Hollywood Presbyterian Medical Center

HOLLYWOOD MEDICAL CENTER - 307 Hollywood Presbyterian Medical Center and Hospi- tal and Service Employees Union , Local .399, Service Employees' International Union, AFL- CIO, CLC, Petitioner. Case 31-RC-5711 29 April 1985 DECISION AND ORDER DIRECTING HEARING BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS The National Labor Relations Board has consid- ered the objections to an election held 18 October 1984,' and the Regional 'Director's report recom- mending dispositions of them. The election was conducted in separate units of professional and nonprofessional employees pursuant to a Stipulated Election Agreement. The tally of-ballots in the nonprofessional unit A shows 418 for and 257 against Petitioner with 4 void ballots and 26 chal- lenged ballots, a . number insufficient to affect the results. The tally of ballots in the professional unit B shows 183 for and 210 against inclusion in..a single unit with nonprofessional employees with 2 void ballots and 21 challenged ballots, a number in- sufficient to affect the results. The tally-of ballots in the professional unit B further shows 214 for the Petitioner and 178 against, with 4 void ballots and 21 challenged ballots, a number insufficient to affect the results. The Employer filed timely objec- tions to the conduct of the election. . On 27 December 1984, the Regional Director served on the parties his "Report on Objections, Order Directing Hearing and Notice of Hearing," recommending that the Employer's Objections 1 through 4 be overruled; With respect to the Em- ployer's Objection 5 he recommended that _it be overruled to the extent that the election results stand, but that a hearing be held for the limited purpose of determining whether employees in five disputed job classifications, who had voted without challenge in the professional unit, are professional employees within the meaning of Section 9(b)(1) of the Act. If the hearing officer determined that the five disputed job classifications were composed of professional employees, he was to recommend to the Board that certifications of representative issue in units A and B as they appear in the parties' elec- tion stipulation agreement. If the hearing' officer determined that any or all disputed classifications were composed of nonprofessional employees, he was to recommend to the Board that the classifica- tions be removed from unit B and placed in unit A .and that the Board issue certifications of represent- ative in favor of the Petitioner in the clarified units. The Employer filed timely, exceptions to the Re- gional Director's report and the Petitioner filed an answering brief. The Board has reviewed the Regional Director's report in light-of the exceptions and briefs. For the reasons stated -below, the Board reverses the Re- gional Director's findings and recommendations with respect to the Employer's Objection 5; and re- mands, the case to him' for a hearing on the Em- ployer's Objection 2. 1. With respect to the Employer's Objection 5, the stipulated units between the parties were com- posed of the following employees: UNIT A: All full-time, regular part-time and per diem nonprofessional employees including, but not limited to, individuals employed in the job classifications listed on Appendix 2 at- tached. [Omitted from publication.] EXCLUDED: All professional . employees, casual employees, confidential employees, managerial employees, guards and supervisors as defined in the Act. UNIT B: All full-time, regular part-time and per diem professional employees, including but not limited to, individuals employed in the job classifications listed on Appendix 1 attached. [Omitted from publication.] - EXCLUDED: All nonprofessional employees, casual employees, confidential employees, managerial employees, guards and supervisors as defined in the Act. The Employer contends that stipulated unit B is an' inappropriate unit because -it contains five job classifications of nonprofessional employees (i.e., respiratory therapist, respiratory therapist techni- cian, registered respiratory therapist, student respi- ratory therapist, and medical photographer), con- trary to the mandatory provisions of Section 9(b)(1) of the Act which prohibit the inclusion' of professional employees in a unit of nonprofessional employees absent their vote in favor of such inclu- sion. i The Employer further contends that a' post- election unit clarification by . the Board by which any disputed nonprofessional employee in unit.'B would-be placed in unit A is an impermissible re- structuring of the stipulated units. The Employer argues, therefore, that the Regional Director's ap- proval of the' parties' election stipulation must be revoked because it does not conform to the facts of the case, conflicts with Board policy, and violates Section 9(b)(1) of the Act. - ' Sec 9(b) of the 'Act states that "the Board shall not (1) decide that any unit is appropriate • if such unit includes both professional em- ployees and employees who are not professional employees, unless a ma- jority of such professional employees vote for inclusion in such unit " 275 NLRB No. 47 308 DECISIONS OF NATIONAL-LABOR RELATIONS BOARD We agree with the Regional Director that. the parties' election stipulation appears on its face to be in accord with both established Board, policy and the Act and that. it -provides for the necessary pro- cedures -to, ensure that the statutory mandate of Section 9(b)(l).of the Act is obeyed. We, therefore, disagree with his conclusion to hold a hearing as to the professional status -of the five classifications now disputed by the Employer. In his discussion the Regional Director noted that the Employer, for no apparent reason, chose to raise the, issue regard- ing the disputed nonprofessional employees for the first time through _ its objections, having failed either to express its concerns to the Regional Di- rector before the election or to avail itself of the challenge "procedure at the election. Nevertheless, the Regional Director concluded that the best pro- cedure-was to hold a hearing to determine the pro- fessional status - of the five disputed' classifications and, thereafter, to clarify the stipulated units by re- moving from-1 professional unit B any employees found to be nonprofessionals and -placing them in. nonprofessional :unit A. It-is settled Board policy, to accept stipulations from the parties as- to composition of the unit, unless such stipulations are contrary, either to the statutory provisions of the . Act, or established Board policy. 2 1 i We find the parties"election stipulation in the in- stant case binding on the parties as, to the place- ment of the five 'disputed classifications. Thus, as found by the Regional Director, the stipulation on its face: is -neither contrary to Board policy nor vio- lative of :Section 9(b)(1) -of the Act.3 Pursuant to the statutory mandate of Section 9(b)(1) of the Act, the-'election agreement- safeguarded 'the statutory rights of professional employees by providing for a Sonotone election4 in which professional employees -voted on whether they desired to be-included in a unit of nonprofessional employees. • While the- Regional Director' relied on. Valley View Hospital, 252 NLRB 1146 • (1980), and the Board's .unpublished decision in Gelco Courier Serv- ices, Case 21-RD-1842 (Feb. .15, 1984), as support -for overturning the election stipulation, we find those'cases inapposite. In Valley View, ,the Regional Director recognized that the unit included regis- 2' SCM Corp, 270 NLRB No .119 (May 24, 1984), Tribune Co, 190 NLRB 398 (1971) a In reviewing the five classifications in dispute, we find nothing on their face to indicate that they are-nonprofessional Moreover, there was no evidence adduced during the investigation that would indicate that the employees in the five disputed job classifications were nonprofessional employees or performed duties different from those implied in their job classifications Prior Aviation Service. 220 NLRB 460 (1975), Penn Truck- Painting & Lettering Corp, 215 NLRB 843 (1974), Eck Miller Transporta- tion Corp, 211 NLRB 251 (1974) 4 Sonotone Corp, 90 NLRB 1236 (1950) - , tered nurses, who as professional employees. nor- mally would be entitled under Section 9(b)(1) of the Act to vote on a separate ballot as to their wish to be included in a- unit with nonprofessional em- ployees. Nevertheless, in view of the stipulation of the parties, the Regional Director found the unit to be appropriate for the purposes of collective bar- gaining. The Board disagreed. It determined that registered nurses had improperly been included-in a unit of nonprofessionals without their.consent, as the election stipulation, unsupported by any testi- mony, was, on its face, contrary to the statutory provisions of Section '9(b)(1)-of the Act. Gelco is also unavailing here, for in Gelco the Board did not deal with the question of whether the Regional Di- rector acted properly in sua sponte overturning the parties'- election stipulation. Rather, it only ad- dressed the issue of whether certain drivers are statutory guards within the meaning of Section 9(b)(1) of the Act. The instant case is most similar to Prior Aviation Service, supra at footnote 3, wherein the Board overruled objections alleging that the parties' elec- tion agreement had improperly included in the unit a relative of the employer in violation of Section 2(3) of the Act and a supervisor in violation- of Section 2(11). As in the instant case, neither party raised the issue of the inclusion of the alleged rela- tive and supervisor either at the preelection confer- ence or at the election by means of the challenged ballot procedure. The Board found that, under these circumstances,- the objections were impermis- sible postelection challenges. Here, as there, there are no circumstances which warrant our departure from the Board's practice to "honor concessions made in the interest of expeditious handling of rep- resentation cases, even though there may be some question' about including certain employees in the unit, ,or excluding them from it, were the matter litigated."5 To the contrary, a decision by the Board to reject the parties' election stipulation and to set the election aside here would conflict with .our policy of encouraging consent election agree- ments, and would, without the showing of a valid reason, allow the parties a mechanism for voiding an unwanted election result.6 Accordingly, the Employer's Objection 5 is overruled. 2. In Objection 2 the Employer alleges, in sub- stance, that one of the Petitioner's observers en- gaged -in extensive campaigning in the polling area during the balloting. According to the Employer, 5 Pyper Construction Co, 177 NLRB 707, 708 (1969), Stanley Aviation Corp, 112•NLRB 461 (1955) 6 NLRB v A. J. Tower Co, 329 U S 324 (1946) HOLLYWOOD MEDICAL CENTER 309 the observer in a consistently loud tone of voice re- peatedly engaged in personal conversations with voters, made comments such as "she's for us" in re- ferring to, voters, questioned many voters as to their identification, told voters that they could not wear antiunion buttons, directed voters as to which voting line they should stand in and, in at least one instance, yelled at a voter who was at a table the observer was not assigned to observe. The Em- ployer argues that the observer's behavior was par- .ticularly disruptive because it took place repeatedly while employees were within the voting area wait- ing to cast their ballots, and that its cumulative effect gave the impression that the observer was serving a special authoritative function at the elec- tion, thereby suggesting that the Petitioner and not the Board was conducting the election. The Regional Director found that there was in- sufficient evidence that the observer for the Peti- tioner engaged in - prolonged conversation with voters and that the questions or statements by the observer were for the most part related to her duties as an observer. He concluded that the ob- server's statement to one or two voters that they could not wear campaign buttons was quickly cor- rected by the Board agent and did not warrant set- ting the election aside. Accordingly, the Regional Director recommended that Employer's Objection 2 be overruled. Contrary to the Regional Director, we find that the evidence revealed during the investigation is sufficient to warrant a hearing on the Employer's Objection 2. Thus, the Employer has presented al- legations of behavior by the Petitioner's observer, which, if proven, may have had the potential for distracting voters and gaining an. unfair advantage for the Petitioner in violation of the Board's direc- tives in Milchem, Inc., 170 NLRB 362 (1968). Fur- thermore, the Employer's allegations show that the observer's behavior may have had the added impact of suggesting that it was the Petitioner, and not the Board conducting the election. Such behav- ior, if proven, might indeed have destroyed the lab- oratory conditions necessary to a free and fair elec- tion. In our view the evidence presented with respect to the Employer's Objection 2 raises substantial and material issues warranting a hearing on wheth- er the alleged conduct occurred and its possible impact on the election. Accordingly, we shall order a hearing on the Employer's Objection 21 ORDER It is ordered that a hearing be held before a, duly designated hearing officer for the purpose of re- ceiving evidence to-resolve the issues raised with respect to the Employer's Objection 2. IT IS FURTHER ORDERED that the hearing officer designated for the purpose of conducting the hear- ing shall prepare, issue, and serve on the parties a report containing resolutions of the credibility of witnesses, findings of fact, and recommendations to the Board as to the disposition of the objections: Within 10 days from the date of issuance of the report, either party may` file- with the Board in Washington, D.C., an original and seven copies of exceptions to the report. Immediately upon the filing. of exceptions, the party filing them. shall serve a copy on the other party, and shall file a copy with the Regional Director. If no exceptions are filed thereto,- the Board will adopt the recom- mendations of the hearing officer. - IT IS FURTHER ORDERED that the above -entitled matter is referred to the Regional Director for Region 31 for the purpose of arranging a' hearing and that the Regional Director is authorized to issue notice of the hearing. . MEMBER DENNIS, concurring in part and dissent- ing in part. I agree that the parties' stipulation on its face is not contrary to the Act or Board policy, and there- fore a hearing on Objection 5 is not necessary. I do not agree, however, that Objection 2 raises issues warranting a hearing, essentially for the reasons the Regional Director stated., ' .