[SYSTEMS NOTE: ORDER OF COURT ATTACHED.] March 30, 1993 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
No. 90-2047
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
v.
HOSPITAL SAN FRANCISCO, INC.,
Respondent.
ON PETITION FOR ADJUDICATION IN CONTEMPT
Before
Torruella, Cyr and Boudin, Circuit Judges.
William Wachter, Assistant General Counsel, Contempt
Litigation Branch, Joseph F. Frankl, Deputy Assistant General
Counsel, and Dona A. Nutini, Attorney, on Memorandum in Support
of Petition for Adjudication in Contempt, for petitioner. Tristan Reyes-Gilestra and Fiddler, Gonzalez & Rodriguez on
Memorandum in Opposition to Petition for Adjudication in Contempt, for respondent.
Per Curiam. The National Labor Relations Board
petitions for an adjudication of civil contempt against
Hospital San Francisco, Inc. ("the hospital"). In 1989, the
Board ruled that the hospital had violated 8(a)(5) and (1)
of the National Labor Relations Act by refusing to recognize
and bargain with a union representing a unit of registered
nurses. In a judgment dated February 5, 1991, this court
enforced the Board's order. As part of that judgment, the
hospital was required to:
1. Cease and desist from:
(a) Refusing to recognize and bargain with the Union as the exclusive collective-bargaining representative of its employees in the appropriate unit. ....
(c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act:
(a) Upon request, bargain collectively concerning rates of pay, wages, hours of employment, and other terms and conditions of employment with the Union ... and, if an agreement is reached, embody it in a signed contract.
The Board contends that the hospital violated the judgment in
October 1991 by unilaterally implementing a work-schedule
change after speaking directly to the employees and without
consulting the union. We agree and therefore find the
hospital in contempt.
I.
The facts are undisputed and straightforward.1 They
derive entirely from the hospital's pleadings and exhibits,
particularly from an affidavit submitted by a hospital
administrator who was involved in union bargaining. In
October 1991, in order to compensate for a shortage of nurses
and to reduce absenteeism, the hospital decided to implement
an extended-work-schedule program on a voluntary, trial
basis. Under this plan, participating nurses would work
twelve-hour shifts seven times every two weeks, rather than
the customary eight-hour shifts five times per week. Some
changes in wages and differentials would also be involved.
At the monthly meetings held in various hospital departments
that same month, hospital supervisors presented the plan to
the nurses. No negotiation occurred over its terms; rather,
the terms were described and the nurses were given the option
of participating or not. An undisclosed number of nurses
agreed to participate, each of whom signed a document
acknowledging that such participation was voluntary.
1. Although the Board has moved, in the alternative, for reference to a special master, it insists that there are no material factual issues in dispute. The hospital does not disagree; in fact, the hospital (like the Board) has moved for summary adjudication. We agree that disposition of this matter can be reached on the basis of the present record. See, e.g., NLRB v. Holyoke Water Power Co., 793 F.2d 18, 18
(1st Cir. 1986) (adjudging respondent in contempt "[o]n the basis of the papers" presented).
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On November 20, 1991, the date of the next regularly
scheduled bargaining session,2 the hospital informed the
union that the extended-schedule plan had been implemented.
The union expressed interest, and the two sides held at least
five additional meetings over the next four months at which,
among other matters, the details of such a program were
negotiated. The record before us describes such negotiations
up through March 25, 1992, at which point agreement had been
reached with respect to all but one issue regarding this
program.
II.
Where the Board seeks an adjudication of civil contempt,
it must present clear and convincing evidence that the
company has engaged in contumacious behavior. See, e.g.,
NLRB v. Trailways, Inc., 729 F.2d 1013, 1017 (5th Cir. 1984);
NLRB v. International Shoe Corp., 423 F.2d 503, 504 (1st Cir.
1970) (per curiam); cf. Porrata v. Gonzalez-Rivera, 958 F.2d
6, 8 (1st Cir. 1992) (contempt of consent decree). As this
is a proceeding in civil, rather than criminal, contempt, the
Board need not establish willfulness or bad faith. See,
e.g., McComb v. Jacksonville Paper Co., 336 U.S. 187, 191
(1949) ("An act does not cease to be a violation of a law and
2. The record indicates that the previous bargaining session had been held on June 26, 1991. Apart from this reference, the precise status of the hospital's negotiations with the union is not described. It is clear, however, that no impasse had occurred.
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of a decree merely because it may have been done
innocently."); NLRB v. Maine Caterers, Inc., 732 F.2d 689,
690 (1st Cir. 1984) ("Respondents' defense of good faith is
beside the point in this civil contempt proceeding.").
"[T]he only issue is the Company's actual compliance with
this Court's orders ...." Trailways, Inc., 729 F.2d at 1017.
The Board argues that the hospital's actions prior to
November 20, 1991 were contumacious. Specifically, the
hospital is said to have violated 8(a)(5) and (1) of the
Act by dealing directly with employees and by unilaterally
changing working conditions. We agree. Implicit in the
obligation to bargain in good faith "is the principle that
the employer is not to go behind the union's back and
negotiate with individual workers, nor otherwise to undermine
the union's status as exclusive bargaining representative."
Szabo v. U.S. Marine Corp., 819 F.2d 714, 718 (7th Cir.
1987); accord, e.g., Medo Photo Supply Corp. v. NLRB, 321
U.S. 678, 683-85 (1944); Maine Caterers, Inc., 732 F.2d at
690-91; NLRB v. U.S. Sonics Corp., 312 F.2d 610, 615 (1st
Cir. 1963); R. Gorman, Labor Law c. 19, 2 (1976). We think
that, by meeting with the nurses in October and inviting them
to participate in the extended-schedule program, the hospital
contravened this principle.
The hospital stresses that it engaged in no individual
negotiations with the nurses but simply offered the plan on a
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take-it-or-leave-it basis. This is true but beside the
point. Proposing a new program directly to employees
constitutes a form of negotiation encompassed by the
prohibition on direct dealing, regardless of whether the
individual terms of that plan are negotiable. See, e.g.,
Hajoca Corp. v. NLRB, 872 F.2d 1169, 1176 (3d Cir. 1989)
(direct dealing "also consists of presenting an entirely new
proposal that potentially undermines the authority of the
duly elected bargaining representatives"). The hospital also
argues that its overtures to the nurses were justified in
that it was necessary to gauge their interest in the plan
before raising the issue with the union. Soliciting the
views of employees concerning possible changes in working
conditions can itself violate 8(a)(5) and (1). See, e.g.,
NLRB v. Wallkill Valley General Hosp., 866 F.2d 632, 635-36
(3d Cir. 1989) (employer survey seeking the opinion of
employees as to medical and dental benefits was unlawful).
In any event, after confirming the nurses' interest, the
hospital did not stop to consult with the union; it instead
went ahead and implemented the program.
It is well settled that "an employer's 'unilateral
action' with respect to mandatory subjects of collective
bargaining ... is considered an unlawful refusal to bargain."
Soule Glass and Glazing Co. v. NLRB, 652 F.2d 1055, 1084 (1st
Cir. 1981); accord, e.g., First Nat'l Maintenance Corp. v.
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NLRB, 452 U.S. 666, 674-75 (1981); NLRB v. Katz, 369 U.S.
736, 747 (1962) (regardless of its subjective good faith,
"[u]nilateral action by an employer without prior discussion
with the union ... amount[s] to a refusal to negotiate about
the affected conditions"); Isla Verde Hotel Corp. v. NLRB,
702 F.2d 268, 271 (1st Cir. 1983); R. Gorman, supra, at c.
20, 10.3 The hospital offers various justifications for
its unilateral implementation of the extended-schedule
program, none of which proves persuasive.
It first explains simply that it did not consult with
the union in October because the next regular bargaining
session was not scheduled until November 20. This of course
falls well short of a valid excuse, especially absent any
showing (1) that the extended-schedule program needed to be
implemented on an emergency basis or (2) that the union could
not have been contacted through other channels.
Second, the hospital argues that its actions were not
violative of the Act because the program was initiated only
on a voluntary and experimental basis. Yet it cites no
3. In Soule Glass, we identified five circumstances in which
unilateral action will not violate 8(a)(5): (1) where the action involves a matter which is not a mandatory subject of bargaining; (2) where a negotiating impasse has been reached; (3) where the changes merely preserve the "dynamic status quo"; (4) where the union has waived its right to bargain on the issue; and (5) where the action involves fundamental changes which are "peculiarly matters of management prerogative." 652 F.2d at 1084-85; accord, e.g., R. Gorman,
supra, at c. 20, 11-15. The instant case falls into none
of these exceptions.
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authority for--and we find unpersuasive--the view that these
characteristics nullified the duty to bargain. The fact that
participation therein was voluntary does not alter the fact
that the extended-schedule program entailed changes in hours
and wages--matters that were a mandatory subject of
bargaining. Cf. Standard Fittings Co. v. NLRB, 845 F.2d
1311, 1313-14 (5th Cir. 1988) (offering employees the choice
of (1) lower wages and a full work week or (2) higher wages
and reduced hours violated Act). And as the Board properly
notes, employers could readily circumvent the bargaining
requirement by characterizing any proposed change as
"experimental." The hospital explains that it was necessary
to implement the program on a trial basis in order to gauge
employee interest. Yet as noted above, this rationale
provides no justification for initiating the program without
consulting the union.
Finally, the hospital argues that, because it
subsequently engaged in extended negotiations with the union
concerning the program, any earlier disregard of its
bargaining duties was merely a technical violation that
should not warrant a contempt adjudication.4 It is true
that the unlawful conduct here was both short-lived and less
than flagrant in nature. And while "[t]he granting or
4. The hospital's corollary suggestion that its subsequent conduct retroactively rehabilitated its earlier actions can be dismissed summarily.
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withholding of [a contempt sanction] is not wholly
discretionary with the court," NLRB v. Warren Co., 350 U.S.
107, 113 (1955), we nonetheless retain both the discretion to
withhold a contempt adjudication for de minimis violations,
see, e.g., NLRB v. Ralph Printing and Lith. Co., 379 F.2d
687, 691-92 (8th Cir. 1967), and the obligation to tailor any
remedy to the circumstances at hand, see, e.g., Trailways,
Inc., 729 F.2d at 1023 ("sanctions imposed ... are to be
adapted to the particular circumstances of each case");
Florida Steel Corp. v. NLRB, 648 F.2d 233, 239-40 (5th Cir.
1981) (prospective fines deemed unnecessary because
violations were not "flagrant"). Were we writing on a clean
slate, the hospital's contentions in this regard might be
worthy of closer consideration. Yet this is the third
occasion in recent years on which the hospital has been
deemed guilty of unfair labor practices against the union.
The hospital suggests that such earlier violations were
isolated events undertaken in good faith. To the contrary,
this court noted in an April 1991 order that the record
contained evidence of "continued recalcitrance." Even more
to the point, an administrative law judge found in December
1991 that the hospital had engaged in "pretexts" and "shams"
in order to avoid bargaining, and that it had "never
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sincerely attempted to reach an agreement with the Union."5
As was noted in NLRB v. J.P. Stevens & Co., 538 F.2d 1152
(5th Cir. 1976):
[A]pparently insignificant unilateral action that may constitute de minimis activity when undertaken
by a company with a clean slate in labor law, must be viewed more warily when committed by one who enjoys a record for intransigence .... When a company has historically evidenced disdain for employees' rights and the Congressional mandate, its prior history is relevant to the question of a de minimis failure to bargain.
Id. at 1163. In light of the hospital's history of
intransigence toward the union, we think its actions in
October 1991 constitute sufficient grounds for an
adjudication in contempt. At the same time, given that the
violations here were not flagrant in nature, we think it
unnecessary to impose prospective fines as requested by the
5. In particular, the ALJ found as follows:
[T]he credible record in this case clearly establishes that the [hospital] has continued its recalcitrance and is continuing its evasion of its statutory obligations by utilizing the withdrawal of recognition and the filing of its RM petition as a new pretext for a refusal to bargain. The [hospital] has never sincerely attempted to reach an agreement with the Union. .... The [hospital's] withdrawal of recognition and the filing of the RM petition were pretexts and shams, the real purpose for which was the delaying of collective bargaining and ultimately the ousting of the Union from the [hospital's] premises.
This decision was not challenged by the hospital and was later upheld by the Board.
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Board. See, e.g., Trailways, Inc., 729 F.2d at 1023-24;
Florida Steel Corp., 648 F.2d at 239-40.
For these reasons, we adjudge the hospital to be in
civil contempt of this court's judgment of February 5, 1991.
We require the hospital and its officers, agents, successors
and assigns to purge themselves of contempt by complying with
the remedial order attached to this opinion.
The Board's motion for summary adjudication is allowed,
and the hospital is adjudged in civil contempt. The Board's
motion for reference to a special master is denied. The
hospital's petition to vacate the February 5, 1991 order and
its motion for summary adjudication are each denied. The
hospital and its officers, agents, successors and assigns
shall abide by the remedial order attached to this opinion.
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March 30, 1993 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 90-2047
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
v.
HOSPITAL SAN FRANCISCO, INC.,
Respondent.
ORDER OF COURT
Entered March , 1993
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Upon the petition of the National Labor Relations Board
for adjudication in civil contempt and for other civil relief,
and the proceedings held pursuant thereto, and good cause having
been shown, it is hereby ordered that Hospital San Francisco,
Inc. ("the Respondent"), is adjudged in civil contempt of this
Court's judgment of February 5, 1991.
It is further ordered that the Hospital, its officers,
agents, successors and assigns, shall:
(a) Fully comply with and obey this Court's Judgment of
February 5, 1991 ("the Judgment"), and not in any way, by action
or inaction, engage in, induce, or encourage any violation of
said Judgment; specifically, the Respondent shall cease and
desist from:
(1) Failing or refusing to bargain in good
faith with Unidad Laboral de Enfermeras(os) y
Empleados de la Salud ("the Union") as the exclusive
collective-bargaining representative of its employees
in the bargaining unit with respect to wages, hours,
working conditions, or other terms and conditions of
employment. The Hospital shall not be heard to
contend that the Union lacks the support of a
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majority of the bargaining unit at any time within
one year of the date of this adjudication.
Thereafter, the Hospital shall not withdraw
recognition from the Union without the prior approval
of this Court;
(2) Changing terms and conditions of employment
of employees in the bargaining unit without first
notifying and bargaining with the Union to agreement
or good faith impasse;
(3) Dealing directly with employees in the
bargaining unit with respect to wages, hours, or
other terms or conditions of employment, in disregard
of the Union or any other lawfully designated or
selected exclusive bargaining representative;
(4) In any other manner interfering with,
restraining, or coercing employees in the exercise of
their rights under Section 7 of the National Labor
Relations Act (29 U.S.C. 157).
(b) Take the following affirmative action:
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(1) Upon request, bargain in good faith with
the Union as the exclusive collective-bargaining
representative of the employees in the appropriate
unit with respect to wages, hours, or other terms and
conditions of employment, and embody any
understanding reached in a signed agreement;
(2) Upon the Union's request, rescind any or
all changes in terms or conditions of employment of
bargaining unit employees implemented on or after
February 5, 1991;
(3) Post copies of an appropriate Notice to
Employees together with copies of this Order, in
English and Spanish, the cost of translation to be
borne by Respondent, in conspicuous places at its
premises, including all places where notices to
employees are customarily posted. Copies of said
Notice, on forms provided by the Board, after being
duly signed by a representative official of the
Respondent, shall be posted immediately upon receipt
thereof, and be maintained for a period of sixty (60)
consecutive days in clearly legible condition, and
Respondent shall ensure that they are not altered,
defaced, or covered by any other material;
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(4) Within ten (10) days after receiving the
aforesaid Notice from the Board, duplicate and mail,
at its own expense, a copy of the Notice and this
Order to all current employees and former employees
employed by Respondent at any time since February 5,
1991, and provide to the Regional Director for the
Board's Twenty-Fourth Region a list of the names and
addresses of all employees to whom said documents
were mailed, together with proof of mailing;
(5) Within fourteen (14) days after receiving
the aforesaid Notice from the Board, an appropriate
representative of Respondent shall read the Notice to
its employees. Respondent shall give the Regional
Director at least one week's notice to permit a Board
agent to attend the reading, at the option of the
Regional Director;
(6) File sworn statements with the Clerk of
this Court, and a copy thereof with the Regional
Director of the Board's Twenty-Fourth Region, within
thirty (30) days after the entry of this Order,
showing what steps the Respondent has taken to comply
with this Order; and
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(7) Pay to the Board all costs and expenses,
including reasonable attorneys' fees, incurred by the
Board in the investigation, preparation, and final
disposition of this proceeding, said amount, unless
agreed to by the parties, to be fixed by further
order of the Court upon submission by the Board of a
verified statement of such costs and expenses.
Should any dispute arise as to which the court shall
determine that a hearing is desirable, the Court may
refer such dispute to a special master, upon such
terms as the Court shall determine, for a report and
recommendation.
IT IS FURTHER ORDERED that the Board be permitted to
obtain discovery from the Respondent and any other person, in the
manner provided by the Federal Rules of Civil Procedure, upon any
matter reasonably related to compliance with the Court's 1991
Judgment and this Order. Should a dispute arise between the
parties respecting such discovery, upon the motion of either
party, the Court may appoint a special master, with such powers
and duties as the Court shall specify, to supervise the
discovery. Failure to engage in discovery in the manner required
by the Federal Rules of Civil Procedure shall be treated as
contempt of this Order.
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By the Court:
Clerk.
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