St. Barnabas Medical Center et al. (22-CA-224139)

Cases 22-CA-224139 et al.

- 2 -

retroactively to November 1, 2017. The agreement included the following grievance

provision:

Step 1. Within a reasonable time . . . , an employee having a

grievance and/or his/her Union delegate or other

representative shall take it up with his/her immediate

supervisor. The Employer shall give its answer to the

employee and/or his/her Union delegate or other

representative within five (5) working days after the

presentation of the grievance in Step 1.

Step 2. If the grievance is not settled in Step 1, the

grievance may, within five (5) working days after the

answer in Step 1, be presented in Step 2. When grievances

are presented in Step 2, they shall be reduced to writing,

signed by the grievant and his/her Union representative,

and presented to the grievant's department head or his/her

designee. A grievance so presented in Step 2 shall be

answered by the Employer in writing within five (5)

working days after its presentation.

Step 3. If the grievance is not settled in Step 2, the

grievance may, within five (5) working days after the

answer in Step 2, be presented in Step 3. A grievance shall

be presented in this step to the Director of Human

Resources or Administrator of the Employer, or his/her

designee; and he/she or his/her designee shall render a

decision in writing within five (5) working days after the

presentation of the grievance in this step.

II. Changed Communication Practices

For years, the Union

raised and resolved bargaining unit-related

issues in direct contact with nurse supervisors and managers, including the

Employer’s

. Such communication often took place by text

message, email, or phone. The general practice of direct contact between the Union

and nursing management extended to the parties’ handling of grievances

.

II. Changed Communication Practices

For years, the Union

raised and resolved bargaining unit-related

issues in direct contact with nurse supervisors and managers, including the

Employer’s

. Such communication often took place by text

message, email, or phone. The general practice of direct contact between the Union

and nursing management extended to the parties’ handling of grievances.

When the Union

processed a grievance in the first two steps of the parties’

contractual grievance process,

did so by initiating direct contact with the

managers responsible for hearing the grievances at those steps. In addition, the

Union

and nursing supervisors and managers routinely worked together to

resolve issues outside the formal grievance process.

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

(b) (6), (b) (7

(b) (6), (b) (7)(C)

Cases 22-CA-224139 et al.

- 5 -

HR letter, Human Resources staff did not get involved in grievance processing until

the third step.

On July 20, the Union filed a charge that, as subsequently amended, alleges

that the Employer violated Section 8(a)(5), (3), and (1) by unilaterally terminating

contact and discussion between the Union and the nursing department in

contravention of decades-old practice and retaliating against the Union

for

union activity.

III. The Investigatory Interview

Employee A works for the Employer as a registered nurse.

was scheduled

to work on February 18. On February 15, Employee A requested managerial approval

to trade that shift for a colleague’s

shift.

made the request using an

electronic system maintained by the Employer.

Having not received approval of the trade request by the next day, Employee A

attempted to speak with a manager about the request, but

was unsuccessful in

reaching one. When the Employer had still not acted on the request by February 17,

Employee A brought it up with a supervisor

that shift for a colleague’s

shift.

made the request using an

electronic system maintained by the Employer.

Having not received approval of the trade request by the next day, Employee A

attempted to speak with a manager about the request, but

was unsuccessful in

reaching one. When the Employer had still not acted on the request by February 17,

Employee A brought it up with a supervisor. Based on the supervisor’s response,

Employee A thought the supervisor was orally granting the switch request.

Accordingly,

went to work on

instead of February 18.

The Employer, however, considered the trade request unapproved and expected

Employee A on February 18. When Employee A went to work on

, a nurse

manager interviewed

about the situation in the manager’s office. During the

interview, the nurse manager instructed Employee A to make a written statement

about the shift trade and refused to accept an oral account instead.

Employee A believed the demand for a written account and refusal to accept an

oral account were wrong.

interrupted the interview to contact the Union

, who joined the interview shortly after. After the Union

arrival,

the nurse manager continued to demand a written statement from Employee A and

stated that Employee A would be suspended if

did not provide one. The Union

responded that Employee A could give an oral statement and the nurse

manager could take notes, but that Employee A should not be required to give a

written statement.

added that no nurse had ever had to give a written statement

in an investigatory interview. The nurse manager said that if Employee A did not give

a written statement right there,

would be suspended. The Union

asked

if the suspension was for refusing to give a written statement at that time, and the

nurse manager either said “yes” or nodded affirmatively. Employee A did not provide

a statement, and the Employer suspended

at the conclusion of the meeting

an investigatory interview. The nurse manager said that if Employee A did not give

a written statement right there,

would be suspended. The Union

asked

if the suspension was for refusing to give a written statement at that time, and the

nurse manager either said “yes” or nodded affirmatively. Employee A did not provide

a statement, and the Employer suspended

at the conclusion of the meeting.

Employee A remained suspended for three work shifts before returning to the

hospital on

for a meeting with the nurse manager, other managers, and the

(b) (6), (b) (7)(C)

(b) (6), (b) (7

(b) (6), (b) (7)(

(b) (6), (b) (7

(b) (6), (b) (7

(b) (6), (b) (7

(b) (6), (b) (7

(b) (6), (b) (7

(b) (6), (b)

(b) (6), (b) (7)(

(b) (6), (b) (7

(b) (6), (b) (7

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

Cases 22-CA-224139 et al.

- 6 -

Union

. The managers told Employee A that

had violated the Employer’s

policies regarding shift-trade requests because all such requests must be approved in

writing. Employee A responded with an oral account of the incident, including what

interpreted as a supervisor’s approval of the trade. The managers then recounted

Employee A’s past issues concerning time and attendance. The Employer issued

Employee A a final written warning and a three-day suspension with “time served.”2

On August 2, the Union filed a charge alleging, as subsequently amended,

that the Employer violated Section 8(a)(5), (3), and (1) in connection with the

investigatory interview of Employee A. Among other things, the Union alleged that

the Employer unlawfully failed to negotiate with the Union over a policy of

suspending employees for failing to provide a written statement, and unlawfully

threatened to suspend and suspended an employee for failure to make a written

statement.

ACTION

I

Section 8(a)(5), (3), and (1) in connection with the

investigatory interview of Employee A. Among other things, the Union alleged that

the Employer unlawfully failed to negotiate with the Union over a policy of

suspending employees for failing to provide a written statement, and unlawfully

threatened to suspend and suspended an employee for failure to make a written

statement.

ACTION

I. Changed Communication Practices

We conclude that the Employer has not violated the Act by ceasing its practice

of having nursing managers respond directly to phone calls, emails, and text

messages from the Union

and increasing HR’s involvement in grievance

processing because these were not material and significant changes.

An employer violates Section 8(a)(5) and (1) when it changes employee terms

and conditions of employment without first providing its employees’ union with notice

and an opportunity to bargain, unless the union waived the right to bargain about the

change.3 Grievance handling procedures are considered terms and conditions of

employment.4

2 Since Employee A had already missed three work shifts on suspension,

returned

to work immediately.

3 See, e.g., Murray American Energy, Inc., 366 NLRB No. 80, slip op. at 32-33 (May 7,

2018), enforced, --- F. App’x ----, 2019 WL 1239801 (D.C. Cir. Mar. 12, 2019).

4 See id., slip op. at 32; Public Service Co. of New Mexico, 360 NLRB 573, 583 (2014),

enforced, 843 F.3d 999 (D.C. Cir. 2016); Bethlehem Steel Co. (Shipbuilding Division),

136 NLRB 1500, 1502 (1962) (“[a] method for presenting and adjusting grievances

which deal with ‘wages, hours, and other terms and conditions of employment’ is

manifestly related to those matters,” and therefore is a mandatory subject of

bargaining), enf. denied on other grounds, 320 F.2d 615 (3d Cir. 1963).

(b) (6), (b) (7)(C)

(b) (6), (b) (

(b) (6), (b) (7

(b) (6), (b) (7)(C)

136 NLRB 1500, 1502 (1962) (“[a] method for presenting and adjusting grievances

which deal with ‘wages, hours, and other terms and conditions of employment’ is

manifestly related to those matters,” and therefore is a mandatory subject of

bargaining), enf. denied on other grounds, 320 F.2d 615 (3d Cir. 1963).

(b) (6), (b) (7)(C)

(b) (6), (b) (

(b) (6), (b) (7

(b) (6), (b) (7)(C)

(b) (6), (b) (7

Cases 22-CA-224139 et al.

- 7 -

However, this rule does not apply to changes that are not material, substantial,

or significant.5 In Public Service Co. of New Mexico, the Board found the following

three changes to a first-step grievance procedure to be material: (1) supervisors would

no longer go forward with discussion of a grievance unless the union described the

grievance with particularity; (2) in certain circumstances, supervisors would no longer

sign for receipt of a written grievance after meeting with a steward about the

grievance, which resulted in the employer refusing to advance grievances to the

second step; and (3) requiring a second supervisor to be present during the initial

grievance meeting.6 The Board found that “all three of these changes . . . created

unprecedented procedural hurdles and clearly impeded the processing of grievances.”7

However, the Board found insignificant a new requirement that union representatives

schedule grievance meetings with supervisors in advance where no evidence was

submitted that supervisors were unwilling to schedule time to discuss grievances or

that any grievances were untimely as a result.8

Here, the Employer, without bargaining, made changes that affected how the

parties resolved grievances in multiple respects, none of which establish a violation.

The Employer arguably changed the parties’ grievance handling procedure by

interposing HR as a coordinator for scheduling the discussion of grievances in the

first two steps of the contractual procedure

were untimely as a result.8

Here, the Employer, without bargaining, made changes that affected how the

parties resolved grievances in multiple respects, none of which establish a violation.

The Employer arguably changed the parties’ grievance handling procedure by

interposing HR as a coordinator for scheduling the discussion of grievances in the

first two steps of the contractual procedure. But the interposition of HR as scheduling

coordinator in the instant case was akin to the new scheduling requirement that the

Board found insignificant in Public Service Co. The Union has presented no evidence

that, because of the Employer’s changes, resolution of grievances through the parties’

contractual procedure has been delayed to a significant extent, or that the changes

have otherwise affected the processing of grievances through that procedure.9

Moreover, the Employer has not substituted HR personnel for the managerial

decisionmakers that the contract calls for, and the contractual language does not

5 Alamo Cement Co., 281 NLRB 737, 738 (1986).

6 360 NLRB at 574, 584.

7 Id. at 575.

8 Id. at 584

9 See Central Telephone Co. of Texas, 343 NLRB 987, 987, 1000 (2004) (HR rep’s

participation in grievance meeting by telephone rather than in person was

insignificant change where another management representative attended in person);

cf. Murray American Energy, 366 NLRB No. 80, slip op. at 1, 32-33 (change in hearing

location for certain grievance meetings from grievants’ place of work to location 15-30

minutes’ drive away was material); Barnard College, 340 NLRB 934, 934 & n.5, 944-

45 (2003) (refusing to meet with two union representatives, rather than one, at

grievance meeting was unlawful change).

attended in person);

cf. Murray American Energy, 366 NLRB No. 80, slip op. at 1, 32-33 (change in hearing

location for certain grievance meetings from grievants’ place of work to location 15-30

minutes’ drive away was material); Barnard College, 340 NLRB 934, 934 & n.5, 944-

45 (2003) (refusing to meet with two union representatives, rather than one, at

grievance meeting was unlawful change).

Cases 22-CA-224139 et al.

- 8 -

preclude HR acting as a scheduling coordinator. Therefore, this was not a material,

substantial, or significant change.

The Employer also changed its practice regarding informal communications

outside of the grievance process. Thus, for years, direct lines of contact between the

Union

and nursing management, including contact by email, phone, and

text message, served as an expeditious informal means of resolving disputes both

before and after the disputes were submitted to the formal grievance process. The

elimination of that practice, together with the Employer’s greater reliance on HR to

communicate with the Union, necessarily forces the Union to rely more heavily on the

contractual grievance procedure and/or deal more frequently with HR instead of or in

addition to nursing managers. However, the informal lines of communication that the

parties at times relied on to resolve grievances were not themselves part of the

parties’ grievance handling procedure; they were an alternative to that procedure,

and the Employer’s unilateral decision to cease relying on that alternative did not

affect the grievance handling procedure itself. In other words, the Employer has

simply changed its lineup of representatives for dealing with the Union, which it has

the right to do.10 This too was not a material, substantial, or significant change to

employee terms and conditions of employment.

The Employer’s changed practices also did not violate Section 8(a)(1) even if the

Employer adopted them in retaliation for Section 7 activity

. In other words, the Employer has

simply changed its lineup of representatives for dealing with the Union, which it has

the right to do.10 This too was not a material, substantial, or significant change to

employee terms and conditions of employment.

The Employer’s changed practices also did not violate Section 8(a)(1) even if the

Employer adopted them in retaliation for Section 7 activity. Section 8(a)(1) prohibits

an employer from “interfer[ing] with, restrain[ing], or coerc[ing] employees in the

exercise of the rights guaranteed in section 7.”11 In determining whether an

employer’s conduct violated Section 8(a)(1), “[t]he test is whether the employer

engaged in conduct which, it may reasonably be said, tends to interfere with the free

exercise of employee rights under the Act.”12 Conduct violating Section 8(a)(1)

includes certain forms of retaliation for the protected Section 7 activity of employees

or their bargaining representative.13

10 See New Brunswick General Sheet Metal Works, 326 NLRB 915, 921 (1998)

(employer “had every right to choose who would be on its negotiating committee just

as the Union selected its own committee”).

11 29 U.S.C. § 158(a)(1).

12 American Freightways Co., Inc., 124 NLRB 146, 147 (1959) (citing NLRB v. Illinois

Tool Works, 153 F.2d 811 (7th Cir. 1946)); see also Gossen Company, 254 NLRB 339,

347 (1981) (espousing same well-established principle), modified on other grounds,

719 F.2d 1354 (7th Cir. 1983).

13 See, e.g., Napleton 1050, Inc. d/b/a Napleton Cadillac of Libertyville, 367 NLRB

No. 6, slip op. at 3 (Sept. 28, 2018) (employer’s removal of employees’ toolboxes from

9) (citing NLRB v. Illinois

Tool Works, 153 F.2d 811 (7th Cir. 1946)); see also Gossen Company, 254 NLRB 339,

347 (1981) (espousing same well-established principle), modified on other grounds,

719 F.2d 1354 (7th Cir. 1983).

13 See, e.g., Napleton 1050, Inc. d/b/a Napleton Cadillac of Libertyville, 367 NLRB

No. 6, slip op. at 3 (Sept. 28, 2018) (employer’s removal of employees’ toolboxes from

(b) (6), (b) (7)(C)

Cases 22-CA-224139 et al.

- 9 -

The Union has presented some evidence indicating that the Employer’s

changed communication practices were motivated in part by hostility to the Union

protected Section 7 activity. However, even assuming that the Employer

acted with a retaliatory motive, the Employer’s conduct lacks a tendency to interfere

with the free exercise of Section 7 rights. As explained above, the Employer has not

materially changed the parties’ grievance procedure, and the Employer has not

changed any other term or condition of employment. Although the Union would prefer

the continuation of managers’ prior responsiveness to the Union

contacts,

the

remains able to address grievances and other matters with the

Employer. Accordingly, the Employer’s conduct did not interfere with the Union

or other employees’ exercise of their Section 7 rights.14

II. The Investigatory Interview

We conclude that the Employer’s conduct vis-à-vis Employee A during that

employee’s investigatory interview did not violate the Act because there is insufficient

evidence that the Employer has changed its practice where Employee A was not

suspended for failing to provide a written statement

the Union

or other employees’ exercise of their Section 7 rights.14

II. The Investigatory Interview

We conclude that the Employer’s conduct vis-à-vis Employee A during that

employee’s investigatory interview did not violate the Act because there is insufficient

evidence that the Employer has changed its practice where Employee A was not

suspended for failing to provide a written statement.

Under settled Board law, new work rules that invoke discipline are mandatory

subjects of bargaining.15 In Murtis Taylor Human Services Systems, the Board found

unlawful an employer’s unilateral imposition of a requirement that an employee

subjected to an investigatory interview review the notes the employer made during

the interview, make any necessary corrections, and then sign the document to attest

to its veracity.16 Here, however, there was no similar change because the Employer

employer’s car dealership unlawful because action was retaliation for employees’

protected strike activity).

14 The Employer also did not unlawfully threaten the Union

with discipline

for attempting to contact nursing managers. The Employer said, in the context of

explaining the new policy: “Do not place any telephone calls or emails regarding

NJNU issues to members of the Nursing Management Team.” In context, this

language would be understood as a statement that the Employer was changing its

communication practices, and not as a threat of discipline should the Union

attempt to contact managers.

15 Murtis Taylor Human Services Systems, 360 NLRB 546, 570 (2014); Toledo Blade

Co., 343 NLRB 385, 387 (2004).

16 360 NLRB at 548 & n.14, 570.

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

he Employer was changing its

communication practices, and not as a threat of discipline should the Union

attempt to contact managers.

15 Murtis Taylor Human Services Systems, 360 NLRB 546, 570 (2014); Toledo Blade

Co., 343 NLRB 385, 387 (2004).

16 360 NLRB at 548 & n.14, 570.

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)

Cases 22-CA-224139 et al.

- 10 -

did not in fact suspend Employee A for failure to provide a written statement.17 Thus,

although the interviewing manager’s statements to Employee A and the Union

linked Employee A’s suspension with

failure to provide a written

statement, the evidence indicates that the Employer suspended Employee A “pending

investigation” on

primarily because it believed

had missed a

scheduled shift without authorization. The duration and paid or unpaid nature of

Employee A’s suspension were unclear until the Employer, at a meeting on

,

issued Employee A an unpaid three-day suspension with “time served.” There was no

mention at that meeting of Employee A’s refusal to provide a written statement and

Employee A returned to work without providing such a statement. Under these

circumstances, we conclude that the Employer did not violate Section 8(a)(5) by

implementing a discipline-backed rule requiring written statements.

The Employer’s conduct vis-à-vis Employee A also did not violate Section

8(a)(1) under NLRB v. J. Weingarten, Inc.18 because the Employer’s conduct would

not reasonably tend to discourage employees from maintaining grievances or

requesting a Weingarten representative.19

Based on the foregoing, the Region should dismiss the charges, absent

withdrawal.

/s/

J.L.S.

ADV.22-CA-224139.Response.St.Barnabas.

17 The Employer concedes that it had no policy requiring written statements before

this incident, and indeed contends that it still has no such policy

ngarten representative.19

Based on the foregoing, the Region should dismiss the charges, absent

withdrawal.

/s/

J.L.S.

ADV.22-CA-224139.Response.St.Barnabas.

17 The Employer concedes that it had no policy requiring written statements before

this incident, and indeed contends that it still has no such policy. The Employer’s

defense to the charge allegations is that it suspended Employee A pending

investigation because of

underlying conduct, and not because

refused to

provide a written statement.

18 420 U.S. 251 (1975).

19 Cf. Management & Training Corporation, 366 NLRB No. 134, slip op. at 6-7 (July

25, 2018); New Jersey Bell Telephone Co., 308 NLRB 277, 279 n.10 (1992).

(b) (6), (b) (7)(C)

(b) (6), (b)

(b) (6), (b) (

(b) (6), (b) (7)(

(b) (6), (b)

(b) (6), (b) (7

(b) (6), (b) (7)(C)

(b) (6), (b) (7)(C)