Northwest Community Hospital

National Labor Relations Board - Board Decisions

May 31, 2000

331 N.L.R.B. 307 (N.L.R.B. 2000)

NORTHWEST COMMUNITY HOSPITAL 307
Northwest Community Hospital and International
Union of Operating Engineers, Local 399, Peti-
tioner. Case 13–RC–20142
May 31, 2000
DECISION AND CERTIFICATION OF
RESULTS OF ELECTION
BY CHAIRMAN TRUESDALE AND MEMBERS
HURTGEN AND BRAME
The National Labor Relations Board, by a three-
member panel, has considered the determinative chal-
lenges in an election held on June 25, 1999, and the hear-
ing officer’s report recommending disposition of them.
The election was conducted pursuant to a Stipulated
Election Agreement. The tally of ballots shows 12 for
and 12 against the Petitioner, with 2 challenged ballots, a
number sufficient to affect the results.
The Board has reviewed the record in light of the ex-
ceptions and briefs, has adopted the hearing officer’s
findings and recommendations only to the extent consis-
tent with this Decision, and finds that a certification of
results of election should be issued.
The parties agreed to a stipulated bargaining unit1
which was different from the unit sought in the Union’s
petition.2 Specifically, although the Union petitioned for
“hourly on-call skilled maintenance employees,” this
classification of employees is not referenced in the Stipu-
lated Election Agreement approved by the Regional Di-
rector. At the election, the Board agent challenged the
ballot of on-call engineer Donald Jarnow, whose name
did not appear on the Excelsior list. The Employer chal-
lenged the ballot of on-call maintenance employee John
Colles.3
The hearing officer recommended that the challenges
be overruled. Finding the stipulation ambiguous, the
hearing officer considered extrinsic evidence, which he
found not dispositive as to the parties’ intent. Applying
community-of-interest principles, the hearing officer
recommended that Jarnow and Colles be included in the
bargaining unit.
The Employer excepts to the hearing officer’s recom-
mendation that the challenges be overruled. It argues
that, on its face, the stipulation plainly and unambigu-
ously excludes on-call employees. Alternatively, the
Employer contends that if extrinsic evidence is exam-
ined, there is no objective manifestation of the parties’
intent to include on-call employees. Lastly, the Em-
ployer argues that the hearing officer should not have
applied community-of-interest principles, but, assuming
the analysis proceeds to that point, Jarnow should not be
included in the unit under that test.

1 The stipulated unit included “all full-time and regular part-time
operating engineers, maintenance mechanics, maintenance workers,
electricians and bio-medical technicians employed by the Employer in
its Facilities Support Department at its facility currently located at 800
Central, Arlington Heights, IL 60005; but excluding all guards and
supervisors as defined in the Act.”
2 The Union’s petition sought “all full-time, part-time, hourly on-
call skilled maintenance employees in the Maintenance Department.”
3 The Employer contends that Colles’ name was inadvertently
placed on the Excelsior list.
The Petitioner contends that the hearing officer’s rec-
ommended overruling of the challenges was correct be-
cause the stipulation clearly and unambiguously includes
on-call employees. Alternatively, if extrinsic evidence is
considered, the Petitioner asserts that the parties’ stipula-
tion manifests an intent to include on-call employees.
Finally, the Petitioner argues that if community-of-
interest principles are applied, the hearing officer was
correct in concluding that Jarnow’s and Colles’ job du-
ties and hours are sufficiently similar to those of other
bargaining unit employees that they should be included
in the unit.
We find merit to the Employer’s contention that hourly
on-call employees should be excluded from the stipu-
lated bargaining unit for the reasons set forth below. The
Board has a longstanding policy of permitting parties to
enter into stipulations regarding appropriate bargaining
units. Gala Food Processing, 310 NLRB 1193 (1993).
The Board’s function is to ascertain the intent of the par-
ties and then to determine whether this intent is contrary
to any statutory provisions or established Board policy.
Tribune Co., 190 NLRB 398 (1971). If the objective
intent of the parties is expressed in clear and unambigu-
ous terms in the stipulation, then the Board will hold the
parties to their agreement. In order to determine whether
the stipulation is clear or ambiguous, the Board will
compare the express language of the stipulated bargain-
ing unit with the disputed classifications, finding a clear
intent to include those classifications matching the de-
scription and a clear intent to exclude those classifica-
tions not matching the stipulated unit description. Via-
com Cablevision, 268 NLRB 633 (1984). Where the
stipulation is unclear, resort to extrinsic evidence is ap-
propriate to determine the parties’ intent regarding the
disputed classification. See Gala Foods, supra. It is
only when the parties’ intent remains unclear that reli-
ance may be placed upon community-of-interest princi-
ples.
In National Public Radio, 328 NLRB 75 (1999), the
parties stipulated to include all regular full-time and
regular part-time employees, but to exclude all other em-
ployees. Because the employer maintained distinct cate-
gories of regular and temporary employees, the Board
held there was no ambiguity in the parties’ stipulation.
Based on the plain language of the stipulation, “the par-
ties must have intended the exclusion of temporary [em-
ployees].” Id. Because the parties’ stipulation did not
contravene Board policy or established precedent, the
Board sustained the challenges to the ballots cast by
temporary employees.
Similarly, in Hotel Inter-Continental Maui, 237 NLRB
906 (1978), the employer maintained two categories of
331 NLRB No. 45
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 308
part-time employees: regular part-time employees and
on-call employees. The parties’ stipulation expressly
limited the bargaining unit to all “full-time” and “regular
part-time” employees. The Board concluded, based on
the unambiguous language of the stipulation, that the
parties intended to exclude on-call employees. Because
the unit did not contravene any statutory provisions or
Board policy, the Board found that the on-call employees
were properly excluded from the Excelsior list.4
In the instant case, the Employer maintains three dis-
tinct categories of employees: full-time, part-time, and
hourly on-call employees. Part-time employees work a
set schedule, while hourly on-call employees fill in for
employees who are absent for various reasons. There is
evidence that employees can transfer from an hourly on-
call position, without benefits, to a part-time position,
with benefits. The company’s business records also il-
lustrate the distinction between regular part-time and
hourly on-call employees.
In light of evidence of the distinct nature of part-time
employment versus hourly on-call employment, where
the Petitioner had specific knowledge of this distinction,
some significance must be attributed to the Petitioner’s
agreement to the stipulation to include only “regular full-
time and regular part-time employees.” In this regard,
we note particularly that the Petitioner originally ex-
pressly included “on-call . . . employees,” but abandoned
this unit description in the agreed-upon stipulated unit.
Although the stipulation did not exclude “all other em-
ployees,” we find that the parties intended to include

4 Excelsior Underwear Inc., 156 NLRB 1236 (1966).
only full-time and part-time employees and to exclude
hourly on-call employees from the bargaining unit. The
stipulated agreement clearly and unambiguously reflects
the intent of the parties.5 The parties’ stipulation does
not contravene any provision of the Act or any Board
policy. Thus, we shall enforce it and need not consider
extrinsic evidence or community-of-interest arguments.
Accordingly, we conclude that the parties intended and
stipulated to exclude hourly on-call employees Jarnow
and Colles from the bargaining unit. We therefore sus-
tain the challenges to the ballots of hourly on-call em-
ployees Jarnow and Colles. As the tally of ballots shows
that Petitioner failed to receive a majority of votes cast,
we shall certify the results of the election.
IT IS CERTIFIED that a majority of the valid ballots
have not been cast for International Union of Operating
Engineers, Local 399, and that it is not the exclusive rep-
resentative of these bargaining unit employees.
5 In our view, National Public Radio, supra, is particularly apposite.
Here, as there, the parties’ stipulation includes only regular full-time
and regular part-time employees. The Petitioner’s knowledge of the
Employer’s well-established distinction between part-time and hourly
on-call employees vitiates any significance potentially attributable to
the omission, from the instant stipulation, of language explicitly ex-
cluding all other employees, and underscores the unambiguous nature
of the stipulation at issue.
Member Hurtgen does not necessarily agree that the stipulation, on
its face, clearly and unambiguously excludes on-call employees. It
does not mention these employees, one way or the other, and it does not
exclude “all other employees.” However, he notes that the original
petition expressly included on-call employees, and that this group was
later omitted from the stipulation. Thus, the stipulation, considered in
this light, clearly reflects an intention to exclude on-call employees.