Monmouth Medical Center

National Labor Relations Board - Board Decisions

Jan 22, 1980

247 N.L.R.B. 508 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Monmouth Medical Center and Hospital Profession-
als and Allied Employees of New Jersey. Case 22-
CA-8222
January 22, 1980
SUPPLEMENTAL DECISION, ORDER, AND
DIRECTION OF SECOND ELECTION
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
On June 15, 1978, the National Labor Relations
Board issued a Decision and Order in the above-
entitled proceeding,' finding that the Respondent,
Monmouth Medical Center, had violated Section
8(a)(5) and (1) of the National Labor Relations Act, as
amended, by refusing to bargain, upon request, with
the Union (also the Charging Party herein), which was
certified by the Board in Case 22-RC-7125 on
January 20, 1978,2 and ordering it to bargain with the
Union. Thereafter, the Respondent filed a petition for
review of the Board's June 15, 1978, Order before the
United States Court of Appeals for the Third Circuit,
and the Board filed a cross-petition seeking enforce-
ment of its Order. On August 20, 1979, the court
issued its decision3 granting the Respondent's petition
for review, denying the Board's cross-application for
enforcement, and remanding the case to the Board so
that the disputed election could be set aside. The court
held that campaign literature distributed by the Union
misrepresented to the unit employees the Board's role
in the representation process by portraying it as
favoring the Union, 4 and thereby compromised the
statutory neutrality of the Board, invalidating the
results of the election. Relying primarily on GAF
Corporation., 234 NLRB 1209 (1978), the court
concluded that, in view of the fact that the Board's
certification decision was "inconsistent with case law
and with previous decisions of the Board itself and
amounted to an abuse of discretion," the Union was
not properly certified, and therefore the Respondent
did not violate the Act by refusing to bargain with the
Union. Accordingly, as stated above, the court denied
enforcement of the Board's 8(a)(5) bargaining order
' 236 NLRB 960.
234 NLRB 328. The employees in the stipulated unit were divided into
two voting groups. The instant case involves only those employees in Voting
Group A, consisting of all full-time and regular part-time registered nurses
and graduate nurses. In Voting Group B. which included all full-time and
regular part-time technical employees, a majority of the valid ballots were not
cast for the Petitioner, and a Certification of Results was issued by the
Regional Director on July I, 1977.
'Monmouth Medical Center v. N.L.R.B., 604 F.2d 820.
' The six pieces of literature in question involved the following: (I) a Board
pamphlet describing the election process, including a handwritten comment,
"Vote Yes June 16 MMC auditorium"; (2) a campaign leaflet informing the
247 NLRB No. 75
and remanded this proceeding to the Board to set
aside the disputed election.
On October 1, 1979, the Board notified the parties
that it would reconsider the case in conformity with
the court's remand and invited the parties to file
statements of position. Thereafter, the Respondent
and the Charging Party both filed such statements.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has reviewed the entire record, including
the Respondent's and the Charging Party's statements
of position, in light of the court's decision. The Board
has decided to accept the court's decision as the law of
this case. Accordingly, the Board now regards the sole
issue for determination before it to be whether to
direct a second election or to dismiss the petition.
The critical fact relevant to this inquiry which has
been raised in the parties' statements of position is that
subsequent to the original election in the instant case,
and also after the court's remand decision herein, the
Charging Party voted to affiliate with the American
Federation of Teachers, AFL-CIO (hereinafter called
the AFT). The Respondent therefore contends that
the original showing of interest supporting the petition
in Case 22-RC-7125 is no longer valid, as the prior
authorization cards designated only the Charging
Party as the employees' representative. As these cards
do not indicate the employees' desires to be represent-
ed by the AFT, the Respondent claims that the
petition should be dismissed. In support of its position,
the Respondent cites Mohawk Business Machines
Corporation, 118 NLRB 168 (1957). The Charging
Party, on the other hand, asserts that, as there has
been no material change in the structure of the Union,
the original showing of interest should be upheld and a
second election directed.
In Mohawk, supra, the case cited by Respondent,
the Board held that authorization cards supporting a
petition filed by the petitioner when it was affiliated
with the United Electrical, Radio and Machine
Workers of America, UE, were "not indicative of . . .
[the unit] employees' wishes as to representation by
the Petitioner as an affiliate of IUE [International
unit employees that the Board's employees are unionized stating, "[W]hen the
experts have chosen this particular method, can it really be the wrong one?";
and (3) four campaign letters asserting (a) in reference to an upcoming unfair
labor practice hearing that the "NLRB conducts such hearings only after
investigation and rendering merit to such charges," (b) that those who commit
unfair labor practices "can be fined up to $5,000.00 and possibly imprisoned
for up to one year, or both," and (c) and (d) that the employees should resolve
any questions about campaign propaganda by calling the Region's Officer-of-
the-Day for the answers. The court found that the Board had committed
reversible error in finding the literature described above in (2) and (3) not to
be objectionable, and therefore found it unnecessary to decide the issues
regarding the pamphlet described above in ().
508
MONMOUTH MEDICAL CENTER
Union of Electrical, Radio, and Machine Workers,
AFL-CIO]."' Therefore, the Board granted additional
time for a new showing of interest to be presented
because of the change in affiliation and, if such a
showing was not forthcoming, directed that the
petition be dismissed.
The holding in Mohawk has, however, been distin-
guished by the Board in later cases because of the
special fact situation therein involving a schism which
led to confusion among the employees as to the
identity of the organization designated to represent
them.6 Similar to the situations in these later cases,
there appears to be no evidence herein that a schism
occurred or that the employees would be confused
about who is their collective-bargaining representative.
In fact, by placing the Union on the ballot in its
affiliated form, any such confusion would be eliminat-
ed. Further, the employees involved in the instant case
have indicated through the original showing of interest
an underlying intent to be represented by a union, or,
at the very least, a desire of being placed in a position
to cast a ballot.' Therefore, dismissing the petition at
this point would unnecessarily defeat this expression
of intent. Moreover, by having the election, all of the
unit employees will be given the opportunity to vote
for or against the Charging Party's action in affiliating
with the AFT at the same time that they are voting on
the question of whether or not they want the Union in
its present affiliated form to represent them.8 Thus, the
employees' individual rights will be protected by
proceeding to an election at this time. Accordingly, we
'118 NLRBat 169.
Louisiana Creamery. Inc.. 120 NLRB 170 (1958): New Hotel Monteleone.
127 NLRB 1092 (1960). See also Harold's Club. Inc.. 194 NLRB 13 (1971).
find that a new showing of interest is not required and
will allow the petition to stand. We shall, however,
place the full name of the Union, including its
affiliation with the AFT, on the ballot. Further, we
shall dismiss the complaint in Case 22-CA-8222,
reopen Case 22-RC-7125, set aside the election held
on June 16, 1977, in Voting Group A, vacate the
Certification of Representative, and direct a second
election.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint in
Case 22-CA-8222 be, and it hereby is, dismissed in its
entirety.
IT IS FURTHER ORDERED that Case 22-RC-7125
be, and it hereby is, reopened, that the election in said
case held on June 16, 1977, in Voting Group A be, and
it hereby is, set aside; and that the Certification of
Representative issued on January 20, 1978, be, and it
hereby is, vacated.
IT IS FURTHER ORDERED that Case 22-RC-7125
be, and it hereby is, remanded to the Regional
Director for Region 22 for the purpose of conducting
a second election pursuant to the direction set forth
below.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
'See General Dynamics Corporation.. Con vair Aerospace Division. San Diego
Operations, 213 NLRB 851 (1974).
' See 213 NLRB at 854.
509