the NLRA by eliminating the 7/70 shift program. I must dissent, however, on the issue of the Hospital’s implementation of a new scrub policy because it is my opinion that not only did the union waive its right to bargain on that issue, it had no intention of bargaining on the issue.
. It was apparent that the RNA did not intend to enter negotiations with the Hospital. In RNA Executive Committee President, Glenn King’s own words:
I think'we made it clear from the beginning of every meeting that we were not there to negotiate. We were there to listen.
According to James Hayes, the RNA’s bargaining representative:
Well I had been told by the membership and the executive committee not to do anything that would open the contract for negotiations, they were fearful about the wage increase which had been negotiated.