Crothall Hospital Services

National Labor Relations Board - Board Decisions

Jun 27, 1984

270 N.L.R.B. 1420 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Crothall Hospital Services, Inc. and James E. Mock,
Petitioner and District 1199C, affiliated with
National Union of Hospital and Health Care
Employees, Division of RWDSU/AFL-CIO.
Case 4-RC-1059
27 June 1984
DECISION AND DIRECTION OF
ELECTION
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 7 July 19821 the Petitioner filed a petition
under Section 9(c) of the National Labor Relations
Act. On 5 August following an investigation, the
Regional Director for Region 4 administratively
dismissed the petition, concluding that it was
barred by a memorandum of agreement, which the
Employer and District 1199C had executed 29
June. The Regional Director found that the memo-
randum of agreement contained terms and condi-
tions of employment sufficient to constitute a bar,
because it incorporated by reference the terms of
the parties' collective-bargaining agreement which
expired 30 June, set forth the duration of a new
contract, and contained modifications of the lan-
guage and changes in the economic terms of the
previous contract. In addition, he specifically found
that the memorandum of agreement had all of the
requisite signatures affixed to it; that the failure of
the National Union of Hospital and Health Care
Employees (the National Union) with which Dis-
trict 1199C is affiliated to sign the agreement was
inconsequential, because District 1199C, not the
National Union, is the employees' certified bargain-
ing representative; and that ratification of the
memorandum of agreement by unit employees was
unnecessary for contract-bar purposes, because nei-
ther the agreement itself, nor the terms it incorpo-
rated, expressly required it. Thereafter, the Em-
ployer filed with the Board a request for review of
the Regional Director's administrative dismissal of
the petition. The Employer contended, inter alia,
that the absence of the National Union representa-
tive's signature on the memorandum of agreement
rendered the agreement inoperative as a bar.2
i All dates are in 1982, unless otherwise indicated.
sThe Employer also disputed the Regional Director's finding that the
memorandum of agreement contained terms and conditions of employ-
ment sufficient to act as a bar. It contended as well that, contrary to
Board law, ratification, under the circumstances of this case, should be
required before the contract can constitute a bar, even though there was
no such requirement expressly stated in either the collective-bargaining
agreement or the memorandum of agreement. As we find merit in the
Respondent's principal contention, for the reasons stated herein, there is
no need to address these additional issues.
270 NLRB No. 195
On 2 November the Board issued its "Ruling on
Administrative Action," in which it concluded that
reinstatement of the petition and a hearing on the
issues raised by the Employer's request for review
were warranted. Accordingly, the petition was re-
instated and the case was remanded to the Region-
al Director for appropriate action.
On 19 January 1983 a hearing was held before
Hearing Officer Barbara J. Fick. Following the
close of the hearing and pursuant to Section 102.67
of the Board's Rules and Regulations, the Regional
Director transferred this proceeding to the Board
for decision. Thereafter, the Employer and District
1199C filed briefs with the Board.
The Board has reviewed the hearing officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby af-
firmed.
On the entire record in this proceeding, the
Board finds
1. The parties stipulated, and we find, that the
Employer is a Delaware corporation with its prin-
cipal office located in Newark, Delaware, and that
it provides contract management environmental
services. The parties further stipulated that, during
the year preceding the hearing, the Employer's
gross revenue exceeded $500,000, and that the Em-
ployer performed services valued in excess of
$50,000 for customers located outside the State of
Delaware. Accordingly, we find that the Employer
is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. District 1199C and the National Union of Hos-
pital and Health Care Employees, Division of
RWDSU/AFL-CIO, with which District 1199C is
affiliated, are labor organizations within the mean-
ing of the Act. District 1199C claims to represent
certain employees of the Employer. The Petitioner,
an employee of the Employer, asserts that District
1199C, which had been previously certified by the
Board and recognized by the Employer as the bar-
gaining representative of the employees involved
herein, is no longer such representative as defined
in Section 9(a) of the Act.
3. We find that a question affecting commerce
exists concerning the representation of certain em-
ployees of the Employer within the meaning of
Section 9(c)(1) and Section 2(6) and (7) of the Act.
In March 1980 the Board certified District
1199C, affiliated with National Union of Hospital
and Health Care Employees, Division of
RWDSU/AFL-CIO, as the exclusive bargaining
representative of the Employer's housekeeping em-
ployees employed at Haverford State Hospital in
Haverford, Pennsylvania. Thereafter, the Employer
and District 1199C negotiated their first collective-
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CROTHALL HOSPITAL SERVICES
bargaining agreement, effective 15 May 1980
through 30 June 1982. The title page of this agree-
ment states that it is "by and between NATION-
AL UNION OF HOSPITAL AND HEALTH
CARE EMPLOYEES, DIVISION OF RWDSU/-
AFL-CIO, AND ITS AFFILIATE DISTRICT
1199C and CROTHALL HOSPITAL SERV-
ICES, INC." Similarly, the preamble identifies the
parties to the agreement in the following manner:
THIS AGREEMENT made and entered
into this 15th day of May, 1980, by and be-
tween CROTHALL HOSPITAL SERV-
ICES, INC. (hereinafter called the "Employ-
er") and the NATIONAL UNION OF HOS-
PITAL AND HEALTH CARE EMPLOY-
EES, A DIVISION OF RWDSU, AFL-CIO,
AND ITS AFFILIATE DISTRICT 1199C
(hereinafter called the "Union"), acting herein
on behalf of the Employees of the said Em-
ployer, as hereinafter defined, now employed
and hereinafter to be employed and collective-
ly designated as the "Employees."
In the recognition clause and throughout the agree-
ment, District 1199C, the certified bargaining
agent, and its parent organization, the National
Union, are referred to jointly as the "Union."
Copies of the 1980-1982 agreement were signed
by representatives of the Employer, District 1199C,
and the National Union. Barbara Pearlstein and
Edward Shaeffer negotiated the agreement for Dis-
trict 1199C but, as neither of them was a union of-
ficer at the time, they did not have the authority to
sign the contract on the Union's behalf. Thus, they
initialed the agreement "For District 1199C" un-
derneath the signature lines provided for District
1199C and the National Union. Subsequently,
Henry Nicholas, who was both president of Dis-
trict 1199C and a National Union officer, executed
a second copy of the agreement on behalf of Dis-
trict 1199C. Copies of the contract then were for-
warded to the National Union's offices in New
York for execution by that organization. Robert
Muhlenkaup, a National Union officer, signed
them. 3
Prior to the expiration of the 1980-1982 agree-
ment, the Employer and District 1199C com-
menced negotiations on a new contract. Several
bargaining sessions were held and, 29 June, they
signed a cryptic, two-page memorandum of agree-
ment. It provided for a contract of 2 years' dura-
The National Union's constitution provides that:
All collective-bargaining contracts, extensions or renewals thereof
entered into by the Districts or their subdivisions, to be valid, must
be signed by the President of the National Union or his/her designee
and shall be and remain the property of the National Union and the
District.
tion, set forth certain wage rates, as well as the rate
of the Employer's benefit fund contributions, and
incorporated, with various modifications, the terms
of the collective-bargaining agreement set to expire
the following day. It is evident from the face of the
agreement that it was intended to be read in con-
junction with the 1980-1982 agreement.4
District 1199C had given Patricia DiDomenico,
an organizer, responsibility for negotiating the 1982
contract. She and Michael Nocho, a representative
from the bargaining unit, signed the memorandum
of agreement for District 1199C. 5 On 29 June, on
the conclusion of negotiations, DiDomenico in-
formed the Employer's representatives that the
contract needed to be ratified before it would
become effective. The following day, the members
of the bargaining unit voted not to ratify the con-
tract.
The testimony concerning the events subsequent
to the ratification vote of 30 June and up to and
including a second vote conducted on the morning
of 1 July is contradictory. There is disputed testi-
mony, for example, that at least some of the em-
ployees were misled into believing that the purpose
of the second vote was to determine only whether
or not the employees would support a strike. In
any event, it is plain that DiDomenico interpreted
the vote as one in favor of ratification and against a
strike, and that she so informed the Employer.
The Petitioner filed the decertification petition in
this case 7 July. On that date, the only signatures
on the memorandum of agreement were those of
DiDomenico, Nocho, and the Employer's repre-
sentatives. The National Union did not execute the
memorandum of agreement, or any other agree-
ment incorporating its terms, before the petition
was filed. In August, when District 1199C present-
ed the Employer with a draft contract, it refused to
sign.
The Employer contends that the memorandum
of agreement was signed by only two of the three
named parties to the agreement, and that the ab-
sence of the third signature, that of the National
Union, rendered it incapable of barring the instant
4 The body of the document is as follows:Agreed between Crothall
American at Haverford State Hospital and 1199C the following:
I) Contract 7/1/82 with expiration 7/30/84.
2) delete last sentence page 14 of present contract.
3) add I personal day to present holiday schedule.
4) add Sec. 2, such employees become members of the union no later
than 30th day of employment.
5) delete Sec. 1, 2, 3, and 7 Art. VIll of present contract.
6) accept new language presented for funds-Benefit Fund at 11.5%
effective 7/1/82.
7) Wages- 7/1/82 7/1/83
4.15 starting rate 4.20
4.65 after 60 days top rate 4.85
s There is no contention that these signatures were insufficient to bind
District 1199C, pending ratification of the contract.
1421
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
petition. District 1199C asserts that, because the
National Union plays no role whatsoever in any of
its contract negotiations, the failure of that organi-
zation to sign the memorandum of agreement had
no impact on either the validity of the agreement
or its ability to act as a bar. According to District
1199C, it forwarded the initial 1980-1982 collec-
tive-bargaining agreement to the National Union
for signature only because it was a formality re-
quired by the National Union's constitution.
In Appalachian Shale Products,6 the Board, as
part of a thorough reexamination of its contract-bar
rules, addressed the issue of "adequacy of con-
tract." The Board noted that it was a well-estab-
lished principle that "contracts not signed before
the filing of a petition cannot serve as a bar."7 It
observed, however, that, despite the simplicity of
the rule, a problem in application had developed,
noting that an exception had been created where
parties had considered an agreement properly con-
cluded and had put important provisions into
effect, but had failed to sign it prior to the filing of
a petition. As the Board considered its signature re-
quirement to be relatively simple, and also believed
that such exceptions had rendered "unduly com-
plex a field that should not have become so in-
volved," 8 the Boaid found that its policy in this
area warranted reconsideration. Therefore, consist-
ent with its stated intention of "simplifying and
clarifying . . . application [of contract-bar rules]
wherever feasible in the interest of more expedi-
tious disposition of representation cases," 9 the
Board adopted the following rule:' 0
[A] contract to constitute a bar must be signed
by all the parties before a petition is filed and
that unless a contract signed by all the parties
precedes a petition, it will not bar a petition
even though the parties consider it properly
concluded and put into effect some or all of its
provisions.
In the rule set forth above, the Board did not
state that a contract, to be a bar, need be signed
only by the Employer and the employees' certified
bargaining agent. Rather, the Board makes it quite
clear that, before an agreement can operate to bar
a petition, all the parties must have signed it. Thus,
if there are named parties to a collective-bargaining
agreement aside from the employer and the certi-
121 NLRB 1160(1958).
Id. at 1161.
Is d. at 1162.
8 Id. at 1161.
'o Id. at 1162.
fled bargaining agent, they too must sign the con-
tract before it may act as a bar. 1
Furthermore, we cannot conclude that the Board
failed to consider the issue of additional parties
when it reformulated its signature rule, since con-
tract-bar cases involving the voluntary addition of
parties to collective-bargaining agreements predat-
ed Appalachian Shale. In Filtration Engineers,
Inc., 2 the collective-bargaining agreement urged
as a bar stated that it was "between the Filtration
Engineers Incorporated, and the United Steel
Workers of America and its Local #2816."'3 Up
until a few years earlier, the International union
had executed agreements "on behalf' of the local.
The Board, noting that it was concerned only with
the express terms of the agreement, and not with
the relationship between the International and its
local as defined by the former's constitution, found
that the local was one of the named parties to the
contract and, as the local had never signed the
contract, it could not, therefore, constitute a bar.
In H. W. Rickel & Co.,1 4 the Board faced a simi-
lar set of circumstances. In that case, however, it
was the signature of the International union, not
the local union, which was missing at the time the
petition was filed. The recognition clause of the
contract in question named the local union as the
employees' exclusive bargaining agent. The pream-
ble, on the other hand, provided that the contract
was entered into between the employer, the local
union, and the International union. The Interna-
tional union had played no role whatsoever in the
contract negotiations. On reaching an agreement,
the employer and the local union signed the con-
tract, and, then, the local union forwarded it to the
International union for that organization's endorse-
ment. The International union however withheld
its endorsement and instructed the local union to
secure certain changes. The local union ignored the
parent body's instructions and, along with the em-
ployer, treated the contract as if it were in full
force and effect. Ultimately, the International union
signed the contract, but not before a petition was
filed. Consistent with Filtration Engineers, the
Board held that, because the International union, a
named party to the contract, failed to sign the con-
tract prior to the filing of the petition, the contract
was ineffective as a bar.
' The Supreme Court, in NLRB v. Wooster Division, 356 U.S. 342, 350
(1958), stated that the Act does not prohibit an employer and a union, if
willing, from adding another organization as a coparty to their collective-
bargaining agreement.
l2 98 NLRB 1210 (1952).
'3 Id. at 1211.
14 105 NLRB 679 (1953).
1422
CROTHALL HOSPITAL SERVICES
In Standard Oil Co.,' 5 the Board again had occa-
sion to consider the relationship between a local
union and its parent organization in a contract-bar
context. In that case, the local union was the certi-
fied bargaining agent. Although the International
union was not a coparty to the contract, the con-
tract nevertheless provided that the local union
would submit the contract to the International
union for its certification. The contract further pro-
vided that the agreement would be null and void if
the local union failed to notify the employer by a
specified date that the contract had been certified.
At the time the petition was filed, the International
union had not yet certified the contract. The Board
found that Rickel was not controlling in this in-
stance. "[A] requirement for certification by an or-
ganization which is not a named party to the contract
[emphasis added]," the Board concluded, "is not a
substantial requirement necessary to achieve stabili-
ty in the bargaining relationship of the named par-
ties." 1 6
Here, the Employer and District 1199C added
the parent labor organization as a named party to
their contract. Therefore, the instant case is gov-
erned by Filtration Engineers and H. W. Rickel,
rather than by Standard Oil. District 1199C was
certified as the exclusive bargaining representative
of the unit employees following a Board-conducted
election. The National Union was not certified
along with District 1199C as the employees' joint
bargaining agent.' 7 Thus, the concomitant statuto-
ry obligation of the Employer to bargain with the
certified union ran only to District 1199C, and not
to the National Union.'8 However, the collective-
is 119 NLRB 598 (1957).
I Id. at 600.
17 In administratively dismissing the petition in the instant case, the
Regional Director found that the signature of the National Union on the
memorandum of agreement (which incorporated by reference the 1980-
1982 agreement) was unnecessary for contract-bar purposes, citing Phar-
maseal Laboratories, 199 NLRB 324 (1972). That case, however, is inap-
posite. In Pharmaseal, two local unions were jointly certified to represent
the employees in a single bargaining unit. The failure of one of the two
locals to sign the contract, the Board held, did not prevent the contract
from barring the petition because, in cases of joint certification, the joint
representative constitutes a single party. Therefore, the signature of one
of the two locals acting on behalf of the joint representative was all that
was required to bind the two locals to the contract Here, as in Filtration
Engineers and H. W: Rickel, the Unions involved were not jointly certi-
fied. The missing signatures in those two cases, like the absent signature
in this case, were those of third-party unions, voluntarily added by the
employers and the certified unions as coparties to their respective con-
tracts.
18 Standard Oil Co., 92 NLRB 227, 236 (1950).
In Member Hunter's view, Standard Oil Co.. supra, 119 NLRB 598,
and Pharmaseal Laboratories, supra, are fundamentally inconsistent with
the instant decision's strict application of the requirements of Appalachian
bargaining history between the Employer and Dis-
trict 1199C reveals that they nevertheless agreed to
include the National Union as a coparty to both
their 1980-1982 and 1982 agreements. The express
language of the 1980-1982 collective-bargaining
agreement, which was incorporated by reference
into the 29 June memorandum of agreement, plain-
ly identifies the National Union as a party to the
contract. On the title page and in the preamble of
the agreement, the contracting parties are identified
as the Employer, the National Union, and District
1199C. Unlike the designation which appears in the
Board certification, in which the name of the Na-
tional Union appears only for the limited purpose
of identifying the parent organization with which
the certified union, District 1199C, is affiliated,
both labor organizations are referred to in the con-
tract conjunctively as contracting parties.1 9
Significantly, the change in designations from
that in the certification, "District 1199C, affiliated
with National Union of Hospital and Health Care
Employees, Division of RWDSU/AFL-CIO," to
that in the contract, "NATIONAL UNION OF
HOSPITAL AND HEALTH CARE EMPLOY-
EES, DIVISION OF RWDSU/AFL-CIO, AND
ITS AFFILIATE DISTRICT 1199C," was entire-
ly consistent with the National Union's constitu-
tion, which provides, in pertinent part, that a col-
lective-bargaining agreement entered into by a Dis-
trict cannot be valid unless it is signed by the Na-
tional Union. 20 By this action, District 1199C and
the Employer expressly added the National Union
as a named party to their collective-bargaining
agreement and, as a consequence, made it neces-
sary for the National Union to sign the contract in
that capacity before it could become a bar. It is un-
disputed that the contract urged as a bar did not
contain the signature of the National Union at the
time the petition was filed. The contract does not,
therefore, constitute a bar to the petition.
4. The parties agreed, and we find, that the fol-
lowing unit is appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
Shale, supra, with which Member Hunter agrees. In order to clarify the
case law in this regard, Member Hunter would overrule these decisions.
"D Cf Kit Mfg. Co., 150 NLRB 662, 672 (1964) (International union
was not a party to a contract between an employer and a certified local
union, where the preamble of the contract did not refer to the Interna-
tional and its local conjunctively, but, rather, utilized the same designa-
tion which appeared in the Board certification, one which included the
name of the International union only to identify the local union's parent
organization)
20 See fn. 3, supra.
1423
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All housekeeping employees employed by the
Employer at Haverford State Hospital, exclud-
ing office and clerical employees, temporary
employees, professional employees, technical
employees, confidential employees, managerial
employees, guards and supervisors as defined
in the Act.
[Direction of Second Election omitted from pub-
lication.]
1424