Santa Rosa Memorial Hospital

National Labor Relations Board - Board Decisions

Oct 31, 1984

272 N.L.R.B. 1004 (N.L.R.B. 1984)

1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Santa Rosa Memorial Hospital and Hospital and In
stitutional Workers' Union, Local 250, Service
Employees International Union, AFL-CIO
Case 20-CA-14513
31 October 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
Upon charges duly filed the General Counsel of
the National Labor Relations Board by the Re
Donal Director for Region 20 issued a complaint
and notice of hearing dated 18 May 1979 and an
amendment to the complaint dated 10 August 1979
against Santa Rosa Memorial Hospital hereinafter
referred to as the Respondent The complaint as
amended alleges that the Respondent had engaged
in certain unfair labor practices within the meaning
of Section 8(a)(1) and (5) of the National Labor
Relations Act as amended Copies of the charge
complaint and notice of hearing and the amend
ment to the complaint were duly served upon the
parties The Respondent has filed answers to the
complaint and amended complaint denying corn
mission of any unfair labor practices
About 8 February 1980 the parties entered into
a stipulation of facts and jointly petitioned the
Board to transfer this proceeding directly to itself
for findings of fact conclusions of law and an
order The parties stipulated that they waived a
hearing before an administrative law judge the
making of findings of fact and conclusions of law
by an administrative law judge and the issuance of
an administrative law judge s decision and recom
mended order The parties also agreed that the
stipulation of facts and the exhibits attached thereto
and made a part thereof constitute the entire
record in this case and that no oral testimony was
necessary or desired by the parties
On 28 March 1980 the Board issued its order ap
proving the stipulation and transferring the pro
ceeding to the Board Thereafter the Respondent
the General Counsel and the Charging Party Hos
pital and Institutional Workers Union Local 250
Service Employees International Union AFL-
CIO filed briefs in support of their respective posi
lions
The National Labor Relations Board has delegat
ed its authority in this proceeding to a three
member panel
The Board has considered the stipulation the
briefs and the entire record in this proceeding and
hereby makes the following
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
Santa Rosa Memorial Hospital the Respondent
herein is a nonprofit California corporation with a
facility in Santa Rosa California and is engaged in
providing short term acute care hospital services
During the calendar year 1978 the Respondent in
the course and conduct of its business operations
received gross revenues in excess of $250 000 from
sources other than Medicare and Medi Cal pro
grams and received gross revenues in excess of
$50 000 from such programs The parties stipulated
and we find that the Respondent is now and at all
times material herein has been an employer en
gaged in commerce and in operations affecting
commerce within the meaning of Section 2(2) (6)
and (7) of the Act
II THE LABOR ORGANIZATION INVOLVED
The parties stipulated and we find that the
Charging Party Hospital and Institutional Work
ers Union Local 250 Service Employees Interna
tional Union AFL-CIO is now and at all times
material herein has been a labor organization
within the meaning of Section 2(5) of the Act
III THE UNFAIR LABOR PRACTICES
A Facts
On 28 February 1978 the Charging Party was
certified by the Board as the exclusive collective
bargaining representative of the employees in the
following unit
All medical technologists pharmacists dieti
clans and physical therapists employed at Re
spondent s hospital in Santa Rosa California
excluding confidential employees all other em
ployees guards and supervisors as defined in
the Act
On 28 July 1978 the Respondent and the Charg
ing Party agreed in writing to exclude dieticians
from the unit described above in recognition of the
fact that the Respondent s dieticians are supervisors
within the meaning of Section 2(11) of the Act
On 9 March 1979 1 the Respondent and the
Charging Party reached agreement on all terms
and conditions of employment covering the em
ployees in the unit described above This agree
ment was conditioned on ratification by the unit
employees A ratification vote was scheduled to
All further dates herein shall refer to the calendar year 1979 unless
otherwise specified
272 NLRB No 155
SANTA ROSA HOSPITAL 1005
take place on 15 March at two sessions conducted
at 1 and 7 p m
On 15 March at 11 38 a m a valid decertifica
tion petition supported by an adequate showing of
interest was filed with the Board at the Regional
Office in San Francisco California by Gregg
Young an employee in the unit described above
Although Young originally had been scheduled to
work on 15 March he previously had requested
and was granted the day off At the time of
Young s request the Respondent was aware that he
intended to file the decertification petition Prior to
18 March there was no discussion between Young
and his superiors as to whether Young would be
paid for the day off on 15 March He was subse
quently paid for 15 March by the Respondent
The Respondent and the Charging Party re
ceived knowledge of the filing of the decertifica
lion petition after completion of the first ratifica
tion session and before commencement of the
second ratification session The results of the vote
were officially tabulated after the second session
The vote was 16 for ratification and 5 against ratifi
cation
By letter dated 28 March the Charging Party re
quested the Respondent to execute a written con
tract incorporating the agreement reached on 9
March
By letter dated 19 April the Respondent refused
and continues to refuse to execute the written con
tract described above because of the filing of the
decertification petition The Respondent s letter
also requested several changes in the contract s Ian
guage The Charging Party has never objected to
the requested changes
As discussed above the Respondent paid Young
for the day off on 15 March Under the personnel
policies of the Respondent applicable to the em
ployees in the unit described above at all pertinent
times
(a) Regular employees are eligible for unpaid
personal leave without explanation for five (5)
working days per calendar year upon prior
notice to and approval by chief of their de
partment
(b) Regular employees are eligible for paid
education leave for five (5) working days per
calendar year for the purpose of attending
courses institutes workshops or classes of an
educational nature pertaining to the individ
ual s employment [sic]
Young s timecard for 15 March shows the entry
OFF(LOA) which means leave of absence As of
that date he had exhausted neither his unpaid per
sonal leave nor his paid educational leave for 1979
During 1978 and early 1979 13 bargaining ses
sions were conducted which took place during
working hours With one exception the five unit
employees on the Charging Party s negotiating
committee were , granted time off without pay
when negotiating sessions occurred during their
scheduled worktime Richard Hensley an employ
ee member of the negotiating committee was
granted paid education leave by the Respondent
for 1 day spent negotiating 9 March
B Contentions of the Parties
With regard to its refusal to execute a written
contract incorporating the agreement reached on 9
March the Respondent contends that since such
agreement was expressly contingent on employee
ratification and since such ratification did not
occur until late in the evening of 15 March the de
certification petition raised a valid question con
cerning representation and it therefore was re
quired to adopt a neutral stance for the purpose of
guaranteeing its employees an opportunity to freely
express their preference the Respondent argues
that its refusal was consistent with such a neutral
stance With regard , to its granting employee
Gregg Young paid education leave for the
scheduled workday he was required to take off in
order to file the decertification petition the Re
spondent contends that it applied an existing
policy such policy being evidenced by the fact
that it granted employee Richard Hensley paid
education leave for 1 day spent negotiating on
behalf of the Union The Respondent argues that if
it had not paid Young education leave under
these circumstances it would have been guilty of
discriminating against him in violation of Section
8(a)(3) of the Act
The General Counsel and the Charging Party
contend that the Respondent s refusal to execute
the written contract as requested was not justified
by the filing of the decertification petition on 15
March since full agreement had been reached on 9
March Citing North Bros Ford 220 NLRB 1021
(1975) the General Counsel and the Charging
Party argue that an employer does not have the
right to refuse to execute a written contract be
cause a decertification petition is filed after the par
ties have reached complete agreement on the terms
and conditions of employment but before a written
contract is executed In the alternative the General
Counsel and the Charging Party contend that as
suming that a decertification petition of which the
parties had knowledge prior to ratification could
serve as a justification for the Respondent s refusal
the parties did not receive knowledge of the decer
tification petition until after the ratification process
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
began and therefore the petition was untimely and
cannot justify the Respondent s refusal The Gener
al Counsel and the Charging Party further contend
that the Respondent provided unlawful assistance
to the filing of the decertification petition by grant
ing employee Young paid education leave for
the scheduled workday he was required to take off
in order to file such petition however the General
Counsel and the Charging Party do not contend
that the Respondent s alleged unlawful conduct
tainted the decertification petition and thus invali
dated it
C Discussion
This matter presents the question of whether the
Respondent lawfully refused to execute a written
contract incorporating the terms of its agreement
with the Union solely because a valid decertifica
ton petition had been filed with the Board prior to
the presentation of the contract to it for execution
In Dresser Industries 264 NLRB 1088 (1982) the
Board recently reevaluated its position regarding
the effect of a timely filed decertification on an em
ployer s obligation to bargain with an incumbent
union In that case the Board held that it is unlaw
ful for an employer to cease bargaining solely be
cause a decertification petition has been filed how
ever since this holding overruled established Board
law the Board announced that it would apply its
new analysis only prospectively 2 Accordingly
since this matter was pending before the Board
awaiting decision at the time of our decision in
Dresser Industries supra we will analyze this
matter in light of the Board law in effect at the
time of the Respondent s refusal to execute the
contract in question
It is well established that an employer violates
Section 8(a)(5) and (1) of the Act by refusing to
execute a written contract incorporating the terms
of an agreement reached with a union H J Heinz
Co v NLRB 311 US 514 (1941) It has also been
held however that an employer violates Section
8(a)(2) of the Act if it executes a contract with an
incumbent union when a real question concerning
representation previously has been raised but not
settled by the Board Traub s Market 205 NLRB
787 788 (1973) 3
2 264 NLRB 1088 1089
3 To the extent that the Board s decision in Traub s Market supra is
inconsistent with the principles enunciated in RCA Del Carthe Inc 262
NLRB 963 (1982) Bruckner Nursing Home 262 NLRB 955 (1982) and
Dresser Industries supra it is overruled
Chairman Dotson agrees that Dresser supra should be given prospec
twe application He therefore finds It unnecessary to pass on the legal
principles set forth in the cases cited in the preceding paragraph
It is axiomatic that if it would violate Section
8(a)(5) of the Act for an employer to refuse to exe
cute a written contract with a union execution of
the contract cannot be violative of Section 8(a)(2)
of the Act Likewise if execution of a contract
would be violative of Section 8(a)(2) of the Act a
refusal to do so must be lawful
The essence of the Respondent s argument herein
is that its refusal to execute the written contract as
requested must be lawful because it would have
violated Section 8(a)(2) of the Act if it had corn
plied with the Charging Party s request Whether
execution of the contract would have violated Sec
tion 8(a)(2) of the Act depends in turn on whether
the decertification petition filed by employee
Young raised a real question concerning represen
tation For the reasons stated below we conclude
that in the circumstances of this case the filing of
the decertification petition raised a real question
concerning representation and therefore that the
Respondent lawfully refused to execute the written
contract as requested by the Charging Party
In North Bros Ford supra the Board held that
the employer there did not have the right to refuse
to execute a written contract merely because a de
certification petition had been filed after the parties
had reached complete agreement on the terms and
conditions of employment but before a written con
tract was executed The General Counsel and the
Charging Party argue that the resolution of the in
stant matter is controlled by this holding
Contrary to the General Counsel and the Charg
ing Party we find that the facts of the instant
matter are not analogous to those of North Bros
Ford supra In that case the employer had en
gaged in a series of unfair labor practices prior to
the filing of the decertification petition and had
completely withdrawn its recognition of the union
In the instant matter on the other hand the Re
spondent had engaged in no unfair labor practices
prior to the filing of the decertification petition
Additionally it is apparent that prior to the
filing of the decertification petition in the instant
matter the parties had not reached an agreement
as that term is used in H J Heinz Co v NLRB
supra The parties have stipulated that the agree
ment reached on 9 March was subject to the ex
press condition of employee ratification thus no
agreement sufficient to give rise to the Respond
ent s legal obligation to execute a written contract
could exist prior to such employee ratification 4
Consequently the parties reached agreement if
at all on the evening of 15 March after the decerti
4 See e g Utility Tree Service 215 NLRB 806 807 (1974)
SANTA ROSA HOSPITAL 1007
fication petition had been filed and the parties were
so notified
In Telautograph Corp 199 NLRB 892 (1972) 5
the majority of the Board stated in dicta that the
timely filing of a decertification petition justified an
employer s refusal to bargain with an incumbent
union Accordingly under the circumstances of
this case we conclude that the Respondent was
justified in relying on this dicta when it refused to
execute the contract presented by the Union after
the filing of the decertification petition herein by
Gregg Young
With regard to the Respondent s granting em
ployee Gregg Young paid education leave for
the scheduled workday he was required to take off
in order to file the decertification petition we find
that there is insufficient evidence to conclude that
the same was improper particularly in light of the
evidence that the Respondent granted the same
such leave to employee Hensley for a day spent ne
gotiating for the Union Accordingly we shall
order that the complaint be dismissed in its entire
ty
5 Overruled in Dresser Industries supra
On the basis of the foregoing findings of fact and
conclusions and on the entire record we make the
following
CONCLUSIONS OF LAW
1 The Respondent is an employer engaged in
commerce within the meaning of Section 2(2) (6)
and (7) of the Act
2 The Charging Party is a labor organization
within the meaning of Section 2(5) of the Act
3 The following employees of the Respondent
constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act
All medical technologists pharmacists dieti
clans and physical therapists employed at Re
spondent s hospital in Santa Rosa California
excluding confidential employees all other em
ployees guards and supervisors as defined in
the Act
4 The Respondent did not engage in unfair labor
practices as alleged in the complaint as amended
ORDER
The complaint is dismissed