De Paul Adult Care Communities

National Labor Relations Board - Board Decisions

Apr 28, 1998

325 N.L.R.B. 681 (N.L.R.B. 1998)

681
325 NLRB No. 132
DE PAUL ADULT CARE COMMUNITIES
1 The only issue on which review was requested was the Regional
Director’s finding that there was no contract bar to the processing
of the instant petition.
De Paul Adult Care Communities, Inc. and Ronald
E. Nerau, Petitioner and District 1199, Roch-
ester Hospital & Healthcare Employees Union,
SEIU, AFL–CIO. Case 3–RD–1261
April 28, 1998
ORDER DENYING REVIEW
BY CHAIRMAN GOULD AND MEMBERS FOX AND
LIEBMAN
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel, which has considered the Union’s Request for
Review of the Regional Director’s Decision and Direc-
tion of Election (pertinent portions of which are at-
tached as an appendix).1 The request for review is de-
nied as it raises no substantial issues warranting re-
view.
APPENDIX
REGIONAL DIRECTOR’S DECISION AND
DIRECTION OF ELECTION
. . . .
4/ The sole issue raised during the hearing is whether a
collective bargaining agreement between the Employer and
the Union would bar the processing of the petition. The
Union takes the position that a collective-bargaining agree-
ment did exist, as the Union had accepted the Employer’s
contractual offer in its entirety and communicated its accept-
ance to the Employer before the petition was filed. The Em-
ployer asserts that a collective-bargaining agreement did not
exist, because the Employer never indicated in writing its
offer or acceptance of a collective-bargaining agreement.
The Union has represented the bargaining unit herein for
approximately 2 years. It was certified by the Board as the
unit’s collective-bargaining representative in November 1995.
Thereafter, the Union and the Employer entered into a col-
lective-bargaining agreement which was effective from Sep-
tember 27, 1996 to December 31, 1997. Ninety days prior
to the expiration of the collective-bargaining agreement, the
Union notified the Employer of its desire to reopen negotia-
tions for a new agreement. The parties had contractual dis-
cussions via telephone during the fall and winter of 1997.
There were no written offers made during these discussions;
however, the Union memorialized what it believed to be the
Employer’s final contract offer in a letter dated January 6,
1998. The letter, composed by the Union’s president, Bruce
Popper, was faxed to the Employer’s Vice President of
Human Resources, Sue Potter-Tuma, on the same date. In the
letter, Popper indicated that the Union intended to present the
Employer’s offer to its members and to seek their approval
on January 7, 1998. The letter further stated that, in the event
of the members’ approval, the Union would be requesting a
brief negotiating meeting to formalize its acceptance of the
Employer’s offer.
The Union’s members ratified the Employer’s offer on
January 7, 1998. The Union asserts that, immediately prior
to the ratification meeting, Potter-Tuma left a telephone mes-
sage for Popper stating that the information contained in the
January 6, 1998 letter accurately reflected the parties’ agree-
ment. At the hearing, Potter-Tuma did not recall leaving such
a message; however, she admitted that the January 6, 1998
letter accurately reflected the Employer’s contractual offer.
On January 14 or 15, 1998, Popper informed Potter-Tuma,
via telephone, that the Union’s members had ratified the
agreement, that it was final and that the Union was ‘‘all
set.’’ Both parties agree that as of January 14 or 15, 1998,
all of the issues had been resolved and there were none left
to be negotiated.
By letter dated January 21, 1998, Potter-Tuma proposed to
Popper that the parties meet on February 4, 1998, in light of
the cancellation of the negotiating session scheduled for Jan-
uary 29, 1998. On January 22, 1998, Popper faxed to the
Employer’s attorney draft language for the contract articles
which were to be changed to reflect the Employer’s offer.
The Employer admits that the language contained therein
was also an accurate reflection of its offer as contained in
the Union’s letter of January 6, 1998. The Employer never
signed any document containing the contractual revisions,
nor did the parties ever meet to formalize or sign an agree-
ment. On January 22, 1998, the Petitioner filed the instant
petition.
In order for an agreement to serve as a bar to an election,
it must satisfy certain substantive and formal requirements
which have been well established by Board case law. In Ap-
palachian Shale Products Co., 121 NLRB 1160 (1958), the
seminal case setting forth these requirements, the Board held
that to constitute a bar to an election, an agreement contain-
ing substantial terms and conditions of employment sufficient
to stabilize the parties’ bargaining relationship must be
signed by the parties prior to the filing of the petition. See
also Seton Medical Center, 317 NLRB 87 (1995). The agree-
ment need not be embodied in a formal document. An infor-
mal document or series of documents, such as a written pro-
posal and a written acceptance, which nonetheless contain
substantial terms and conditions of employment, are suffi-
cient if signed. Id. (Citing Appalachian Shale, supra, and
Georgia Purchasing, 230 NLRB 1174 (1977)). I conclude, as
discussed below, that the agreement between the Union and
the Employer does not meet the formal requirements suffi-
cient to establish it as a bar to the instant petition.
Although the parties orally resolved all outstanding con-
tractual issues as of January 15, 1998, the Employer signed
neither of the proposed revisions submitted to it by the
Union, nor did it reduce its own proposals to a writing which
was thereafter signed. The Board has made it clear that con-
tracts not signed before the filing of a petition cannot serve
as a bar. Appalachian Shale, supra. Moreover, in Appalach-
ian Shale, the Board specifically held that such unsigned
contracts would not bar a petition, even though the parties
consider it properly concluded and they put into effect some
or all of its provisions. Appalachian Shale, supra at 1162.
Thus, the Union’s argument, including its reliance on
Auciello Iron Works, Inc., 303 NLRB 562 (1991); remanded
NLRB v. Auciello Iron Works, 980 F.2d 804 (1st Cir. 1992);
supplemental opinion 317 NLRB 364 (1995), enfd. 60 F.3d
24 (1st Cir. 1995), affirmed 517 U.S. 781 (1996), that the
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682 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
agreement between it and the Employer should act as a bar
because it came into being before the petition was filed, is
unconvincing. Although, as noted in Auciello, supra, the mo-
ment of apparent contract formation serves as a yardstick for
determining when an employer may, in the context of an al-
leged unfair labor practice, raise a good-faith doubt as to a
union’s majority status, it is of no moment in a contract-bar
context, if the collective-bargaining agreement is unsigned.
Without the Employer’s signature on the collective-bargain-
ing agreement, or some document referring thereto, the
agreement is insufficient to act as a bar.
St. Mary’s Hospital, 317 NLRB 89 (1995), also relied on
by the Union, does not support a contrary finding. In St.
Mary’s, the parties had signed a tentative agreement which
incorporated by specific reference other signed and dated ten-
tative agreements for individual issues which had been re-
solved between the parties during the course of negotiations.
The issue presented was whether the signed tentative agree-
ment was sufficient to constitute a bar, despite the fact that
there were several discrepancies between the language con-
tained therein and that which was actually agreed on by the
parties. The Board was not presented with the question raised
herein, i.e., whether an unsigned document could constitute
a bar to an election.
Based on the foregoing, and the record as a whole, I con-
clude that the instant petition is not barred by any agreement
which may have existed between the Union and the Em-
ployer at the time it was filed.
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