Marian Medical Center

National Labor Relations Board - Board Decisions

May 30, 2003

339 N.L.R.B. 127 (N.L.R.B. 2003)

MARIAN MEDICAL CENTER 127
Catholic Healthcare West Southern California d/b/a
Marian Medical Center and Caregivers and
Healthcare Employees Union (CHEU), Peti-
tioner and Healthcare Employees Union Local
399, SEIU, AFL–CIO, Intervenor. Case 31–RC–
8045
May 30, 2003
DECISION, DIRECTION, AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND ACOSTA
The National Labor Relations Board, by a three-
member panel, has considered determinative challenges
in an election held November 13 and 14, 2001, and the
hearing officer’s report recommending disposition of
them.1 The tally of ballots shows 172 for Petitioner
Caregivers and Healthcare Employees Union (CHEU),
10 for Intervenor Healthcare Employees Union Local
399, SEIU (SEIU), and 150 votes against the participat-
ing labor organizations, with 36 challenged ballots, a
determinative number. In addition, the Board has con-
sidered certain objections and exceptions filed by the
Employer and the Intervenor.
The Board has reviewed the record in light of the ex-
ceptions and briefs, and adopts the hearing officer’s find-
ings and recommendations, except for: (a) his recom-
mended disposition of Ruby Sagisi’s challenged ballot

1 Included in the unit are: All full time and regular part-time techni-
cal employees, skilled maintenance employees, and other nonprofes-
sional employees employed by the Employer at its facility at 1400 East
Church Street in Santa Maria, California, including employees in the
following job classifications: Biomed tech; maintenance engineer;
cardiovascular tech; cath lab tech; licensed vocational nurse (LVN);
nuclear medical tech; radiology tech i, ii, and iii; respiratory tech; sur-
gical tech (also called OR tech); and ultrasound tech; EEG tech; van
driver (in admitting); clerk/typist (except in medical records and patient
accounting); certified nursing assistant (CNA); cook; courier; central
supply aide, central supply tech; dietary clerk, dietary aide, dietary
tech; EKG tech; emergency room tech; food service workers I, II, and
III; GI tech; housekeeper; instrument tech; lab assistant I, II, III, and
IV; lab tech; linen folder; monitor observer/monitor tech; unit
clerk/nursing assistant/monitor observer (UC/NA/MO); nurses aid;
obstetrics tech (OB tech); operating room aide; operating room sched-
uler; unit clerk/scheduler; pharmacy courier; pharmacy clerk; printer;
project housekeeper; physical therapy aide; buyer; scrub tech/unit clerk;
storeroom clerk; tissue tech/pathology assistant; unit clerk; materials
distribution clerk; materials distribution aide; clerk (departments);
admitting clerk (except discharge counselor and insurance verifier);
assistant buyer; transporter; senior nurses aide; unit clerk/EKG tech;
front desk receptionist and pharmacy tech. Excluded from the unit are:
All other employees, business office clericals, employee health em-
ployees, information systems employees, professional employees,
guards, confidential employees, managerial employees, and supervisors
as defined in the Act.
and a related election objection;2 and (b) his finding and
recommendation regarding the voting eligibility of main-
tenance engineer Florencio Montoya.3
Montoya’s regular place of duty was at the Employer’s
Marian West satellite facility. The hearing officer found
that Montoya was temporarily and indefinitely assigned
to work at the Employer’s main facility at 1400 Church
Street, the location specified in the unit description, dur-
ing the payroll eligibility period and on the date of the
election. Accordingly, the hearing officer found that
Montoya was an eligible voter and recommended that the
challenge to his ballot be overruled. The Employer con-
tends that Montoya was a temporary employee and, as
such, was ineligible to vote. We find merit in the Em-
ployer’s exception.
Legal Standard
As a general rule, an employee who is employed and
working in the unit on the payroll eligibility date and the
date of the election is eligible to vote. The rule is not a
rigid one, and there are exceptions. NLRB v. New Eng-
2 The Employer filed several objections to the conduct of the elec-
tion, one of which was founded on the failure of Ruby Sagisi, a chal-
lenged voter, to place her ballot in a challenge envelope before deposit-
ing it in the ballot box. Thus, Sagisi’s ballot was commingled with the
other ballots and could not be identified as a challenged ballot. Be-
cause the challenged ballots in this matter were potentially determina-
tive, the hearing officer proposed alternative methods for addressing
Sagisi’s ballot and voting eligibility and resolving the result of the
election. The Board finds that only 10 of the 36 challenged ballots are
valid and should be counted. Thus, it is clear that the valid challenged
ballots, when added to the revised tally of ballots, cannot affect the
result of the election, regardless of Sagisi’s vote. Accordingly, we need
not further address the status of her ballot or the Employer’s objection
to its having been commingled with the other ballots.
3 We adopt pro forma the following recommendations of the hearing
officer, to which there were no exceptions: to overrule challenges to the
ballots of Smith and Malone on the basis of their alleged supervisory
status; to overrule a challenge to the ballot of Ramos based on an inad-
vertent error, timely corrected, checking her name on the Excelsior list
when another employee named Ramos voted; to overrule Employer
Objection 22, regarding an error, timely corrected, in logging in a chal-
lenged ballot; to overrule Intervenor Objection 1, alleging discrimina-
tory access rules; to overrule Intervenor Objection 2, alleging surveil-
lance; to overrule Intervenor Objections 4 and 5, alleging the unlawful
announcement and grant of a wage increase; and to overrule Intervenor
Objection 6, alleging unspecified other unlawful conduct.
We adopt the following recommendations by the hearing officer, as
we find no merit in the exceptions: (1) The recommendation to over-
rule the challenge to Lafaive’s ballot based on her employment loca-
tion. Chairman Battista concurs in this result but expresses concern as
to whether the standard set forth in Davison-Paxon Co., 185 NLRB 21
(1970), should be applied to employees who are also employed by the
same employer in nonbargaining unit positions or locations. (2) The
recommendation to sustain challenges to the ballots of 11 transcription-
ists, a classification not expressly addressed in the unit description, on
the basis that the transcriptionists have a community of interest with the
business office clerical employees, who are expressly excluded from
the unit.
339 NLRB No. 23
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 128
land Lithographic Co., 589 F.2d 29 (1st Cir. 1978). The
Board considered one such exception, relevant here, in
Pen Mar Packaging Corp., 261 NLRB 874 (1971).
There, the Board applied its well-established test for de-
termining the voting eligibility of an employee classified
as temporary:
It is established Board policy that a temporary em-
ployee is ineligible to be included in the bargaining unit
[footnote omitted] and that an employee’s eligibility
status is determined by his status as of the eligibility
payroll date. [Footnote omitted.]
The critical inquiry is whether the employee’s tenure of
employment remains uncertain. Only then would the em-
ployee be eligible to vote. NLRB v. New England Litho-
graphic, supra, relying on Lloyd A. Fry Roofing Co., 121
NLRB 1433 (1958), and Personal Products Corp., 114
NLRB 959 (1955). Accord: NLRB v. S.R.D.C., Inc., 45
F.3d 328 (9th Cir. 1995; Kinney Drugs, Inc. v. NLRB, 74
F.3d 1419 (2d Cir. 1996).
At issue in Pen Mar was the eligibility of a temporary
employee who had been hired to work only during the
summer months, without expectancy of permanent em-
ployment. The employee was retained for a short time
beyond the intended summer period when the work he
was hired to perform lasted longer than originally antici-
pated. Thus, the employee remained temporarily in the
employer’s service during a period encompassing the
voting eligibility period. The Board found that the em-
ployee remained, at all times, a temporary employee, and
that his prospect of termination at summer’s end was
sufficiently finite to dispel reasonable contemplation of
continued employment thereafter. Accordingly, the
Board found that the employee did not share a commu-
nity of interest with the unit employees and, thus, was
ineligible to vote, notwithstanding the limited extension
of his temporary, finite work assignment.
Subsequently, in St. Thomas-St. John Cable TV, 309
NLRB 712 (1992), the Board considered the voting eli-
gibility of a student hired pursuant to the employer’s
established work-study program to work on a filing pro-
ject with the unit employees for a term limited to 1 year,
beginning in November 1990. It was anticipated, pursu-
ant to the work-study program, that the student would
depart in September 1991 for college study. In August
1991, however, the student informed the employer she
would not be going to college and sought permanent em-
ployment. The employer did not hire her for a perma-
nent position, but retained her as a temporary employee
“until the filing backlog was completed,” a task esti-
mated to require 3–4 months, but which ultimately took
more than 6 months. The student subsequently cast a
challenged ballot in the union election. A week later, the
employer announced that the employee’s temporary job
would end in 15 days, because the filing project for
which she had been employed was completed. The
Board found the student ineligible to vote. Relying on
Pen Mar, the Board, at 309 NLRB at 713, explained that
the test for voting eligibility
does not require a party contesting an employee’s eligi-
bility to prove that the employee’s tenure was certain to
expire on an exact calendar date. It is only necessary to
prove that the prospect of termination was sufficiently
finite on the eligibility date to dispel reasonable con-
templation of continued employment beyond the term
for which the employee was hired.
Because it was clear that the employer retained the student
as a temporary employee to complete a specific filing back-
log project of several months duration, the Board found that
the filing job’s ultimate completion was an ascertainably
certain event sufficient to preclude the student’s voting eli-
gibility.
The Board has focused, in these and similar cases, on
the critical nexus between an employee’s temporary ten-
ure and the determination whether he shares a commu-
nity of interest with the unit employees sufficient to qual-
ify as an eligible voter. That is, in determining whether
an employee classified as temporary is eligible to vote,
the Board examines whether or not the employee’s ten-
ure is finite and its end is reasonably ascertainable, either
by reference to a calendar date, or the completion of a
specific job or event, or the satisfaction of the condition
or contingency by which the temporary employment was
created. Hygeia Coca-Cola Bottling Co., 192 NLRB
1127, 1129 (1979) (students hired for one summer with-
out expectancy of continued employment); Kaiser Ce-
ment & Gypsum, 158 NLRB 1740, 1744 (1966) (em-
ployees included in one unit who were temporarily trans-
ferred to work at location of a separate unit); FWD
Corp., 138 NLRB 386, 390 (1962) (employee on 6-
month temporary training assignment to unit location);
and Irwin & Lyons Contractors, 51 NLRB 1370, 1373
(1943) (employees transferred from one logging camp to
another during temporary shutdown). As a general rule,
a temporary employee hired for a finite, ascertainable
term likely will not have a community of interest with
unit employees sufficient to qualify him to vote. A tem-
porary employee hired for an indeterminate term, who is
working during the voting eligibility period, is generally
more likely to be a qualified voter.4

4 As shown, in the context of the voting eligibility of a temporary
employee, whose community of interest with the unit employees is
uncertain, the Board inquires whether the termination of the temporary
employment is “sufficiently finite . . . to dispel reasonable contempla-
tion of [the employee’s] continued employment beyond the term for

MARIAN MEDICAL CENTER 129
Montoya’s Challenged Ballot
Applying these principles to the instant case, we find
that Montoya’s assignment to work at the Employer’s
main facility was at all times a temporary assignment, the
duration and end of which was tied to specific conditions
and events and, thus, was sufficiently ascertainable to
render him ineligible to vote in the election.
It is undisputed that Montoya, a part-time maintenance
worker, was permanently and regularly employed on the
weekend shift at the Employer’s Marian West facility, a
location not included in the unit description. Thus, he
ordinarily would not have been an eligible voter. How-
ever, in May 2001, 5 months before the October payroll
eligibility date for the election, the Employer transferred
Montoya to its main campus, the location covered by the
unit description, where he was working during the pay-
roll eligibility period. The testimony of Operations
Manager Dennis Daniel shows that the Employer in-
tended to continue Montoya’s assignment to the main
campus facility only until the Employer hired a replace-
ment for Montoya at the main campus facility, that the
Employer intended to hire the replacement as soon as
renovations at the Marian West facility were completed,
and that the Employer intended to transfer Montoya back
to the Marian West facility at that time. In short, the
evidence shows that Montoya was assigned to the main
campus facility for a finite, ascertainable term—that is,
the duration of the Marian West facility renovation. In-
deed, the evidence shows that the Employer transferred
Montoya back to Marian West as planned. Further, we
note that the Employer did not change the accounting
cost center on Montoya’s payroll account from Marian
West to the main facility during Montoya’s temporary
assignment, a fact that further supports the Employer’s
assertion that it always intended to transfer Montoya
back to Marian West.
There is a conflict in the evidence regarding whether
the Employer informed Montoya that the transfer was
temporary. Montoya testified that he was not so in-
formed. Daniel testified that he told Montoya that the
transfer was temporary, without giving him a specific

which he was hired.” (Emphasis added.) St. Thomas-St. John Cable
TV, supra. As the cited cases illustrate, this inquiry is to be distin-
guished from the Board’s standard for determining the voting eligibility
of an employee who otherwise would have been working in the unit on
the voting eligibility dates but did not work due to temporary layoff. In
such cases, the absent employee has established a community of inter-
est with the unit employees by virtue of his history of employment in
the unit. Accordingly, the Board need only determine whether the
employee has a reasonable expectation of returning to work and con-
tinuing his employment in the unit once the condition or contingency
causing the absence has ended.
time frame. The hearing officer did not resolve this con-
flict, and we need not do so.5
For the reasons we have discussed, we find that, as of
the voting eligibility period and on the date of the elec-
tion, the term of Montoya’s temporary assignment was
both finite and reasonably ascertainable. It was clear that
his assignment at the main facility would end with the
Employment of his replacement, in conjunction with the
completion of renovations and reopening of the Marian
West facility. Therefore, we find that Montoya did not
share a community of interest with the unit employees
and was not eligible to vote.6
DIRECTION7
IT IS DIRECTED that Employer Objections 21 and 22,
and Intervenor Objections 1, 2, 3, 4, 5, and 6 are over-
ruled.
IT IS FURTHER DIRECTED that the challenges to the bal-
lots cast by Lindsay Brown, James Caldwell, Teresa
Garza, Ray Becerra, Teresa Souza, Davina Lloyd, An-
gelita San Gabriel, Rose Dakeen, Linda Brock, Ellen
Palmer, Christine McCann, Margaret Scharf, Cleora
Dornan, Karla Smith, Rebecca Warden, Melinda Ver-
roco, Anita Flores, and Florencio Montoya are sustained.
IT IS FURTHER DIRECTED that challenges to the ballots
cast by Sally Casarez, Karen Foley, Debra Smith, Tim
Malone, Imelda Ramos, and Lisa LaFaive are overruled,
and that the Regional Director shall, within 10 days from
the date of this Decision, Direction, and Order, at the
5 The question, as explained in Pen Mar and St. Thomas-St. John
Cable TV, is whether the prospect of the end of Montoya’s assignment
to the main facility was sufficiently finite and ascertainable, on the
payroll eligibility date, to dispel reasonable contemplation of his con-
tinued employment at the Employer’s main facility. The answer to this
question does not necessarily turn on resolution of the conflict in testi-
mony regarding what explanation, if any, the Employer gave to
Montoya when it temporarily assigned him to the main facility. We do
not hold that such evidence could never be a relevant or dispositive
factor in determining whether an assignment is temporary. We hold
only that here it is not.
6 Compare Ameritech Communications, Inc., 297 NLRB 654 (1990)
(temporary employees eligible to vote where they were hired for an
indefinite period without a specific ending date or relation to a specific
work assignment or contingency, and the employer transferred them
between jobs as one job was completed and another undertaken). Here,
in contrast, it is clear that the Employer intended, from the outset, to
terminate Montoya’s temporary assignment and return him to his regu-
lar job after it filled the vacancy at the main facility, and on the comple-
tion of renovations and reopening of the Marian West facility.
7 Prior to the hearing, the parties agreed to sustain the challenges to
the ballots of Maria G. Perez, Melissa Jones, Alicia Renfro, Elsa
Sandoval, Elizabeth Nan-Bowman, May Fulton, Kami Tipay, and Flo-
rinda Sjostedt. The parties also agreed to open and count the chal-
lenged ballots cast by Stella Lopez, Annmarie Scheve, Judy Fauria, and
Keenan Rodarte. The Regional Director shall include the ballots of the
latter four employees in the final tally of ballots, if this has not already
been accomplished.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 130
time, date, and place to be announced, open and count
their ballots and prepare and serve on the parties a re-
vised tally of ballots. Thereafter, the Regional Director
shall issue the appropriate certification.
ORDER
IT IS ORDERED that the proceeding is remanded to the
Regional Director for Region 31 for further processing
consistent herewith.