Arthur C. Logan Memorial Hospital

National Labor Relations Board - Board Decisions

Aug 30, 1977

231 N.L.R.B. 778 (N.L.R.B. 1977)

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.
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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