Illinois Valley Community Hospital

410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Illinois Valley Community Hospital and Hospital Workers Joint Council, AFL-CIO (American Federation of Teachers; Firemen and Oilers Local No. 8; and the Hotel and Restaurant Em- ployees, Local 327), Petitioner. Cases 33-RC- 2459 and 33-RC-2460 May 8, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO Pursuant to authority granted it by the National Labor Relations Board under Section 3(b) of the National Labor Relations Act, as amended, a three- member panel has considered determinative chal- lenges in, and objections to, elections held on August 17, 1979,1 and the Regional Director's report recommending disposition of same. The Board has reviewed the record in light of the ex- ceptions and briefs, and hereby adopts the Regional Director's findings and recommendations 2 as modi. fied herein. Employer has excepted to the Regional Direc- tor's finding that: . . . the Petitioner and the Employer experi- enced no real meeting of the minds with re- spect to those employees who experienced a reclassification between the May 16 [1979] agreement and the payroll eligibility date or with respect to those employees not on the active payroll (i.e., those on approved leave of absence). It is Employer's position that there was a meet- ing of the minds with respect to the employees in question. Employer contends that it was agreed that the employees in question would not be eligi- ble to vote. Employer further contends that the May 16 agreement is final and binding under our Norris-Thermador policy 3 and, therefore, that the Regional Director erred in recommending the opening and counting of ballots cast by persons whose names did not appear in the May 16 agree- ment. The Petitioner asserts that it was agreed that the employees in question would be eligible to vote if lThe elections were conducted pursuant to Stipulations for Certifica- tion Upon Consent Election In Case 33-RC-2459, the tally was 42 for, and 47 against, the Petitioner; there were 10 challenged ballots. In Case 33-RC-2460, the tally was 37 for, and 36 against, the Petitioner; there were 4 challenged ballots. 2 Member Penello agrees with the Regional Director that the misrep- resentations alleged in Employer's Objection I and Petitioner's Objection 3 do not warrant setting aside the election, but so finds for the reasons set forth in Shopping Karr Food Market. Inc., 228 NLRB 1311 (1977), the principles of which he still adheres to. See his dissenting opinion in Gen- eral Knit of California, Inc., 239 NLRB 619 (1978) 3 Norris-Thermador Corporation. 119 NLRB 1301 (1958). 249 NLRB No. 58 they were working in bargaining unit positions on both the payroll eligibility date and the date of the election. Thus, the Petitioner has not excepted to the Regional Director's investigation and recom- mendations with respect to the eligibility of the employees in question. Although the record does not appear to support the Regional Director's finding that the parties reached "no real meeting of the minds" with re- spect to the employees in question, we do not find it necessary to determine what the true agreement was. The Board will give effect to a written voter eli- gibility agreement under its Norris-Thermador policy only to the extent that such agreement is not contrary to the Act or established Board policy.4 Assuming arguendo, without deciding, that Em- ployer's contention above accurately represents the agreement reached by the parties on May 16, and that the May 16 agreement otherwise satisfies the requirements of Norris-Thermador, supra, we never- theless conclude that we are not bound by the agreement to the extent it purports to disenfran- chise the employees in question because such an agreement is contrary to the Act and established Board policy. It is axiomatic that established Board policy is that subject to certain administrative restrictions not here relevant, all employees in a particular bar- gaining unit shall be given an opportunity to vote in an election held for the purpose of selecting a collective-bargaining representative for that unit. Under our consent-election procedure, the parties to an election are given a certain amount of free- dom in determining the composition of the bargain- ing unit and, under Norris-Thermador, supra, the parties are given a certain amount of freedom to determi,e who is, and who is not, in the bargaining unit; however, the parties are not free to agree that certain ci? es of employees, although admittedly in the barg ning unit, may not vote. Similarly, we conclude that it is contrary to the Act and estab- lished Board policy to agree that a group of em- ployees, as a class, will not be eligible to vote when some of those employees are prima facie members of the bargaining unit in question. This is the situation here. It is apparent, therefore, that, no matter what agreement was reached by the parties on May 16, the resolution of the challenges will be the same. If, as Employer contends, the parties agreed to dis- enfranchise the employees in question, such agree- ment is contrary to the Act and established Board 4 Ibid. 5 Cf. Westlake Plastics Company, 119 NLRB 1434 (1958) (agreement to exclude probationary employees contrary to established Board policy). ILLINOIS VALLEY COMMUNITY HOSPITAL 411 policy and will be given no effect here. If, as the Petitioner asserts, the parties agreed that the em- ployees in question would be eligible if they were working in a bargaining unit position on both the payroll eligibility date and the date of the election, the Regional Director was correct in determining the eligibility of the employees in question. In either event, the Regional Director's investigation was proper and we adopt his conclusions and rec- ommendations. 6 ORDER It is hereby ordered that the Regional Director for Region 33 shall, pursuant to the Board's Rules and Regulations, Series 8, as amended, within 10 days from the date of this Order, open and count the ballots of Virginia Kudla, Jenece Pinccinelli, Lua Lusk, Richard Maddox, Lucy Keutzer, Rose- mary Brennan, Elaine Stewart, Charlotte Moriar- ity, and Betty Roegner, and thereafter prepare and serve on the parties in Case 33-RC-2459 a revised tally of ballots and, thereafter, if the ballot of Flor- ence Smorkel is insufficient to affect the outcome of the election, issue the appropriate certification. I Member Penello agrees with the above analysis concerning agree- ments which allegedly disenfranchise entire classes of bargaining unit members. However, insofar as the parties' agreement concerns the eligi- bility of individual employees, Member Penello would accord finality to it "in order to encourage expeditious resolution of questions concerning representation." Laymon Candy Company, 199 NLRB 547, 548 (1972) (dissenting opinion). In the instant case, the parties included Shirley Ben- assi and Monica Peters on the list of eligible voters, but they were subse- quently challenged by the Petioner as supervisors. The majority adopts the Regional Dircctor's recommendation that a hearing be held to resolve the issues raised by the challenges to the ballots of these two individuals Contrary to his colleagues, Member Penello would, in accord with the dissent in Laymon Candy, give effect to the parties' agreement that Ben- assi and Peters are eligible voters. IT IS FURTHER ORDERED that a hearing be held to resolve the issues raised by the challenge to the ballot of Florence Smorkel if her ballot affects the results of the election in Case 33-RC-2459 after the ballots of Kudla, Pinccinelli, Lusk, Maddox, Keutzer, Brennan, Stewart, Moriarity, and Roegner are counted. IT IS FURTHER ORDERED that a hearing be held to resolve the issues raised by the challenges to the ballots of Shirley Benassi, Sharon Partel, and Monica Peters in Case 33-RC-2460, and that the ballot of Lori Biagloni be opened and counted at a time determined to be appropriate by the Regional Director for Region 33 after it is determined whether Benassi, Partel, and Peters are eligible to vote. IT IS FURTHER ORDERED that the Hearing Offi- cer designated for the purpose of conducting such hearing shall prepare and cause to be served on the parties a report containing resolutions of the credi- bility of witnesses, findings of fact, and recommen- dations to the Board as to the disposition of said challenges. Within 10 days of the issuance of such report, either party may file with the Board in Washington, D.C., eight copies of exceptions. The party filing the same shall serve a copy on the Re- gional Director. If no exceptions are filed thereto, the Board will adopt the recommendations of the Hearing Officer. IT IS FURTHER ORDERED that the above-entitled matters be, and they hereby are, referred to the Re- gional Director for Region 33 for the purpose of conducting such a hearing, and the Regional Di- rector be, and he hereby is, authorized to issue notice thereof.