Riveredge Hospital

196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Affiliated Midwest Hospital Incorporated, d/b/a Ri- veredge Hospital and Patricia Ann Buffington, Eloise Gohne, and William Koulias, Petitioners and Hospital Employees Labor Program Local 73 (Help!) Affiliated Midwest Hospital Incorporated, d/b/a Ri- veredge Hospital, Employer-Petitioner and Hos- pital Employees Labor Program, Local 73 (Help!). Cases 13-RD-1250, 13-RD-1251, 13- RD-1252, 13-RM-1281, 13-RM-1282, and 13-RM-1283 August 14, 1980 DECISION AND DIRECTION BY CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDALE 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 certain objections to decertification elections held on October 17, 1979,1 and the Regional Director's report recommending disposition of the same. The Board reviewed the record in light of the exceptions and briefs, and hereby adopts the Regional Director's findings and recommendations only to the extent consistent herewith. Petitions were filed in Cases 13-RD-1250 and 13-RM-1383 2 (a service and maintenance unit), 13-RD-1251 and 13-RM-1282 (a registered nurses unit), and 13-RD-1252 and 13-RM-1281 (a techni- cal unit) in July 1979. 3 In August, the parties en- tered into Stipulations for Certification Upon Con- sent Election in the above cases, one for each unit. The stipulations, while containing the other provi- sions typical in such agreements, did not contain formal descriptions of the bargaining units. Instead, each of the three stipulations, under the section en- titled "12. The Appropriate Collective-Bargaining Unit," contained the following statement: "The parties agree that the attachments are hereby incor- porated and a part of this agreement." These re- spective attachments are lists containing the names of eligible employees and their specific job classifi- ' The elections were conducted pursuant to three Stipulations for Cer- tification Upon Consent Election The tally in Cases 13-RD-1250 and 13-RM 1283 was 25 for the Unionl, and 23 against the Union with I chill- lenged ballot. an insufficient number to affect the results Ihe tally in Cases 13-RD 1251 and 13 RM 1282 was 9 for and II against the Union In Cases 13-RD 1252 and 13 RM 1281 the tally was 4 fr ad 38 against the Union 2 The Employer filed the RM peiliols after the RD petitions had been filed by employees and the questioln of the Unioni's majority status was already in issue. Thereafter, the RD) and RM ca;ses were conlsolidated Accordingly, the elections herein are treated as decertification elec io s :' All dates hereafter refer to 1979. 251 NLRB No. 29 cations in each of the units involved.4 The parties stipulated that these lists "expressly resolve any and all issues of eligibility" and constituted a "final and binding list of employees eligible to partici- pate" in each election. The Regional Director ap- proved these consent election agreements and, thereafter, notices of election, containing unit de- scriptions basically in conformity with the units as set forth in the Board's original certification, s were distributed and posted. On October 4, the Employ- er notified the Regional Office that the unit de- scriptions in the notices of elections did not con- form to the job classifications agreed to by the par- ties. No changes were made in the notices and the decertification elections were held on October 17. The Employer's Ojection 2 alleges that the Re- gional Office improperly influenced the results of the election in Cases 13-RD-1250 and 13-RM- 1283, and cases 13-RD-1251 and 13-RM-1282, re- spectively, by serving notices of election which contained unit descriptions materially different from the units stipulated to in the election agree- ments, thereby causing voter confusion and con- tributing to a low voter turnout. 6 The Regional Director concluded that this ob- jection, although limited to the two elections won by the Union, raised a serious question as to the manner in which all three decertification elections were conducted. Consequently, his investigation extended to the circumstances surrounding the de- certification election in Cases 13-RD-1252 and 13- RM-1283 as well as the elections designated by the Employer in the objection in question. The Regional Director noted that Section 11084.3 of the National Labor Relations Board Casehandling Manual (Representation Proceeding) clearly states that the determination of a bargaining unit disagreement, in a consent agreement election, is not to be left to a regional director; that a con- 4 Such lits are coimmtlily referred to by the iloard as Norriv-lhermu- dor lists after the case of that ilame (119 NlRB 1301 (l1958)) Hereinafter we shall refer to the lists ilcorporated into the stipulations in these cases as the Norri- thermudor lists ' (Ol Julie 14, 1978, the Unioln was certified as tile collective-bargain- rig representative in each of the ilree units pursualit tI the results iof electionls in three earlier cases ` The Employer does nolt conltend in this or any other of the objec- tions it filed to the elections conlducted i the service and maintenance and technical ullits (it filed no objections to he election in the registered nurse unit) that the parties had nlot agreed to the units or their composi- tion. (ther than Objecti on 2, the EmIployer's objections are based on al- leged Boiard ageit nrll soIIldtICt il riot perniltinig all employee wvhose name was lot iln ally of the ;Norri-lherniador lists to svote a challenlged hallot, and alleged misrepreserittiolns by the Unlion (the lntlerenolr ill these cases) It should b rioted tllhat the Uliot l filed obhjectiluis Ililitd itl the elcc- lioll ill te rcgistered nurse Illlit based oun alleged threats of reprisal anlld the ploihise and granlt tlf behctis h the Ie plIlcr Ite Unltiorl does nrot contend i its objectiols that the prties ~weret il odds a, io tic unit in- N oled , None I eliioner filed )hJectirlilr Itel electimt RIVEREDGE HOSPITAL 197 sent agreement should set forth the unit in full; and that approval of the agreement should normally be withheld where the inclusion or exclusion of cer- tain categories of employees is left to the challenge procedure. He also noted that Section 11086.3 of the same manual and Section 102.62(a) of the Board's Rules and Regulations also require a de- scription of the appropriate unit in the election agreement, and that Section 9(a) of the Act speaks in terms of "a unit appropriate for collective bar- gaining." He concluded, therefore, that an election agreement must contain a clear and complete unit description agreed upon by the parties, before it may be approved by the Regional Director. He found that, since descriptions of the appropriate units were omitted from the election agreements in the instant cases and that the unit descriptions on the notices of election varied from the job classifi- cations on the Norris-Thermador lists, the parties had failed to reach a meeting of minds as to the de- scription of the appropriate units. The Regional Di- rector further found that the Norris-Thermador lists were inadequate substitutes for an agreed-upon de- scription of the appropriate units because they are concerned only with the issue of voter eligibility and do not define the appropriate units. According- ly, the Regional Director recommends that the ap- proval of the stipulations in the instant cases be re- voked, that the elections be set aside, and that the cases be remanded for further appropriate proceed- ings.7 We disagree. It is well established that the only appropriate unit in a decertification election is the existing or recognized bargaining unit.8 The election must be held in that unit, and the Board will not give effect to any agreement for an election in a different unit.9 Here, the collective-bargaining agreement between the Employer and the Union, effective from June 14, 1978, to November 14, 1979, sets forth the three recognized bargaining units,10 and thus, the parties had no choice but to agree to elec- tions in those units. Further, as the following shows, the parties' actions from the filing of the re- spective petitions up to the elections indicate that they not only were aware that the elections had to I Because of his recommendations in this regard, the Regional Director found it unnecessary to make recommendations with respect to the Em- ployer's and the Union's objections described in fn. 6, supra. The Em- ployer and the Union have excepted to his failure to consider and dispose of these objections. In light of our Decision herein, we find merit to those exceptions and shall, therefore, remand this proceeding to the Re- gional Director for an investigation (if not already conducted) and deter- mination of those objections and the preparation of a supplemental report thereon. ' Booth Broadcasting Company, 134 NLRB 817 (1961); and Newhouse Broadcasting Corporation d/a/b WAPI-TV-AM.FM, 198 NLRB 343 (1972) 9 Brom Machine and Foundry Co., 227 NLRB 690 (1977) and Fast Food Merchandisers, Inc., 242 NLRB 8 (1979). i' A copy of the contract has been made a part of the record herein. be conducted in the recognized bargaining units but also that they were in agreement in entering into the election agreements that the elections would be held in those units. Consequently, the ab- sence of formal unit descriptions from the stipula- tions did not raise a serious question as to the iden- tity and scope of the three units agreed upon. In this regard, as noted above, none of the objections filed by the Employer and the Union alleges or claims that there was any disagreement over the units or any question concerning the composition of those units. Thus, it is clear that the Regional Director was neither being asked to resolve a bar- gaining unit dispute, nor was he faced with the ne- cessity of doing so. The petitions filed by the respective parties con- tain unit description basically in conformity with the existing contractual units. For example, the units described in the Employer's petitions in Cases 13-RM-1282 and 13-RM-1283 are the same as the corresponding recognized units set forth in the contract, and the Petitioner's petition in Case 13- RD-1251, the registered nurse unit, is the same except for the addition of one nurse classification which is not mentioned in the contractual unit. We deem this variance immaterial, however, as it is clear that such unit is restricted to registered nurses regardless of any other designation they might hold. Similarly, although there are some variances between the petitioned-for units in Case 13-RM- 1281, 13-RD-1250, and 13-RD-1252 and their contractual counterparts, the differences appear to be minor or relatively insubstantial insofar as they relate to the issue before us. Consequently, we con- clude that at the very outset of this proceeding the parties evinced an intent to go to elections in the recognized bargaining units. In any event, in consenting to the elections, the parties demonstrated conclusively that they were in agreement as to the units and the composition thereof when they incorporated the Norris-Ther- mador lists directly into the election agreements under the section entitled "12. The Appropriate Collective-Bargaining Unit." In doing so, they pre- faced the incorporation with "the parties hereby agree ... ." By such language, they noted the fact I We basically have no quarrel with the Regional Director's observa- tion that consent election agreements should set forth the unit and should not be approved if they do not do so. But where, as here, the agreements have been approved and elections conducted we will look to the circum- stances to see if the intent or agreement of the parties as to the unit's composition can be ascertained; and only if after such consideration and the issue still is in doubt, will we declare the agreement defective and the election a nullity. In this connection, some of the circumstances which we believe might have a bearing on our determination would include the type of petition and the nature of the election sought, whether a bargain- ing relationship in an established unit exists, and what the relationship of the parties to the election is to each other and any existing unit RIVEREDGE HOSPITAL '97 198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of their being in agreement. By incorporating the lists in the specific place reserved for designating units in the stipulations, the parties indicated that the Norris-Thermador lists constituted their agreed- upon units, and by virtue of the lists' inclusion of the eligible employees' job classifications, described the composition of the units as well. Accordingly, we find that, as used by the parties in the instant matter, the Norris-Thermador lists, in addition to delineating the identity of the employees eligible to vote, reflect the parties' unit agreements while de- fining what those units were.x2 There remains for determination, however, whether the units established by the Norris-Therma- dor lists are coextensive with the bargaining units recognized by the parties, as reflected in the collec- tive-bargaining agreement. A comparison of the former units with their contractual counterparts re- veals a striking similarity and hence a direct corre- lation between them. Indeed, the job classifications in the Norris-Thermador list for the registered nurse unit are identical with those in the contract, and the corresponding service and maintenance units contain the same classifications-except that the Norris-Thermador lists adds one, stationary engi- neer, which is not mentioned in the contract. How- ever, that particular classification relates to but one employee and is in any event encompassed by the general appellation of "service and maintenance" employees. As for the technical unit, the Norris- Thermador list contains 8 of the 12 specified classi- fications. The discrepancy created by the omission of four classifications from that list, while on its face substantial, in reality turns out to be insubstan- tial as the apparent reason for the omission is that there were no employees employed in the omitted classifications. Consequently, the recognized tech- nical unit as it in fact was composed of employees at the time of entry into the election agreements is mirrored in the Norris-Thermador lists; therefore, 32 This finding is also borne out by the Employer's complaining to the Regional Director, when the election notices were received, that the units described in the notices did not comport with the job classifications in the Norris-Thermador lists. This complaint clearly manifested the exist- ence of the parties' agreement with respect to the units involved and their scope. Certainly, it should have dispelled the notion apparently en- tertained by the Regional Director, as reflected by the unit descriptions in the notices, that the parties had consented to elections in the certified units. In this connection, it should be noted that the recognized contract units differ in varying degree from the certified units, although the con- tract states that the former units conform to the latter. On remand, the Regional Director should determine whether these differences could have had an effect on the elections. despite the omission from those lists of classifica- tions set forth in the contractual unit, we conclude that the technical unit agreed to by the parties par- alleled the unit as it actually existed.13 Accordingly, in view of the foregoing, we find that the parties, by virtue of their unit agreements as represented by the Norris-Thermador lists, had consented to hold elections in the three recognized bargaining units.' 4 We shall, therefore, remand this proceeding to the Regional Director for disposition of the Union's and the Employer's objections, in- cluding the latter's Objection 2 alleging employee confusion due to the discrepancy between the units in the notices of election and the Norris-Thermador lists, and for such further investigation and deter- mination as is consistent with our decision herein. DIRECTION It is hereby directed that this proceeding be, and it hereby is, remanded to the Regional Director for Region 13 for further investigation and determina- tion in accordance with the Decision above. IT IS FURTHER DIRECTED that the Regional Di- rector shall issue a supplemental report on objec- tions containing his findings and recommendations to the Board as to the disposition of the said issues. Such report shall be served on the parties to this proceeding, and the parties may file exceptions thereto pursuant to Section 102.69 of the Board's Rules and Regulations, Series 8, as amended. 'a In order to insure the correctness of this conclusion, however, the Regional Director shall, upon remand, investigate and determine whether the four omitted classifications from the Norris-Thermador list for the technical unit is in fact attributable to those classifications being unfilled. He shall also determine whether this omission could have had any effect on the employees exercising their free choice in the applicable election. including whether any of them may have been disenfranchised as a con- sequence. "4 We note that the Employer in its exceptions states that it agrees with the Regional Director insofar as he concluded there was no appar- ent meeting of the minds in Cases 13-RD-1250 and 13-RM-1283 (the service and maintenance unit), and Cases 13-RD-1252 and 13-RM-1281 (the technical unit). The Employer excepts, however, to the Regional Di- rector's same conclusion with respect to the election in Cases 13-RD- 1251 and 13-RM-1282 (the registered nurse unit). For reasons already ex- plicated we find no merit to the Employer's new-found position. It is also inconsistent with the Employer's urging us to reverse the Regional Di- rector in the nursing unit election; in any event. the Employer's argu- ment, also advanced in its exceptions, that new elections in the two elec- tions it is contesting should be held in units consisting of the Norris-Ther- mador job classifications belies its currectly professed agreement with the Regional Director. By this argument the Employer in essence is arguing that second elections are warranted in the same units in which the origi- nal elections were conducted. A more revealing, albeit tacit, admission that there was unit agreement between the parties cannot be imagined