Kaleida Health

National Labor Relations Board - Unpublished Board Decisions

Dec 14, 2012

03-RC-077821 (N.L.R.B. Dec. 14, 2012)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
KALEIDA HEALTH
Employer
and Case 03-RC-077821
CONCERNED CARPENTERS FOR
A DEMOCRATRIC UNION
Petitioner
and
BUFFALO BUILDING AND CONSTRUCTION
TRADES COUNCIL, AFL-CIO
Intervenor
and
NORTHEAST REGIONAL COUNCIL
OF CARPENTERS
Intervenor
ORDER
The Petitioner’s Request for Review of the Regional Director’s Decision and
Direction of Election is denied as it raises no substantial issues warranting review.1
MARK GASTON PEARCE, CHAIRMAN
BRIAN E. HAYES, MEMBER
RICHARD F. GRIFFIN, JR., MEMBER
Dated, Washington, D.C., December 14, 2012

1 The Regional Director reasoned, in part, from the premises that (1) the employees in the
petitioned-for unit are “unrepresented” and (2) the Employer is not acting as a
construction industry employer within the meaning of Sec. 8(f) with respect to the
renovation work performed by unit employees. We disavow both of these premises. The
employees are represented by the Buffalo Building & Construction Trades Council and
the Northeast Regional Council of Carpenters pursuant to pre-hire agreements with the
Employer covering these employees. Therefore, we do not rely on the Regional
Director’s application of Sec. 103.30(c) of the Board’s Rules and Regulations relating to
acute healthcare facilities, under which she determined that the petitioned-for unit
qualifies as a residual unit of previously unrepresented employees or, alternatively, as a
preexisting, nonconforming unit. Instead, we apply the principle that the appropriate
unit, when a representation petition concerns the employees of a single employer covered
by a prior 8(f) agreement, is “normally” the single employer’s employees covered by the
agreement. John Deklewa & Sons, 282 NLRB 1375, 1377 (1987), enfd. sub nom. Iron
Workers, Local 3 v. NLRB, 843 F.2d 770 (3d Cir. 1988). In doing so here, we also rely
on the parties’ stable, 6-year bargaining history under their pre-hire agreements. See
Grace Industries, LLC, 358 NLRB No. 62, slip op. at 9-10 (2012) (8(f) bargaining
history, while not controlling, is a relevant consideration in determining the appropriate
unit); P.J. Dick Contracting, 290 NLRB 150, 151 (1988) (Board relied on the parties’
8(f) bargaining history in determining the appropriate unit).
We agree that the Regional Director properly rejected the Petitioner’s argument
that the craft-severance criteria set out in the Board’s decision in Mallinckrodt Chemical
Works, 162 NLRB 387 (1966), favor a finding that the petitioned-for unit of carpenters is
an appropriate collective-bargaining unit in this instance. But in doing so, we do not rely
on the Regional Director’s subsidiary finding that the carpenters’ work for the Employer
was sufficiently integrated with that of the other construction crafts so as to weigh against
a separate unit. See Burns & Roe Services Corp., 313 NLRB 1307, 1309 (1994).
Instead, we would rely on the Regional Director’s consideration of other Mallinckrodt
factors, which weighed in favor of a broader construction crafts unit.
Member Hayes regards the application of Sec. 103.30(a) and (c) of the Board’s
Rules as dispositive of the appropriate bargaining unit issue presented here with respect
to an acute healthcare facility’s employees who have not previously been represented by
a labor organization under Sec 9(a). Accordingly, he finds no need to reach the Regional
Director’s craft-severance analysis.