St. Johns Smithtown Episcopal Hospital

National Labor Relations Board - Board Decisions

Jul 16, 1980

250 N.L.R.B. 620 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
St. Johns Smithtown Episcopal Hospital anrd New
York State United Teachers, AFT, AFL-CIO,
Petitioner. Case 29-RC-4727
July 16, 1980
DECISION AND DIRECTION OF
RUNOFF ELECTION
BY MEMBERS JEINKINS, PENELIO, AND
TRUESDALE
Pursuant to a Stipulation for Certification Upon
Consent Election, a secret-ballot election was con-
ducted on November 14, 1979, under the direction
and supervision of the Regional Director for
Region 29 among the employees in the appropriate
unit. At the conclusion of election, the parties were
furnished a tally of ballots which showed that, of
approximately 91 eligible voters, 26 cast ballots for
Petitioner, 21 cast ballots for the Intervenor,' and
28 cast ballots against the participating labor orga-
nizations. There was one challenged ballot, which
was not sufficient in number to affect the results of
the election. Thereafter, the Intervenor filed objec-
tions to conduct affecting the results of the elec-
tion.
The Regional Director conducted an investiga-
tion of the objections and thereafter, on February
12, 1980, issued and served on the parties his report
on objections and notice of hearing. In his report,
the Regional Director ruled that Petitioner's
motion to dismiss the Intervenor's objections be
denied, that the Intervenor's Objection 2 and a por-
tion of its Objection I be overruled, and that a
hearing be held on the remainder of Objection 1.
On February 26, 1980, Petitioner filed timely ex-
ceptions to the report with respect to the Regional
Director's recommendations (I) that Petitioner's
motion to dismiss the Intervenor's objections be
denied, and (2) that a hearing be held on a portion
of Objection 1.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
Upon the entire record in this case, including the
exceptions and brief, the Board finds:
1. The Employer is engaged in commerce within
the meaning of the Act, and it will effectuate the
purposes of the Act to assert jurisdiction herein.
2. Petitioner and the Intervenor are both labor
organizations claiming to represent certain employ-
ees of the Employer.
i District 1199. Guild of Professional, Technical and Office Employ-
ees. National Union of Hospital and Health Care Employees, RWDSU,
AFL-CIO, is the Intervenor in this proceeding
250 NLRB No. 77
3. A question affecting commerce exists concern-
ing the representation of the employees of the Em-
ployer within the meaning of Section 9(c)(1) and
Section 2(6) and (7) of the Act.
4. The parties stipulated, and we find, that the
following employees constitute a unit appropriate
for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All full-time and regular part-time Licensed
Practical Nurses, Physiological Services
Therapists, Physiological Services Technicians,
Laboratory Technicians, Laboratory Tech-
nologists, X-Ray Technicians, Special Proce-
dure Technicians, and Isopope Technicians
employed by St. John's Episcopal Hospital-
Smithtown located on Route 25A, Smithtown,
New York who are regularly scheduled to
work more than 7-1/2 hours per week.
5. The Board has considered the Regional Direc-
tor's report and Petitioner's exceptions thereto, and
finds merit in Petitioner's exception to the Regional
Director's denial of its motion to dismiss the Inter-
venor's objections.
On November 21, 1979, the Intervenor filed with
the Board its objections to the conduct of the elec-
tion and served a copy on the Employer. Howev-
er, the Intervenor failed to serve Petitioner be-
cause, as found by the Regional Director, "the at-
torney handling this matter and his secretary were
both out ill and through inadvertence service was
not made."
In mid-December 1979, the Regional Office, in
connection with its investigation of the objections,
contacted Petitioner's counsel to obtain its position
on the objections, but was advised that the attor-
ney handling this matter was on vacation. On or
about December 21, 1979, the Regional Office was
again informed that Petitioner's position regarding
the objections could not be ascertained until the at-
torney involved returned from his vacation.
On or about Janaury 10, 1980, Petitoner's coun-
sel advised the Regional Office that Petitioner
never received a copy of the Intervenor's objec-
tions. Thereafter, on January 22, 1980, after the
Regional Office advised the Intervenor that service
of its objections had not been made on Petitioner,
the Intervenor served a copy of its objections on
Petitioner. By motion dated January 23, 1980, Peti-
tioner moved to dismiss the Intervenor's objections
for failure to serve the objections on Petitioner as
required by Section 102.69 of the Board's Rules
and Regulations, Series 8, as amended. 2
Sec. 102
6 9
(a) of the Hioard"' Rule, and Regulations, Series K, as
amended, states in relevant part:
Continued
620
SI JOHNS SMITHF ()OWN EISCO()AI 11)SI'ITAI
Based on the facts, the Regional Director denied
Petitioner's motion to dismiss the objections. He
determined that the Intervenor substantially com-
plied with the Board's rule on service of objec-
tions, since the objections were timely filed with
the Board, and since one other party, the Employ-
er, was served. The Regional Director noted that
the inadvertent failure to serve Petitioner was due
to the illness of the Intervenor's counsel. More-
over, he concluded that Petitioner was not preju-
diced by the late service, since it was afforded full
opportunity to present its position and witnesses in
support thereof and has done so.
In Auto Chevrolet, Inc.,3 we reaffirmed the prin-
ciple, first stated in Alfred Nickles Bakery, Inc., 4
that:
[I]n order to support a variance or deviation
from the clear requirements of the Board's
Rules, there must be some showing that there
has been an honest attempt to substantially
comply with the requirements of the Rules, or,
alteranatively, a valid and compelling reason
why compliance was not possible . . .s
We specifically noted that the presence or absence
of prejudice to the party on whom objections
should have been timely served was irrelevant in
determining whether the objecting party made "an
honest attempt to substantially comply" with the
Rules on service of objections.
In the instant case, the Intervenor admittedly did
not serve its objections on Petitioner until over 2
months after the date of the election. We are of the
opinion that the illness of its counsel at the time the
objections were filed is not a "valid and compelling
reason why compliance is not possible." Nor is "an
honest attempt to substantially comply" with our
rules on the service of objections found in the In-
tervenor's belated service on Petitioner after being
informed that it had failed to conform to the re-
quirements of Section 102.69.6
As the record does not establish either an honest
attempt by the Intervenor to substantially comply
with out rules on service of objections, or a valid
and compelling reason why timely compliance
with those rules was not possible, we conclude that
Within 5 days after the tall5 of hallot, has been furllished. any pairly
may file with the regional direclor an ioriginal and Ihree coppies of
(bjecthiins It the conduel of the elcclion or conduct affet'llng the re-
sulls of Ihe election, which shall conllii n a short slatement of he reail
sons therefior Such filing nmust he r imely whether or not the chal-
lenged hallot s are sIufficieli il numhber to affect the results of the
clection Copies of such ihlcc l lon, shall iinlnledlately e ser ed on
Ihe other parlies by the parlt filing thenm. and .a slaltemenI t of scr ice
shall he made
' 249 Nl RH No 711 (9 IS()
' 2() NI RH 1(158 1794)
s 249 Nl RH 529 quolllng ViiiA/., 2(} Ni RH iit ()05
luto (h,v, l rr tI, . upra Plaut nrothr. 251) NI RI 4')
the Intervenor's objections were not properly filed
and served pursuant to Section 102.6 9(a) of our
Rules and Regulations, Petitioner's motion to dis-
miss the objections is hereby granted.
Accordingly, as none of the choices on the ballot
in the election held on November 14. 1979, re-
ceived a majoirty of the valid ballots cast, we will
direct a runoff election between the two choices
receiving the highest number of ballots.
DIRECTION OF RUNOFF ELECTION
It is hereby directed that the Regional Director
for Region 29 shall conduct a runoff election at a
time and place to be determined by him, among
certain employees of the Employer who were em-
ployed during the payroll period used in the prior
election, in the unit of employees found appropri-
ate, in the unit set forth in section 12 of the Stipu-
lation for Certification Upon Consent Election. to
determine whether or not they desire to be repre-
sented for purposes of collective bargaining by the
New York State United Teachers, AFT, AFL-
CIO, or by no other labor organization.
MF MBILR TRUESDAI. E, dissenting:
For the reasons set forth more fully in my dis-
sent in Auto Chevrolet, Inc., 249 NLRB 70, 1 would
affirm the Regional Director's denial of Petitioner's
motion to dismiss and consider the Intervenor's ob-
jections on the merits.
The facts with respect to service of the objec-
tions in this case are uncontested. The election was
conducted November 14, 1979. On November 21,
1979, the Intervenor filed timely objections to con-
duct affecting the results of the election. Although
the Employer was served with a copy of the objec-
tions, the Intervenor failed to make service on the
Petitioner until January 22, 1980, after being ad-
vised by the Regional Office that Petitioner had
not been served. In explanation of the failure to
serve Petitioner, the Intervenor's counsel states that
both the attorney handling this matter and his sec-
retary were ill, so that the failure to serve Petition-
er was inadvertent.
On two separate occasions during December
1979, a Board agent attempted to obtain Petition-
er's position regarding the objections. In both in-
stances, the Board agent was advised that the attor-
ney representing Petitioner was on vacation and
that Petitioner's position must await his return. In
neither instance did Petitioner call the Board
agent's attention to the fact that it had not been
served with a copy of the objections. Indeed, it
was not until Janaury 10, 19X(80, that Petitioner's
counsel, responding to the Region's request for Pe-
titioner's position on the objections, advised the
I)I C SIO()NS ()1: NA II()NAI. I AB()R RfEI.A IIONS I()ARI)
Board agent that Petitioner had not been served.
Thereafter, as indicated above the Intervenor
served Petitioner with a copy of the ejections and
Petitioner was afforded an opportunity to supply
evidence in support of its position, which it did.
The Regional Director noted that the failure to
serve was inadvertent due to the illness of the In-
tervenor's Counsel and that there was no evidence
that Petitioner was prejudiced by the late service.
Accordingly, the Regional Director, citing The
Nestle Company,7 found that the Intervenor had
substantially complied with the Board's Rules and
Regulations regarding the timely filing and service
of objections.
The majority, relying on Auto Chevrolet, Inc.,
supra, and Alfred Nickles Bakery, Inc., 209 NLRB
1058 (1974), concludes that the illness of the Inter-
venor's counsel is not "a valid and compelling
reason why compliance is not possible" and that
the Intervenor's service on Petitioner after being
informed of its obligation to do so is not "an honest
attempt to substantially comply" worth our rules
and on the service of objections. Hence, the major-
ity overrules the Regional Director and grants P'e-
titioner's motion to dismiss the objections.
Contrary to the majority, there is no significant
difference between this case and The Nestle Compa-
ny, supra. There the Board held that the Regional
Director applied Alfred Nickles too rigidly based
largely on the Board's recognition that the union's
failure to timely serve copies of its objections re-
sulted from "the unfamiliarity of its agent, a layper-
son, with the Board's procedures." Similarly, the
illness of the Intervenor's counsel placed the Union
here in the same posture as the union in The Nestle
Company, i.e., responsibilty for compliance with
7 244) Ni KHi 110 (19)7')
the Board's Rules and Regulations regarding serv-
ice rested with a layperson. Further, as noted pre-
viously, it was not until Petitioner was contacted
for the third time that the lack of service was
raised. However, since the Intervenor promptly
served Petitioner with a copy of the objections and
l'etitioner was afforded an opportunity to provide
evidence in support of its position, which it did, I
fail to see how Petitioner was prejudiced.
The majority's decision in this case underscores
the point made in my dissent in Auto Chevrolet,
Inc., supra, to wit, that our present policy in this
area "at best, is difficult to administer and, at
worst, fails to provide guidance to the parties, to
our regional directors who must make the initial
decisions in these matters, and, indeed . . . to the
Board itself." The solution to this problem is clear.
For all the reasons set forth in Auto Chevrolet,
supra, the Board should undertake the service of
election objections, a practice it has long followed
with respect to unfair labor practice charges and
representation petitions. I recognize, however, that
pending a change in policy, I must deal with this
case in terms of what is, rather than what should
be. Accordingly, while neither the "slavish and lit-
eral" rule of General Ti'me s or Certain-Teed ' "
"lack of prejudice" test provides a satisfactory ac-
commodation between the competing (and perhaps
conflicting) interests involved, I beleive the Cer-
tain-Teed rationale is preferable to that of AlfJed
Nickles Bakery and the majority position in Auto
Chevrolet and should control the instant case. In the
absence of evidence that Petitioner was prejudiced
by the late service, I would affirm the Regional Di-
rector's disposition of this case.
G(icneraI It n ( -rpjratol. 112 Nl Rki 86 (1955)
C' rtain Id IP-lt , ( 'r /ran/o 171 NI RII 229 U Il681
h622