Arthur C. Logan Memorial Hospital

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Arthur C. Logan Memorial Hospital, Employer-Peti- tioner' and District 1199, National Union of Hospital and Health Care Employees, RWDSU, AFL-CIO. Case 2-UC-109 August 30, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS, MURPHY, AND WALTHER Upon a petition duly filed under Section 9(b) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Ernest J. Collazo. Thereafter, pursuant to Section 102.67 of the Board's Rules and Regulations, Series 8, as amended, the Regional Director for Region 2 issued an order transferring this proceeding to the Board. Thereafter, briefs were filed by the Employer and the Union. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. The rulings are hereby affirmed. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act, and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The Union is a labor organization within the meaning of the Act and claims to represent certain employees of the Employer. 3. The Employer operates a nonprofit hospital in New York City. It is a member of the League of Voluntary Hospitals and Homes of New York.2 The League and the Union have been parties to collective agreements since 1964. On July 16, 1976, the parties executed an agreement which provided, inter alia, that the "agreement which expired June 30, 1976 ... shall be renewed and extended." The renewed contract was for a term effective July 1, 1976, to June 30, 1978, and encompassed a unit of about 512 employees. The recognition clause of that agreement provides in pertinent part: The Hospital recognizes the Union as the sole and exclusive collective bargaining representative of all the employees in the bargaining unit(s) set i Hereinafter called Employer. 2 Hereinafter called the League. forth in a stipulation. . . between the Union and each Hospital to be annexed hereto. The recognition clause further specifically excludes supervisory employees from the unit. The Employer and the Union never executed the stipulation referred to in the contract. However, the parties agree that all of the classifications disputed herein are encompassed by their current agreement. A rider attached to the Employer's petition herein, which was received without objection, describes the unit as including "[s]ervice and maintenance, guards, technical, clerical and licensed practical nurses," but excluding, inter alia, "supervisors, confidential, exec- utive and managerial employees." The Employer through its petition seeks to exclude four job classifications from the bargaining unit on the basis that they are supervisory positions. The Union contends that the petition should be dismissed because (1) it is inappropriate for the Board to clarify a contract unit midway through the term of the contract; (2) the petition was not timely filed; and (3) it would be disruptive of the collective-bargaining relationship voluntarily entered into between the parties. In our judgment, the unit clarification petition herein has not been timely filed. Although the contract unit specifically excludes supervisors, the parties are in agreement that the disputed classifica- tions herein are encompassed by the current collec- tive-bargaining agreement as well as by all predeces- sor agreements. The parties were fully aware at the time of the recent negotiations of the uncertainty surrounding the proper unit placement of the disputed classifications, and yet they nevertheless chose to ignore the problem and perpetuate in their current agreement the traditional unit description covering the disputed classifications. In our judg- ment, to permit the Employer to knowingly execute a contract and immediately thereafter petition the Board for clarification of that agreement to exclude covered classifications would tend to undermine the parties' collective-bargaining relationship.3 We find no basis in the record for the dissent's suggestion that, rather than risk a breakdown in negotiations, the parties were content to leave relief of these : Northwestr Publications, Inc., d/bla San Jose Mercury and San Jose Newa, 197 NLRB 213 (1972); Wallace-Murray Corporation, Schwitzer Division. 192 NLRB 1090 (1971). 231 NLRB No. 119 778 ARTHUR C. LOGAN MEMORIAL HOSPITAL troublesome questions to the Board's unit clarifica- tion procedures.4 Our colleague speaks of "the parties being faced with the alternatives of submitting the issue to arbitration, filing UC petitions with the Board, or resolving status issues through collective bargaining." He also deplores the fact that the Board, as he sees it, is now leaving the parties nothing but the strike route. The Union has, of course, already struck, for a short period between the unsuccessful contract negotiations during April, May, and June and the July 16 agreement settling the strike and extending the prior contract subject to change pursuant to binding arbitration by a Federal mediator. The only contract changes as a result of arbitration were economic. Concerning the UC approach, we note that four petitions with respect to contract-end were timely filed on March 30 and 31, and this particular hospital employer filed a UC concerning guards on March 22. To say that the Union's March 23 letter to the Hospital League shows the parties as content to leave resolution of the supervisory issues to Board clarification of unit is not unreasonable, but to interpret that letter as implying that such proceeding could be brought at any, time is unreasonable. The full text of the letter is: This will confirm our agreement as follows: The inclusion of the title "supervisor" in Stipula- tion 11 by any member of the League shall be without prejudice to the position of such institu- tion, the League itself or any other of its members that supervisors are not appropriately included within any bargaining unit represented by the Union. Further, the inclusion of such titles in Stipulation 11 shall not be utilized or referred to in any manner in any proceeding before the NLRB or any other agency or court where the status or unit placement of supervisors is in issue. It is also agreed that the foregoing is without prejudice to any position that the Union wishes to take with regard to these matters. Contrary to our dissenting colleague, the Board's processing of Beth lI.rael Medical Center, 229 NLRB 295 (1977), involving another member hospital covered by the contract expiring June 30, 1976, is not inconsistent with the dismissal here. The UC petition in that case was timely filed on March 30. 90 doa s prior to contract expirarion. (See Trinity Lutheran Hospital. 218 NLRB 199 (1975).) It is also clear that the parties agree that the Jul 16 contract e.xlension rovers existing units. It appears that this UC Petitioner. on March 22. timely filed another UC petition concerning guards, but waited until August 26 to file this UC petition concerning alleged supervisors. This we icw as "disruptive of a bargaining relationship voluntarily continued by the Employer when it executed the existing contract with the Union." as we said in WaIllace-Murrai Corporation. Our colleague would distinguish the latter case because the unit in that single-employer contract was clearly defined in the contract. However, the parties here agree that the alleged Although the Union contends that the appropriate time for such proceeding is the open period before contract-end-as is standard for representation petitions-it has not contested the timeliness of two additional UC petitions filed before contract exten- sion, on May 9 and June 30. Also the Union has not urged that a September 8 UC petition by another League hospital is untimely, but in that case a specific agreement to refer the supervisory issue to the Board was made contemporaneously with strike settlement. While the Board does not limit the filing of UC petitions to the so-called open period, it has been concerned with the problem of having such a petition disrupt a contract recently entered into. 5 Filing a unit clarification petition is hardly a difficult or time- consuming task, and there seems no reason for this Employer to have postponed its petition on the supervisory issue until after the contract had been extended with units intact. To permit this tactic so soon after contract extension is necessarily destruc- tive of the bargaining relationship with respect to this particular unit. Accordingly, without prejudice to the filing of a clarification petition at an appropriate time, we hereby dismiss the Employer's petition herein. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Employer's petition be, and it hereby is, dismissed. MEMBER WALTHER, dissenting: I disagree with my colleagues' decision to dismiss the Employer's petition for clarification. In my view it was not untimely filed, nor will its processing at this time in the circumstances of this case tend to disrupt the parties' collective-bargaining relationship. As noted by the majority, the parties executed an agreements effective July i, 1976, which specifically excludes supervisors. While the agreement does not supervisors involved are covered by the extended contract. In view of that testimonial concession by the UC Petitioner and the Union. we deem the situation as tantamount to a clearly defined contractual unit. s See Northesrt Publications, Inc., 200 NLRB 105 (1972). dismissing a UC petition filed at time of midcontract modification, where the description of the bargaining unit in the "recent supplemental agreement" was not changed and the Board noted that jobs alleged to be supervisor) "have existed for many years and their status has not changed since the execution of the current contract." Cf. Plough, Inc., 203 NLRB 818 (1973), where it appears that the parties had agreed at the time of contract execution to a resolution by UC petition. 6 The contract is between the League of Voluntary Homes and Hospitals of New York and the Union. The Employer is a League member. 779 DECISIONS OF NATIONAL LABOR RELATIONS BOARD specify the precise employee job classifications which are included,7 the parties agreed on the record that the job classifications named in the UC petition are in fact covered by the contract. In any event, there is no dispute that the current agreement excludes supervisors; the only issue here is whether or not the persons who occupy the job classifications named in the Employer's petition are supervisors, as distin- guished from employees. If they are supervisors, and in my view the record shows them to be just that, they must be excluded. The Board has held that unit clarification is appropriate, even in midterm, if a contract covers individuals whose inclusion is contrary to the statute.8 Furthermore, the Board has entertained midterm unit clarification petitions such as the instant one which seek to clarify the supervisory status of employee classifications included in a unit by agreement of the parties.9 Accordingly, the Board's unit clarification procedure is always avail- able and appropriate to resolve disputes over an agreement to include individuals who are not employees within the meaning of the Act. Unlike petitions for resolving questions concerning representation, the Board has no established rules which spell out the precise time that a petition for clarification must be filed, or indicate that it should be filed at an appropriate time. The appropriate time for filing a UC petition is thus at any time the unit needs to be clarified.10 Indeed, the Board can, without a petition and on its own motion, clarify a unit during the term of a contract as part of its overall authority to eliminate industrial strife and to promote collective bargaining." My colleagues flatly state that the UC petition in this case tends to undermine bargaining, but offer no rationale or factual basis for their conclusion. On the contrary, by dismissing the petition in this proceed- ing, the majority is ignoring the realities of collective bargaining. It is important to note that the employees of the Employer herein, as well as those of other League members, were not covered by Federal law until the National Labor Relations Act was amended in 7 As noted by the majority, the parties failed to execute a stipulation which would have enumerated the covered classifications. The record also shows that the parties apparently did not execute a similar stipulation in their 1972-74 agreement. Peerless Publications, Inc., 190 NLRB 658 (1971). The Western Colorado Power Company, 190 NLRB 564 (1971). Accord: Union Electric Company, 217 NLRB 666, 667, fn. 5 (1975). The cases cited by the majority do not support their position. Thus, in Northwest Publications cited by the majority the Board, citing The Western Colorado Power Company, correctly noted that "where the bargaining unit, as stipulated by the parties, excluded supervisors . . . the Board, during the term of the contract, has clarified a bargaining unit and removed improperly included supervisors." In Wallace-Murray Corporation, also cited by the majority, the Board concluded that it would not serve the purposes of the Act to use the UC procedure where the unit was clearly defined in the contract and there August 1974. At the time of the 1974 amendments, the League and the Union were parties to contracts for bargaining units which included individuals who may not have been entitled to protection under our Act. It is evident from this record that the parties were undecided about the status of which classifica- tions were included in the unit by the parties' failure to execute a stipulation to that effect in their 1974 and 1976 agreements. They were faced with the alternatives of submitting the issue to arbitration, filing UC petitions with the Board, or resolving status issues through collective bargaining. The parties chose to follow the unit clarification route. It is evident from the record that the Union, at least tacitly, approved this procedure. For example, the Union has requested that we take official notice of five unit clarification petitions filed by members of the League which raise the same issues as those raised by the instant petition.1 In addition, it is evident that the Union recognized the possibility that resolution of the supervisory status of certain classifications might be resolved by the Board. In a letter to the League, the Union acknowledged that inclusion of the title "supervisory" in the stipulation attached to the contract was without prejudice to the right of the League to assert that supervisors are not appropriately included in the bargaining unit. Fur- thermore, in this letter, the Union acknowledged that inclusion of the supervisory title in the stipulation "will not be utilized or referred to in any manner in any proceeding before the National Labor Relations Board . . . where the status or unit placement of supervisors is in issue." It is evident from the record that the supervisory status of the classifications in question was an explosive issue which carried with it the potential for completely disrupting the bargaining process. Rather than risk a breakdown in negotiations, the parties were content to leave resolution of this troublesome question to the Board's unit clarification procedures. By denying the parties access to our clarification procedures, the majority is, as a practical matter, forcing the parties in the future to settle such issues (normally determined by the Board) by the strike was no dispute between the parties as to the status of individuals involved or as to their inclusion in the contract unit. In this case the unit is not clearly defined in the contract and we do have a dispute as to supervisory status. 10 See Pacific Coast Shipbuilders Association, 157 NLRB 384, 386 (1966), where the Board indicated that "there is no limitation upon the right of a party to request clarification" of a unit. 11 See Coca-Cola Bottling Company of New York, Inc., 133 NLRB 762 (1961). Briggs Manufacturing Company, 101 NLRB 74, 76, fn. 4 (1952). See also Westinghouse Air Brake Company, Union Switch & Signal Division, 123 NLRB 859, 860 (1959), where the Board proceeded to clarify a unit I month after the collective-bargaining agreement was executed. 12 See Beth Israel Medical Center, supra; Long Island Jewish Hospital, Case 29-UC-95; Maimonides Hospital, Case 29-UC-91; Jewish Hospital of Brooklyn, Case 29-UC-94; and the instant proceeding, Arthur C. Logan Memorial Hospital, Case 2-UC-109, all of which were filed in March 1976. 780 ARTHUR C. LOGAN MEMORIAL HOSPITAL route. This I consider to be much more disruptive of the parties' collective-bargaining relationship than having the Board fulfill its obligation now. I find no sound basis for my colleagues not processing the petition in this proceeding, while processing a similar UC petition in Beth Israel. The cases are, in all relevant aspects, factually identical. My colleagues have thus taken inconsistent positions on similar facts. Accordingly, for the above reasons I would not dismiss the UC petition. Instead I would process it and clarify the unit and, in accordance with the record evidence, I would find as noted, supra, that all of the individuals in dispute are supervisors within the meaning of Section 2(11) of the Act. 781