Kaiser Foundation Hospitals

National Labor Relations Board - Board Decisions

Aug 1, 2002

337 N.L.R.B. 1061 (N.L.R.B. 2002)

KAISER FOUNDATION HOSPITALS 1061
Kaiser Foundation Hospitals, Kaiser Foundation
Health Plan, Inc., and the Permanente Medical
Group, Inc. and Office & Professional Employ­
ees International Union, Local 29, AFL–CIO,
Petitioner. Case 32–UC–385
August 1, 2002
ORDER DENYING REVIEW
BY CHAIRMAN HURTGEN AND MEMBERS LIEBMAN
AND COWEN
The National Labor Relations Board, by a three-
member panel, has considered the Petitioner’s request for
review of the Acting Regional Director’s Decision and
Order dismis sing the petition (pertinent portions of
which are attached as an appendix). The unit clarifica­
tion petition seeks to include temporary agency employ­
ees who have been employed at the Employer’s for over
60 days.
The issue presented for review is whether the Acting
Regional Director erred in dismissing the petition be-
cause the temporary agency employees have been his­
torically excluded from the unit, rejecting the Petitioner’s
contention that the Board’s recent decision in M.B. Stur­
gis, Inc., 331 NLRB 1298 (2000), justifies processing the
petition.
We find that the petition in this case was properly dis­
missed under the Board’s unit clarification principles gov­
erning historically excluded classifications. The Board
will not entertain a unit clarification petition seeking to
accrete a historically excluded classification into the unit,
unless the classification has undergone recent, substantial
changes. Bethlehem Steel Corp., 329 NLRB 243, 244
(1999). The Board’s decision in Sturgis was not intended
to reverse this longstanding Board doctrine, and temporary
employees who are jointly employed are not excepted
from this principle. Further, absent recent substantial
changes, the Board will not entertain such a petition, re­
gardless of when in the bargaining cycle the petition is
filed, even if there has been a change in the Board’s deci­
sional law. Caesar’s Palace, 209 NLRB 950 (1974).
The Petitioner does not dispute the Acting Regional
Director’s finding that there is no evidence of any recent,
substantial changes in the Employer’s operations that
would call into question the placement of the temp orary
agency employees in the unit. Lacking any recent, sub­
stantial changes, we find that, regardless of the change in
law occasioned by the Board’s decision in Sturgis, the
historical exclusion of the temporary agency employees
makes it inappropriate to entertain a unit clarification
petition to include these employees in the unit. Accord­
ingly, we deny the Petitioner’s request for review of the
Acting Regional Director’s dismissal of the petition.1
APPENDIX
DECISION AND ORDER
Upon a petition filed under Section 9(c) of the National La­
bor Relations Act, as amended, careful investigation and con­
sideration took place.1
Pursuant to the provisions of Section 3(b) of the Act, the
Board has delegated its authority in this proceeding to the un­
dersigned Acting Regional Director.
Upon the entire record in this proceeding, the Acting Re­
gional Director finds:
(1) The Employer is engaged in commerce within the mean­
ing of the Act and it will effectuate the purposes of the Act to
assert jurisdiction.
(2) Petitioner proposes to clarify the bargaining unit as fol­
lows: Petitioner seeks to include in its current collective-
bargaining unit temporary agency employees who have been
employed at the Employer over 60 days in its geographical
jurisdiction.
(3) Clarification of the bargaining unit is presently not war-
ranted inasmuch as the investigation revealed that the tempo­
rary agency employees sought by Petitioner historically have
been excluded from the bargaining unit. Specifically, a series
of collective-bargaining agreements covering the unit at issue,
including the current agreement effective October 1, 2000,
through November 3, 2006, have contained provisions that
reflect that work performed by temporary agency employees is
deemed outside the bargaining unit. Pursuant to established
Board law, unit clarification is not appropriate during the term
of a contract where such clarification would upset the agree­
ment of the parties concerning the exclusion of various indi­
viduals. Union Electric Co., 217 NLRB 666, 667 (1975); and
Batesville Casket Co., 283 NLRB 795, 797 (1987). There was
no evidence that there have been any changes in the functions
performed by the temporary agency employees or any other
circumstance which would render the Union Electric rule inap­
plicable. Although the Petitioner contends that the Board’s
recent decision in M.B. Sturgis, Inc., 331 NLRB 1298 (2000),
authorizes the granting of the petition for clarification, there is
nothing in that decision indicating that the Board has overruled
1 Member Cowen did not participate in M.B. Sturgis, supra and ex-
presses no view regarding the validity of that decision. Member Cowen
agrees with his colleagues that the Board’s decision in Sturgis does not
purport to alter the Board’s unit clarification principles governing his­
torically excluded classifications, and that the Acting Regional Director
properly dismissed the instant petition.
1 The parties each provided position papers and documents in sup-
port of their respective positions. A review of those materials reveals
that the facts in this matter as discussed infra are undisputed.
337 NLRB No. 165
1062 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
or limited its Union Electric rule in any way. It is noted that ORDER

the parties’ current contract became effective in October 2000, IT IS HEREBY ORDERED that the petition in the instant case be,

after the Board’s Sturgis decision had issued. Accordingly, and it hereby is, dismissed.

unit clarification remains inappropriate in this matter.