

           [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March 30, 1993        [NOT FOR PUBLICATION]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  &amp; 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). 

                             -3-

     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.  

                             -4-

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

                             -5-

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.                                                                      

                             -6-

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.  

                             -7-

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.

                             -8-

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

                             -9-

sincerely attempted  to reach an agreement  with the Union."5

As  was noted in  NLRB v. J.P.  Stevens &amp; 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.

                             -10-

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.                                                                         

                             -11-

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

                             -12-

     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

                             -13-

          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:

                             -14-

               (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;

                             -15-

               (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

                             -16-

               (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.

                             -17-

                              By the Court:

                                     Clerk.

                             -18-
