|
PARTICIPATING REPRESENTATIVES
For the Complainant:
Daniel A. Cocuzzo, Esquire, Associate General Counsel, AFSCME
For the Respondent:
Marc Hathaway, Esquire, Sullivan County Attorney
Also appearing as witnesses:
1. Dorothy Cowitt, Restorative Aide
2. Jack McMath, Union Field Representative
3. Ed Gil De Rubio, County Manager
4. Robert Hemenay, Administrator
BACKGROUND
AFSCME Council 93, Local 3438 (hereinafter referred to as
the "Union") filed an unfair labor practice charge on November 19,
2002 on behalf of the Sullivan County Nursing Home Employees alleging that the
Sullivan County Nursing Home (hereinafter referred to as the
"County"), acting through their agents, including its Business
Manager, Administrator and Director of Human Services, unilaterally changed
the hours of work of certain bargaining unit members and refused to bargain
over the impact of the change in hours. The Union asserts that such actions
constitute a breach of the parties' collective bargaining agreement and
violate certain provisions of RSA 273-A (e), (g), (h) and (i) thereby
committing an unfair labor practice.
The Union requests that the PELRB make a finding that the
County has committed an unfair labor practice and issue a cease and desist
order to compel a return to the previously scheduled hours of work and to
negotiate the impact of any proposed change in hours. The Union further
requests that it be reimbursed for the costs necessary to bring this complaint
and asks that a copy of the PELRB's Order be publicly posted at the work site.
The County filed its Answer with the PELRB on December 4,
2002. In essence, it agrees with the factual allegations alleged by the Union
that the County has changed hours of work but asserts that all alleged changes
have been done within the authority possessed by it under the provisions of
RSA 273:A and the parties' collective bargaining agreement (CBA). For its
part, the County requests that the PELRB find that no unfair labor practice
has occurred.
A Pre-Hearing Conference was conducted on January 3, 2003 at
which time the parties discussed pending and indicated that they would attempt
to submit a Joint Stipulation of Facts and List of Joint Exhibits, submission
of legal memoranda and a waiver of the need for an evidentiary hearing. They
were not completely successful, resulting in the evidentiary hearing conducted
on February 20, 2003.
The parties did submit joint exhibits and stipulate to
certain facts. Those facts are incorporated in the list of Findings of Facts
that follows. At the hearing, both parties were represented by legal counsel
and presented exhibits. The parties also presented witness testimony and had
the opportunity to cross-examine the witnesses. At the close of evidence, the
record was left open until March 31, 2003 for the submission of legal
memoranda from the parties in support of their respective positions.
FINDINGS OF FACT
1. Sullivan County employs individuals in the operation of
the Sullivan County Nursing Home and thereby is a "public employer"
within the meaning of RSA 273-A:1 X.
2. AFSCME Council #93, Local 3438 is the duly certified
bargaining agent for certain Sullivan County Nursing Home employees as
previously certified by the Public Employee Labor Relations Board, including
Restorative Therapy Aides.
3. The County and the Union are parties to a CBA, the terms
of which governed the parties' relationship at the time of the County's
actions at issue in this matter. The agreement covers the time period of July
1, 2000 through June 30, 2003. Article II of the parties' CBA is the so-called
"management rights" clause and provides:
ARTICLE II
MANAGEMENT CLAUSE
Except as specifically limited or abridged by the terms
of this Agreement, the management of the Sullivan County Nursing Home, in
all its phases and details shall remain vested exclusively in the Employer
and its designated agents. The Employer and its agents shall have
jurisdiction over all matters concerning the management and operation of
said Facility, including, but not limited to, the right to decide the
functions, programs and methods to be used for all of the operations of
said Facility, including the use of technology, the Facility's
organizational structure and the selection, direction and number of all
personnel so as to continue public control of governmental functions as
well as all rights retained by virtue of New Hampshire RSA Chapter 273-A.
It is further specifically agreed that this Article shall not be subject
to the Grievance Procedure as hereinafter set forth.
4. "The phrase 'managerial policy within the exclusive
prerogative of the public employer' shall be construed to include but shall
not be limited to the functions, programs and methods of the public employer,
including the use of technology, the public employer's organizational
structure, and the selection, direction and number of its personnel, so as to
continue public control of governmental functions." RSA 273-A:1 XI.
5. Sullivan County has a job description for a position
entitled "Restorative Therapy Aide" that among other duties
provides: "9. Perform Certified Nursing Assistant duties and
responsibilities, as required." (Joint Exhibit #4.) Sullivan County
presently employs three (3) Restorative Therapy Aides.
6. Restorative Therapy Aides, as described in Joint Exhibit
#4 and under the Recognition Clause (Article I) of the parties' CBA are direct
care nursing staff.
7. Prior to the CBA being signed Restorative Therapy Aides
commonly were assigned to a day shift, Monday thru Friday and the position had
been previously posted with those hours as evidenced by the February 16, 1996
posting. (Joint Exhibit #5).
8. Credible testimony was offered establishing that the
Restorative Therapy Aides who have worked on Saturday have performed Certified
Nursing Assistant duties and have not yet performed duties that can only be
provided by Restorative Therapy Aides.
9. Prior to the current CBA being signed, and until August
of 2002 when the Sullivan County Nursing Home was approved by the Centers for
Medicare & Medicaid Services (in August of 2002), to become a Skilled
Nursing Facility, the Restorative Aides were routinely scheduled to work day
shifts, Monday thru Friday.
10. Sullivan County, subsequent to becoming a Skilled
Nursing Facility, has had the Restorative Aides work a rotating schedule that
requires one Restorative Therapy Aide to work on each Saturday.
11. Sullivan County is paying the Restorative Therapy Aides,
when they are scheduled to work on Saturday, the shift differential for
weekend work as required in the CBA.
12. Uncontroverted testimony from Mr. Hemenway established
that the designation of "Skilled Nursing Home" requires that the
County have restorative services available at the nursing home six days each
week and only by having a Restorative Therapy Aide on the premises can the
County provide those required services, if needed by a patient, and meet the
federal regulations in order to maintain the status of " Skilled Nursing
Facility". He also indicated that the actions undertaken to achieve the
"Skilled Nursing Facility" designation and consequently cause the
rescheduling of Restorative Therapy Aides were motivated by budgetary
considerations.
13. On or about August 26, 2002 the County placed a
"Notice to All Staff" (Union Exhibit #1) that was issued by its
administrator in a "Memo book" that all employees were accustomed to
reviewing regularly. This notice informed the employees that the nursing home
had been approved to become a federally designated "Skilled Nursing
Facility" effective September 15, 2002. It did not inform any employee
that the existing work schedule for Restorative Aids would be changed by the
County to meet the standard required by its designation as a "Skilled
Nursing Facility". (The significance of a designation of "Skilled
Nursing Facility" is that the nursing home can accept Medicare patients
for treatment).
14. At some time on or after August 26, 2002, the Director
of Nursing informed the Restorative Aids that the work schedule that they had
been working, namely shifts on Monday through Friday from 6:00AM to 2:00 PM,
would be changed in a manner that would cause each of them to work a Saturday
shift in a cyclical rotation. Further, in that week for which a Restorative
Therapy Aide was to work a Saturday shift, the workweek would be 6:00 AM to
2:00 PM Monday, Tuesday, Wednesday, Thursday, and Saturday. The total regular
hours would remain at forty (40) hours each week. Also, the differential pay
stated in the parties' CBA for weekend work would be paid to the Restorative
Aid for the work performed on Saturday.
15. On August 28, 2002 and October 7, 2002 the Union's NH
Coordinator wrote to the county requesting first, by letter dated August 28,
2002 (Union Exhibit #2) to discuss the proposed change, and then by letter of
October 7, 2002 to demand bargaining about the change. (Union Exhibit #3).
16. The County refused to bargain over the change in
schedule affecting the Restorative Therapy Aides not through a written
response to the Union's requests, but by the County Manager's reply to the
Union's NH Coordinator's oral inquiry prior to a negotiations session. The
request to bargain the impact of the change of hours was not included on the
list of issues included on the Union's list of demands provided to the County
during negotiations. However, at that time, the Union had filed a separate
grievance in connection with the change of schedule.
17. Article X of the parties' CBA is entitled "Hours of
Work and Overtime." It provides that the "normal workweek for
full-time employees is forty (40) hours exclusive of overtime." (Joint
Exhibit #1).
18. When a Restorative Therapy Aide is scheduled to work on
a weekend, that employee is paid additional base pay and a weekend
differential set forth in CBA Article XI. (Joint Exhibit #1).
19. The County admitted that it recognizes it's obligation
to bargain under RSA Chapter 273-A and is prepared to bargain with the Union
on this issue if the Union takes the appropriate steps to bring this issue to
the bargaining table in future negotiations.
DECISION AND ORDER
The Public Employee Labor Relations Board (PELRB) has exclusive primary
jurisdiction over complaints filed by the exclusive representatives of public
employee associations against public employers and vice versa. RSA
273-A: 6. This is particularly true where the complaint involves conduct
alleging an unfair labor practice under the provisions of RSA-A:5. In this
case, the parties have entered into a collective bargaining agreement that
spanned the time period during which the Union alleges that the County
undertook a unilateral action that violates both the statute and the parties'
collective bargaining agreement.
In or about August 2002 the County informed the members of
the Union that the nursing home had received federal approval to act as a
"Skilled Nursing Facility." (Union Exhibit #1). The effective date
of the facility's change in status, that would henceforth allow it to receive
and care for Medicare patients, was September 15, 2002. As a condition for
obtaining that operational level of approval for the facility, the County was
obligated to make restorative care available six days each week instead of the
previous five day availability of restorative care for patients at the
facility. (Finding of Fact #12). To meet this obligation, the County's
Director of Nursing told the three Restorative Therapy Aides employed by the
county that each would have to work a Saturday in a rotation cycle. This
resulted in a change from the previous work week of a Restorative Therapy Aide
from the Monday-Friday 6:00AM - 2:00PM to a schedule consisting of 6:00AM -
2:00 PM shifts on Monday, Tuesday, Wednesday, Thursday and Saturday during an
assigned rotation week. (Finding of Fact #14) The total number of hours
remained at forty per week consistant with Article X of the parties' CBA
(Joint Exhibit #1) exclusive of overtime. (Finding of Fact #17). When a
Restorative Therapy Aide worked a shift on a Saturday, the employee received a
pay differential as provided in the parties' CBA Article XI. (Finding of Fact
#18).
The issue, then, is whether the County's change in the
workweek of Restorative Therapy Aides that required them report to work on a
Saturday, albeit on a rotating basis, is violative of RSA 273-A:5 I (e), (g),
(h) or (i) or constitutes a breach of the parties' CBA. Considering the
parties' filings in this case, all of the exhibits and testimony presented at
the hearing the Hearing Officer does not find that the actions undertaken by
the County constitute a violation of the statute.
In cases such as this one, one must consider the obligation
of the public employer to negotiate "terms and conditions of
employment", a category that includes hours of employment and also
consider the so-called "managerial policy" exclusion found at RSA
273-A:l XI. This exclusion gives to public employers the right to determine
their organizational structure, to determine the number and direction of their
employees and to continue public control of governmental functions." The
County, as an entity of government in the "business" of operating a
nursing home, was obligated to do so responsibly and reasonably, within the
confines of duly promulgated regulations, and to render an acceptable level of
care, to all patients, be they Medicaid patients or, subsequent to September
15, 2002, Medicare patients. They must, in a reasonable manner, do so
consistent with necessary program regulations in caring and providing for
patients in a residential setting. Such care would include meeting the
requirement of a "Skilled Nursing Facility" to have restorative care
available six days each week. The County's focus in making the change was to
have that restorative care available. From the evidence presented, it can only
do so by having a qualified Restorative Therapy Aide in the facility six days
each week. The focus of much of the testimony of the Union witnesses was that
the Restorative Therapy Aides are not performing restorative care when they
are at work on Saturday. That focus misplaced. It is both reasonable and
responsible for the County to operate its facility by scheduling a qualified
Restorative Therapy Aide to be present in the facility so that the care can be
available. It is likewise both reasonable and responsible for the County to
expect that, since the Restorative Therapy Aide is qualified and obligated to
perform the services of a certified nursing assistant as well, that the
employee not stand idle on Saturday, but perform the services of a certified
nursing assistant, as required.
Considering the exhibits submitted in this case and weighing
the credibility of each witness's testimony as it relates to the issue here,
the Hearing Officer finds that when the County changed the hours to include a
Saturday shift rotation once every three weeks so that restorative care was
available, it was doing so to anticipate patient care needs and meet
regulatory standards necessary to the expansion of its services as well as
seeking an additional source of revenue for the facility's continued
operation. This is synonymous with maintaining its "control of
governmental functions," namely, the responsible and reasonable business
operation of the nursing home. (See RSA 273-A:1, XI.)
The Hearing Officer finds that the actions of the County in
this matter fall within the "managerial policy" exclusion and that
any impact upon the Restorative Therapy Aides was not sufficient to create an
obligation to negotiate further with the Union. Therefore, it is determined
that the County did not violate RSA 273-A:5,I (e) by failing to negotiate in
good faith or (g) by failing to comply with this statute or any rules
promulgated thereby. Further, to the extent that the Union's pleadings can be
read to have claimed that the County improperly dealt directly with members of
the bargaining unit, the Hearing officer finds that the manner of
communication and substance of that communication to unit members relating to
the change in schedule did not constitute prohibited direct contact by the
County .
The Union also alleges that the County's change in the
workweek of Restorative Therapy Aides that required them to report to work to
a Saturday day shift invalidates a portion of the parties' CBA in violation of
RSA 273-A:5,I (i). There is insufficient evidence presented to establish which
provision of the parties' CBA was invalidated and in what manner it was
invalidate to permit a determination by the Hearing officer.
The complaint is, therefore, denied.
Having denied the Union's complaint and previously
explaining to the parties' the appeal rights of any aggrieved party, the
Hearing Officer observes that the County has represented that it is willing to
negotiate with the Union over the issues raised by its implementation of the
change in work days. The parties should weigh the costs of protracted
proceedings before this tribunal or, arguably, in arbitration and incorporate
their differences into their present negotiations for a successor agreement to
the current CBA, notwithstanding that these negotiations have commenced. The
policy mandate to the Public Labor Relations Board is to foster harmonious and
cooperative relations between public employers and their employees and the
interests of these two parties may best be served by that course of action.
Signed this 24th day of April, 2003
/s/ Donald E. Mitchell
Donald E. Mitchell, Esq.
Hearings Officer
Distribution:
Daniel A. Cocuzzo, Esquire
Jack McMath, Union Field Representative,
Marc Hathaway, Esquire, Sullivan County Attorney
Back
|
