Sunrise, A Community For The Retarded, Inc.

252 SUNRISE, INC. Sunrise, A Community for the Retarded,, ,Inc. and Teamsters Local Union No. 444, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 12-RC-6633 24 November 1986 ORDER REMANDING BY CHAIRMAN DOTSON AND MEMBERS BABSON AND STEPHENS On 27 June 1986 Hearing Officer Marvin P. Jackson issued his report and recommendations on determinative challenges in an election held 11 July 1985,1 and on a motion to intervene filed by ARA Devcon, Inc. (ARA). The hearing officer found that ARA is the legal successor to Sunrise (the Employer), and therefore granted the motion to in- tervene. The hearing officer further found it appro- priate for the Board to assert jurisdiction over ARA's operations pursuant to National Transporta- tion Service, 240 NLRB 565 (1979). He also recom- mended sustaining the challenged ballots and certi- fying the Petitioner as the exclusive collective-bar- gaining representative of the employees in the voting unit,2 except as modified to include the maintenance employee and to exclude the regis- tered nurses. On 16 July 1986 ARA filed timely ex- ceptions to the hearing officer's report.3 The hearing officer found the registered nurses to be professional employees. He further found the stipulated unit to be contrary to the Act because it included both professional employees (registered nurses) and nonprofessional employees, without af- fording the professionals an opportunity to vote whether they wished to be included in such a unit.4 He further noted, however, that even if the ' The election was conducted pursuant to a Stipulated Election Agree- ment The tally of ballots shows 19 for and 16 against the Petitioner, with 4 challenged ballots, a sufficient number to affect the results of the elec- tion. 2 The voting unit was composed of all residential training instructors (RTI), RTI shift supervisors, food service employees, licensed practical nurses, and registered nurses. Excluded were all professional employees, office clerical employees, guards, and supervisors as defined in the Act. 2 No exceptions were filed regarding the hearing officer's recommen- dations concerning the challenged ballots and inclusion of the mainte- nance employee. 4 Sec. 9(b)(1) of the Act provides that the Board shall not "decide that any unit is appropriate . . if such unit includes both professional em- ballots of the registered nurses were voided, the Petitioner still received a majority of the valid votes cast. Thus, the hearing officer recommended that the Petitioner be certified as the exclusive bar- gaining representative of the unit as modified to ex- clude the registered nurses. ARA excepts, inter alia, to the hearing officer's proposed modification of the bargaining unit on the grounds that the Board has no authority to rewrite the job classifications included and excluded in, a stipulated unit. ARA further contends that the pro- posed modification ignores the votes of the regis- tered nurses, thus giving no consideration to their right to representation. ARA therefore argues that the election should be set aside and the petition dis- missed. We agree with the hearing officer that the stipu- lated unit on its face violates Section 9(b)(1) of the Act, but we disagree that the defect can be reme- died simply by modifying the unit. Rather, because the election was held in an inappropriate unit, we find that the election must be set aside. See Valley View Hospital, 252 NLRB 1146 (1980). According- ly, we conclude that it will best effectuate the pur- poses of the Act to set aside the election, vacate the stipulation, and remand this proceeding to the Regional Director to resume processing of the peti- tion by either assisting the parties to reach agree- ment on a new stipulation or, in the absence of a new stipulation, conducting a hearing on the unit issue.5 ORDER It is ordered that the election held on 11 July 1986 is set aside, and the Stipulated Election Agreement dated 2 July 1985 is vacated. IT IS FURTHER ORDERED that this proceeding is remanded to the Regional Director for Region 12 for further appropriate action. ployees and employees who are not professional employees unless a ma- jority of such professional employees vote for inclusion in such unit." 5 ARA also excepts to the hearing officer's sole reliance on National Transportation Service, above, in determining that the Board has jurisdic- tion over ARA, and it contends that a different result would be reached under the Board's recent decision in Res-Care, 280 NLRB 670 (1986). In the absence of a new stipulation, the Regional Director shall also consid- er the jurisdictional issue consistent with Res-Care and its companion case, Long Stretch Youth Home, 280 NLRB 678 (1986), including reopen- ing the record, if necessary, and issuing a supplemental decision 282 NLRB No. 35