Presbyteriam Hospital in the City of New York

National Labor Relations Board - Board Decisions

Apr 19, 1979

241 N.L.R.B. 996 (N.L.R.B. 1979)

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996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Presbyterian Hospital in the City of New York
andSpecial and Superior Officers Benevolent Asso-
ciation. Case 2-CA-15226
April 19, 1979
DECISION AND ORDER
Upon a charge duly filed on October 31, 1977, by
Special and Superior Officers Benevolent Association,
herein called the Union, the General Counsel for the
National Labor Relations Board, by the Regional Di-
rector for Region 2, on December 14, 1977, issued
and served on the parties a complaint and notice of
hearing. substance, the complaint alleges that Re-
spondent violated Section and (1) of the Act
by refusing to remit to the Union fees and dues mon-
eys deducted from its employees pay as required by
its collective-bargaining agreement with the Union
without notice to the Union, without affording the
Union an opportunity to bargain with respect to such
conduct, and without consent of the Union. On De-
cember 28, 1977, Respondent filed an answer admit-
ting in part, and denying in part, the allegations in the
complaint.
Thereafter, a hearing was conducted on April 4,
1978, before Administrative Law Judge Richard D.
Taplitz. At the hearing all parties entered into a stipu-
lation in which they petitioned the Board to approve
the transfer of this proceeding to the Board and
waived the making of findings of fact and conclusions
of law by an Administrative Law Judge and the issu-
ance of an Administrative Law Judge's Decision. The
parties further stipulated that the entire record of this
proceeding shall consist of the charge, complaint, an-
swer, the stipulation with exhibits attached thereto,
and the transcript of the proceeding. Upon conclu-
sion of the hearing, counsel for the General Counsel,
without objection of the other parties, moved that the
proceeding be transferred directly to the Board in
Washington. D.C.. for decision. Thereafter, the Ad-
ministrative Law Judge granted counsel for General
Counsel's motion. On August 2, 1978, the Board ap-
proved the stipulation of the parties and ordered the
case transferred to the Board, advising the parties
that it would consider the briefs which they had pre-
viously submitted to the Board.
Upon the basis of the stipulation, the briefs, and
the entire record in this proceeding, the National La-
bor Relations Board makes the following:
I. THE BUSINESS O F RESPONDENT
Respondent, a New York corporation with its prin-
cipal and place of business in the city of New
York, is a nonprofit hospital engaged in providing
inpatient and outpatient medical and health care ser-
vices. During the calendar year ending December 31,
1976, Respondent derived gross revenues in excess of
$60 million and purchased goods and supplies valued
in excess of $50,000 which were shipped to it directly
from firms located outside the State of New York.
The parties stipulated, and we find, that Respon-
dent is, and has been at all times material herein, an
employer engaged in commerce within the meaning
of Section and (7) of the Act. and that it will
effectuate the policies of the Act to assert jurisdiction
herein.
THE LABOR ORGANIZATION INVOLVED
The parties stipulated, and we find, that the Union
is a labor organization within the meaning of Section
of the Act.
THE ALLEGED UNFAIR LABOR PRACTICES
A. The
In 1974, the Union was certified by the National
Labor Relations Board as the exclusive representative
of Respondent's protective hospital security officers in
a unit appropriate for the purposes of collective bar-
gaining with respect to wages, hours of employment,
and other terms and conditions of employment.' The
Union and Respondent were parties to successive col-
lective-bargaining agreements effective from Novem-
ber 8, 1974. until August 3 1976, and from Septem-
ber 1, 1976, until August 31, 1978.
baigaining agreements contained valid a
rity provision2 and a valid dues-checkoff
That was:
All full-time and regular part-time protective hospital security officers
employed by Respondent at its West 168th Street, New York, New
York. facility. excluding the security department director. investigators.
assistant supervisors, sergeants, volunteers, temporary em-
ployees. all other employees, and all supervisors as defined in Section
of the Act.
I and of art. of the collective-bargaining agreements state
as follows:
I. All present covered by this Agreement who, on the date
of execution of this Agreement. are members of the Association in good
standing shall. during the term of this Agreement, as a condition of
continued employment. maintain their membership in the Association
in good standing by tendering the periodic dues uniformly required as a
condition of retaining membership in the Association. All present em-
ployees covered by this Agreement who are not members of the Associ-
ation as of the date of execution of this Agreement shall become mem-
bers of the Association within thirty (30) days after the execution date
of this Agreemenl and shall thereafter. as a condition of continued em-
ployment. maintain their membership in the Association in good stand-
ing during the term of this by tendering the initiation fees
and the periodic dues required as a condition of acquiring
and retaining membership in the Association.
2. All new employees covered by this Agreement hired after the date
of execution of this Agreement shall. as a condition of continued
HOSPII'AL CITY
the
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997 PRESBYTERIAN IN T H E O F N E W YORK
On March 3, 1977, an election was conducted in
Case 2-RD-883 on the question of whether the em-
ployees in the appropriate unit wished to be repre-
sented by Union for the purposes of collective
bargaining. A majority of the employees who voted in
that election voted not to have the Union represent
them any longer as their exclusive representative for
the purposes of collective bargaining.- hereafter, the
Union filed timely objections to conduct affecting the
results of the election. On May 1977, the Acting
Regional Director for Region 2 issued his supplemen-
tal decision and certification of results in which the
Union was decertified by the Board as the exclusive
representative of the employees in the appropriate
unit.
During the period of March I through May
1977. Respondent deducted dues for the months of
March, April, and May 1977 from the pay of certain
unit However, Respondent did not remit
the dues moneys collected to the Union, and the
Union did not consent to Respondent's failure to re-
mit such dues moneys deducted from the employees
during that period.
B. Additional Facts
At the hearing Respondent's labor relations spe-
cialist, Robert testified without contradiction as
follows: Sometime during March 1977, after the elec-
tion, several employees approached him and said that
since the Union no longer represented them they
wanted to have the dues moneys reimbursed to them.
Without notifying the Union, Respondent made the
decision not to remit the moneys to the Union. Re-
spondent has no dues authorization revocations from
the period of December 9, 1976, to May 1977, in its
files. Respondent has not remitted the moneys to the
become members of the Association not later than the
eth day following the beginning of such employment and shall
thereafter during the of this Agreement. as a condition of
ued employment, their membership in the Association in good
standing by tendering the initiation fees and the uniformly
required as a condition of acquiring and membership in the
Association.
I of an. V of the collective-bargaining agreements states as follows:
I . Upon receipt of a written authorization from an employee in the
hereto annexed as Exhibit A. the shall. pursuant to such
authorization, deduct from the due said employee each month
and remit to the Association, regular monthly fixed by the
The Hospital shall give the Association a cheek in the amount
of the deduction made once each with a list of the
names and Security numbers of the employees from whose
such deductions were Such deductions shall be rnade only from
the wages due the employee on the pay day of each month provided
that a proper authorization is on file with the Hospital. Such deduction
shall be in the amount certified in writing by the Association to
the Hospital as the amount of the initiation fee and the current monthly
owed by the employee.

'The parties included in their stipulation lists
forth names of
employees for whom Respondent deducted dues moneys for the months of
March. April. and 1977 and the amounts of such deductions.
employees and does not claim any interest in the dues
moneys collected.
Union Office Manager who is responsible
for administering the collective-bargaining agreement
between the Union and Respondent, testified without
contradiction that the Union did not receive any dues
authorization revocations from the guards employed
by Respondent during the period December 9, 1976,
through May 19, 1977.
C. Contentions of the Parties
The General Counsel contends that an employer's
unilateral repudiation of a dues-checkoff provision of
a collective-bargaining agreement violates Section
and (1) of the Act. Citing, inter alia, W. P.
Ihrie Sons, Division of Sunshine Biscuits, Inc., 165
N LRB 167 9673, and Albert Van Luit Company,
234 NLRB 1087 (1978). the General Counsel asserts
that an employer is required to deduct and remit dues
of the unit employees through the date of certification
of the results of the election and not merely through
the date of the election. General Counsel also argues
that while W. P. Ihrie was a deauthorization case, the
Board in that case and in Albert Van Luit Company
specifically held that the foregoing rule applies in
decertification cases.
Respondent claims no beneficial interest in the
dues moneys collected from March 1 through May
19, 1977. It asserts that, faced with competing claims
from the employees and the Union for the same mon-
eys, it has not been able to determine, in good faith,
to whom the moneys should be paid and has been
unable to remit the moneys to either the employees or
the Union for fear of liability should it erroneously
disburse the money. Respondent acknowledges the
general rule that in deauthorization cases
provisions remain in effect certification of
results of the election, not merely until the election,
and that an affirmative deauthorization vote permits
employees to revoke their dues-checkoff authoriza-
tions but does not automatically cancel such authori-
zations. However, Respondent contends that, con-
trary to the position of the General Counsel, W. P.
Ihrie, and Albert Van Luit Company do not extend
the principles applicable in deauthorization cases to
decertification cases. Respondent requests the Board
to determine the disposition of the moneys withheld
without finding that any unfair labor practices have
been committed and without imposing any interest
on the moneys withheld.
D. Discussion and Conclusions
We agree with the General Counsel that Respon-
dent violated Section and (I) of the Act by
&
werito
collective-
B ~ a r d . ~
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B(aX5)
J ' 1307.
Lyons Im., 218 Board
duuthorization require
rmployeu feer duca. despite
were results
certified. exception
rule results are certification
here. instnnt case, nor does
appear from that employeen R e
spondent were hired aher Accord-
d u a for employes, pursuant their
authorizntions, merely return for their repreamtation
See Albert & Conpaw, sqra.
dues-
8(aX5) Act.8
2(6)
2(5)
9(a)
prgtective
supervisors,
8 e.g., Shen-Mar faod Products, Inc., 221 Terri-
Products, Inc., UX)
conten& that here remit
for a h dcccrtifica-
tion seemingly inwnnistent Madine
Conpaw, 186 Madine, Bonrd held
ployer Scc. 8(a)(2) wllcctive-bargaining
union-security provision
duer-eheckolfprovision,
Bond further required employer reimburse employ-
as pursuant wllective-bargaining agreement
a h date however, Board
violation relied employer
neognize incumbmt
h brm certijhfat the collmive-bargaining repmenIative."
Further, Bond refmed
bnrgnin na;cwrily arose
rival therefore appears
Board's requiring mmburrment
inadvertent.
Modine our hmby overruled.
998 DECISIONS O F NATIONAL LABOR RELATIONS BOARD
refusing to remit to the Union the dues money de-
ducted from the employees' pay during the period of
March 1 through May 19, 1977, in derogation of the
valid dues-checkoff provision in its collective-bargain-
ing agreement with the Union. In so doing, we find,
as urged by the General Counsel, that Respondent
was obligated to deduct dues and to remit them to the
Union through the date of the certification of results
of the election and not merely through the date of the
election. Thus, as the Board stated in Trico Products
Corporation:'
The well-established rule concerning election re-
sults is that they are not effective until certifica-
tion. [Citing, inter alia, Albert Van Luit Com-
pany,' supra]. To hold otherwise is to invite
instability during the transition period when the
employees' choice of representative is in doubt.
Election results are not alwavs determinative. If
the status of the parties change immedi-
ately upon the tally of ballots the possibility of
sustained objections and rerun elections might
lead to a number of changes in the
bargaining relationship before a representative is
finally certified. The general rule that the elec-
tion results are not effective until certification
lends certainty and stability to the process since
the parties may safely maintain the status quo
until the representation question is conclusively
resolved by the
In Trico Products, the Board held, inter alia, that the
incumbent union did not violate Section
and (2) of the Act by attempting to enforce the
security clause of its contract with the employer be-
yond the date of the incumbent union's loss in an
election involving a rival union. Although the instant
case, unlike Trico Products, involves Section of
the Act and a decertification election, the underlying
principles and the basic considerations applied in that
former case also are applicable here. We therefore
shall adhere in the instant case to the general rule that
election results are not effective until certification?
Thus, the fact that the Union did not receive a ma-
jority of the votes cast in the decertification election
on March 3, 1977, did not as of that date alter the
238 NLRB 1306 (1978).
Id, at

'We note that in
Apparel, NLRB 1172 (1975). the
decided that a union which had l a t a vote wuld not
new to join it and pay initiation and the fact
that objections pending and the of the election had not yet been
Lyons Apparel, however, constitutes an isolated to the
general that election not effective until and is
inapplicable Thus, in the no party contends, it
the evidence, any of the on whose behalf
deducted dues the date of the election.
ingly, the payment of these made to
was in continued by
the Union. Van Luit
Union's status as collective-bargaining representative
of Respondent's employees. Rather, until May 19,
1977, the date on which the issuance of the certifica-
tion of results with finality the question concerning
representation, the Union remained the statutory rep-
resentative of the employees, and the collective-bar-
gaining agreement between the parties remained ef-
fective. Therefore, until May 19, 1977, Respondent
was obligated to refrain from making unilateral
changes in the terms of the collective-bargaining
agreement. Accordingly, we find that Respondent, by
failing to remit to the Union dues moneys it withheld
from employees' pay pursuant to the valid
checkoff provision of the collective-bargaining agree-
ment, without notice to or bargaining with the Union,
and without its consent, engaged in unilateral con-
duct in violation of Section and (1) of the
1. The Presbyterian Hospital in the City of New
York is an employer engaged in commerce within the
meaning of Section and (7) of the Act.
2. Special and Superior Officers Benevolent Asso-
ciation is a labor organization within the meaning of
Section of the Act.
3. At all times relevant herein, until May 19, 1977,
Special and Superior Officers Benevolent Association
was the exclusive representative of all the employees
in the appropriate unit set forth below for purposes of
collective bargaining with respect to wages, rates of
pay, hours of employment, and other terms and con-
ditions of employment within the meaning of Section
of the Act:
All full-time and regular part-time
hospital security officers employed by Respon-
dent at its West 168th Street, New York, facility,
excluding the security department director, in-
vestigators, assistant sergeants,
chauffeurs, volunteers, temporary employees,
S a , NLRB 1329 (1976);
flex NLRB 3 (1972).
Respondent a finding that it is obligated to to the
Union dues moneys withheld the period the date of the
election would be with Manufacturing
NLRB 629 (1970). In the that an em-
violated by giving effect to a agree-
ment with the incumbmt union, which included a
and a beyond the date of an election which the rival
union won. The the to
for moneys withheld to the on
and the of the election. We note, that the in
finding the therein, on the fact that the had contin-
ued to the union "even though the [rival union] won the
election and [sic]
(Emphasis supplied.) the to the employer's duty to
exclusively with the rival union-a duty which
only upon the certification of the union. It that the
finding of the violation and its as of the
date of the election in that c a r was In any event, to the extent
that is inconsistent with decision herein it is
2(11)
duescheckoff
collectivabargaining
8(ax5)
2(6)
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Cotpora-
tion, (1977)?
lqc)
Presbyterian
1.
dues-checkoff collective-
(b) co-
* Aa indiuccd above, Rapondent rcquatc the determine
diepaition moneys withheld findins
practice hu been ammittcd impains interat mon-
eya withheld. 'lh.1 Rclpondent'a unduft bem due ita i ~ b i l -
ity, good fiith, determine w u mnit
diminiaha u h d d nature ita doa
w m n t fiudin$ t h t Funher-
m m , we perceive unwd circumst.ncu h m wamntiq dcpu~ure
curtomuy imposing interet monetary a w d
cusr kind. Rapondent', rcquau.
Contrary paition Gencnl Counsel, &all
interat rbs dua ILt hprcent nre.
Rather. order interat anid money8 "adjuncd
prim intern1 nte" net Flori& S r d Corpwarim, WIU
guar-
dues-
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event that lh i~