Parker Jewish Geriatric Institute

National Labor Relations Board - Board Decisions

Aug 20, 1991

304 N.L.R.B. 153 (N.L.R.B. 1991)

153
304 NLRB No. 29
PARKER JEWISH GERIATRIC INSTITUTE
The Parker Jewish Geriatric Institute and Local
1199, Drug, Hospital and Health Care Employ-
ees Union, RWDSU, AFL–CIO. Case 29–UC–
370
August 20, 1991
DECISION ON REVIEW
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND OVIATT
On February 20, 1990, the Regional Director for Re-
gion 29 issued a decision and order dismissing the unit
clarification petition in this proceeding. He found that
the Employer had recognized that the employees in
dispute, security guards, were members of the overall
bargaining unit, and had voluntarily agreed to their in-
clusion in the unit covered by the current collective-
bargaining agreement. Relying on Wallace-Murray
Corp., 192 NLRB 1090 (1971), he thus found that the
petition was untimely filed. In accordance with Section
102.67 of the National Labor Relations Board Rules
and Regulations, The Parker Jewish Geriatric Institute,
the Employer-Petitioner, filed a timely request for re-
view of the Regional Director’s decision on the
grounds that he departed from established Board pol-
icy. The Board granted review on August 31, 1990.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and record in
light of the request for review and has decided to re-
verse the Regional Director’s findings and conclusions,
to reinstate the unit clarification petition, and to ex-
clude the security guards from the unit.
The Employer is a nonprofit corporation operating a
skilled nursing home. Since at least 1974, it has had
a collective-bargaining relationship with the Union and
has entered into successive collective-bargaining agree-
ments. Until June 1984, the Employer bargained with
the Union through the League of Voluntary Hospitals
of New York (League), a multiemployer association.
Since 1984 it has bargained through another employer
association, the Association of Voluntary Nursing
Homes of New York (Association).
The July 1974 through June 1976 agreement did not
include a description of the bargaining unit, but a relat-
ed signed stipulation referred to uniform minimum
rates for the positions of security guard and security
sergeant as of July 1, 1974, and July 1, 1975. The par-
ties stipulated that there was also a July 1975 through
June 1978 agreement which is not in evidence. A July
1978 through June 1980 agreement contained a stipula-
tion listing ‘‘guards’’ as included in the covered unit.
The July 1, 1980, through June 30, 1982 contract
negotiated between the League and the Union covered
a unit which did not include security guards. A sepa-
rate agreement was negotiated between the Employer
and the Union covering only the security guards. This
agreement was identical in its terms to the League
agreement except for its effective dates, from Septem-
ber 1, 1980, through August 31, 1982. Again in 1982
the Employer and the Union were parties to the
League agreement, and also maintained a separate
agreement covering security guards, differing only in
the employees covered and the effective dates from the
League agreement. Following the September 30, 1984
expiration of the guards’ agreement, the Employer and
the Union negotiated no new agreements covering the
guards.
Since 1984, the Employer and the Union have been
parties to agreements negotiated through the Associa-
tion. These agreements do not set out the unit covered,
although the 1986 to 1989 agreement identifies uni-
form job classifications, and does not mention guards.
In the current contract negotiated on October 4, 1989,
and effective July 1, 1989, to June 30, 1992, there is
no reference to the unit or to job classifications.
On October 12, 1989, in a letter signed by its presi-
dent, Dennis Rivera, the Union wrote to the Employer
as follows:
This is to advise you that the Security Guard
Contract between your institution and Local 1199,
Drug, Hospital and Health Care Employees
Union, RWDSU, AFL–CIO expires on September
30, 1989.
Since it is our intention to negotiate a new
agreement, we request that your representative get
in touch with our office to arrange a mutually ac-
ceptable date to commence negotiations.
On November 14, 1989, the Union sent to the Em-
ployer by facsimile telecommunication a form of
Memorandum of Agreement, described on the cover
page as a ‘‘League Me Too Agreement with Attach-
ment’’ (‘‘Me Too’’ agreement), which would have
continued the terms and conditions applicable to secu-
rity guards (emphasis added).
On November 27, 1989, the Employer filed the peti-
tion in this proceeding. It wishes to clarify the overall
unit and exclude the security guards.
In dismissing the petition the Regional Director did
not mention the events of October and November 1989
that evidence the Union’s attempt to negotiate a new
agreement limited to the security guards. Rather, he
found that the pre-1980 contracts had included the
guards as part of the overall unit; that there had been
no negotiated contract covering only the guards since
1984; and that the guards have continuously through
the present time received the same terms and condi-
tions of employment as the other employees
undisputedly in the unit, had union dues deducted and
pension and welfare payments made to the Union on
their behalf, and had their grievances processed by the
154 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 See, e.g., Supreme Sugar Co., 258 NLRB 243 (1981). Also St. Francis
Hospital, 282 NLRB 950 (1987). 2 Peninsula Hospital Center, 219 NLRB 139 (1975).
Union. He found that this evidence showed that the
Employer recognized the guards as members of the
overall bargaining unit and, in effect, voluntarily had
agreed to their inclusion in the unit covered by the cur-
rent (1989–1992) bargaining agreement. He thus found
that under Wallace-Murray, supra, the petition was un-
timely.
After reviewing all the evidence, we agree with the
Regional Director that the employees in question are
guards within the meaning of Section 9(b)(3) of the
Act. We disagree, however, with the Regional Direc-
tor’s findings that the Employer has recognized that
the guards are members of the overall unit and has
voluntarily agreed to their inclusion in the unit covered
by the current contract. We also disagree that Wallace-
Murray, supra, is dispositive of this case.
In Wallace-Murray, the Board found a unit clarifica-
tion petition untimely when filed during the term of a
contract which clearly defined the unit and specifically
included the employees in dispute (guards). We have
continued to adhere to the policy set out in Wallace-
Murray, while recognizing exceptions in particular
cases.1 The facts set out above, however, show that
this case is distinguishable from Wallace-Murray and
its progeny.
As noted, only the pre-1980 agreements specifically
mentioned the guards as part of the covered unit. From
1980 to 1984 the parties negotiated separate agree-
ments (although identical in most respects to the con-
tract covering the larger unit) for the guards. Since
1984, the contracts entered into between the Associa-
tion (representing the Employer) and the Union make
no mention of the guards.
The fact that the guards continue to enjoy the same
terms and conditions of employment as the other em-
ployees does not conclusively demonstrate that the par-
ties meant to include them in the overall unit. At least
to an equal degree, it shows that the parties intended
to continue the terms and conditions of their separate
1980–1984 agreements, which mirrored the terms of
the contract covering the other employees. Further, and
more indicative of the understanding of the parties, the
October request from the Union to bargain was for a
new agreement for the guards alone. This request was
dated 8 days after the Union and the Association had
entered into an agreement which covered the employ-
ees not in dispute. Also, the proffered agreement sent
to the Employer by the Union incorporated the con-
tract between the League and the Union, not the Asso-
ciation contract.
Based on all the foregoing, we find that the evi-
dence does not show that the parties recognized that
the guards are part of the overall unit or that they
agreed to the guards’ inclusion in the unit covered by
the current agreement between the Union and the As-
sociation. As the parties have not agreed to the inclu-
sion of the guards under the current agreement, Wal-
lace-Murray does not apply, and the petition was not
untimely. Accordingly, we will reinstate the petition
and clarify the overall unit to exclude the guards.2
ORDER
It is ordered that the unit of employees employed by
The Parker Jewish Geriatric Institute and represented
by Local 1199, Drug, Hospital and Health Care Em-
ployees Union, RWDSU, AFL–CIO, who are covered
under the July 1, 1989–June 30, 1992 contract between
the Union and the Association of Voluntary Nursing
Homes of New York is clarified to exclude the job
classification of guards as defined by the Act.