St. Mary's Hospital

National Labor Relations Board - Board Decisions

Apr 28, 1995

317 N.L.R.B. 89 (N.L.R.B. 1995)

89
317 NLRB No. 9
ST. MARY’S HOSPITAL
1 Art. II of the 1991–1993 agreement defines the unit as follows:
‘‘The Nurses covered by this Agreement are all Registered Staff
Nurses performing nursing services. Nurse anesthetists are not in-
cluded, nor are administrative and executive personnel having au-
thority to hire, discipline, discharge or to determine personnel poli-
cies.’’
2 The record does not indicate whether a document exists which
was signed by the parties and which specifically stated that, except
for those contractual provisions changed by their tentative agree-
ments, the predecessor agreement would remain unchanged and
would become the new collective-bargaining agreement.
3 Gersonde is now an agent of the Petitioner.
4 It appears from the record that prior to the filing of the petition,
the Employer announced to its employees that the Intervenor and
Employer had reached agreement for a new contract and the terms
of the agreement were implemented in substantial part, if not in their
entirety.
St. Mary’s Hospital and Medical Center and North-
ern California Association of Nurses, U.N.A.C.,
N.U.H.H.C.E., A.F.S.C.M.E. Case 28–RC–5194
(formerly 20–RC–16982)
April 28, 1995
ORDER DENYING REVIEW
BY MEMBERS STEPHENS, BROWNING, AND
TRUESDALE
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel, which has considered the Petitioner’s request for
review of the Acting Regional Director’s Decision and
Order (pertinent portions of which are attached). The
request for review is denied as it raises no substantial
issues warranting review.
APPENDIX
The Intervenor contends that there is a contract bar to the
instant proceeding and that the petition should, therefore, be
dismissed. The Petitioner contends that no signed contract
exists, and, under the Board’s holding in Appalachian Shale
Products, 121 NLRB 1160 (1958), and its progeny, no bar
exists to the processing of the instant petition. The Employer
takes no position with regard to this issue.
The record reflects that the Intervenor has represented the
Employer’s staff registered nurses (RNs) since 1947. The
record contains a recent collective-bargaining agreement ef-
fective by its terms from June 1, 1991, through May 31,
1993.1 Negotiations for a successor agreement commenced in
the spring of 1993, with only certain portions of the agree-
ment opened for revision.2 The issues reopened were: wages,
term of agreement, family leave, no discrimination, edu-
cational programs, staffing, layoffs, seniority, holidays
(Christmas and New Year), per diem scheduling, UCD bene-
fits, a title change (chief nursing executive instead of director
of nursing), just cause, and health insurance. During the
course of the 1993 negotiations, the parties signed and dated
the tentative agreements which were reached on each issue.
On June 19, 1993, after a protracted negotiating session that
principally dealt with wages, staffing, and health benefits,
agreement was finally reached on all issues that had been re-
opened. The parties signed a tentative agreement which set
forth each of the 15 issues that were negotiated and the man-
ner in which they were to be implemented, incorporating by
specific reference the signed and dated tentative agreements
for the individual issues previously resolved, as well as the
wage rates and health care provisions agreed on during that
bargaining session.
On or about June 22, 1993, the tentative agreement
reached on June 19, 1993, was ratified by the membership
of the Intervenor. Thereafter, on July 9 1993, the Employer’s
director of personnel, Joseph D’Antonio, met with Jan
Gersonde, the Intervenor’s chief negotiator,3 to review the
contract terms and language so that a formal agreement could
be drafted. At that time, D’Antonio and Gersonde reviewed
the tentative agreements and other source documents that
served as the basis for the new collective-bargaining agree-
ment and agreed that D’Antonio would flesh out the lan-
guage in a draft he would prepare. At that meeting, there was
no disagreement regarding the terms that had been nego-
tiated. No further meetings on the contract terms or language
were scheduled. In its brief, the Petitioner summarizes the
testimony of D’Antonio and Gersonde, who is now its agent,
as follows:
Once there has been a settlement, a draft of a complete
collective bargaining agreement is prepared, the draft is
reviewed by the parties to ensure that it accurately re-
flects the various agreements reached during negotia-
tions, appropriate changes are made, and then it is put
into final form for execution.
Indeed, this appears to be an accurate representation of the
procedure followed by the parties both during the 1991 and
1993 negotiations.
The instant petition was filed on October 14, 1993.4 It is
uncontroverted that the draft of the agreement was neither
prepared nor signed prior to the filing of the petition. The
draft did not surface until November 4, 1993, the first day
of the hearing in this matter. The Petitioner contends that
there are several areas in which the draft language does not
reflect the parties’ understanding of the terms agreement ne-
gotiated. The first provision relates to seniority. According to
Gersonde, the draft agreement contains a provision that cred-
its out-of-unit seniority for bidding on unit positions, which
is contrary to what was negotiated. However, Allen
Fitzpatrick, the Intervenor’s chief nurse representative, testi-
fied that no agreement was reached on this issue and that the
parties had agreed to submit this issue to arbitration if a
nonunit employee was awarded a bid position.
The second claimed discrepancy relates to staffing deter-
minations. The draft proposal indicates that a committee will
make recommendations on staffing levels to the chief nursing
executive. The Petitioner contends that when Gersonde nego-
tiated this matter, there was no language providing that the
recommendations would be submitted to the chief nursing
executive. The record reflects, however, that the parties con-
templated that the committee’s recommendations would be
presented to the Employer.
The third area relates to the manner in which wages are
expressed in the draft agreement. Gersonde states that the
Employer requested that an hourly figure be included in the
90 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Citing Georgia Purchasing, Inc., 230 NLRB 1174 (1977); Bendix
Corp., 210 NLRB 1026 (1974); and Appalachian Shale Products
Co., supra at 1162.
6 It appears from the testimony that there was never an agreement
with regard to the out-of-unit seniority issue. Instead, the parties
agreed to submit this issue for arbitration. With reference to the Peti-
tioner’s concern with the inclusion of the words ‘‘to the Chief Nurs-
ing Executive’’ regarding staffing recommendations made by the
Fact Finding Panel, I find, in reviewing the language of this provi-
sion, that this may very well be a distinction without a difference.
7 256 NLRB at 999 fn. 18.
collective-bargaining agreement. She agreed but insisted that
the monthly figure be used as the principal figure for com-
puting wage increases rather than the hourly amount. The
draft has based increases on the hourly amount instead of the
monthly figure.
According to the Petitioner, another issue exists concern-
ing language relating to retiree health benefits. The draft lan-
guage states, ‘‘Premiums may be adjusted at least annually.’’
(Emphasis added.) Gersonde contends that the parties agreed
to an annual adjustment, but not to more frequent adjust-
ments, as this language implies.
The final discrepancy relates to employee health care ben-
efits. Gersonde testified that the parties agreed that nurses
would have the unrestricted right to choose their own pri-
mary care physician and that an employee health clinic
would be opened at the hospital for specified hours. Both of
these provisions were not contained in the Employer’s draft.
After the 1991 negotiations, the same procedure was fol-
lowed for preparing the draft agreement as was discussed
above for the 1993 contract renewal. Gersonde testified that
the Employer’s first draft contained over 50 changes from
what the parties had agreed on during negotiations. These
were brought to the attention of the Employer, and the
changes were taken out in the second draft. It is undisputed
that the Intervenor agreed to allow the Employer to prepare
the draft language in both the 1991 and 1993 agreements.
The Petitioner contends that the aforementioned discrep-
ancies for the draft evidence that no final contract exists and,
thus, there is no contract bar. The Intervenor maintains that
these differences are minor and that substantial terms and
conditions of employment have been established which war-
rant the finding that the parties’ agreement is a bar to the
processing of the petition. As noted above, the Employer has
taken no position on this issue.
The Board stated in USM Corp., 256 NLRB 996, 999
(1981):
In order for an agreement to serve as a bar to an
election, the Board’s well-established contract-bar rules
require that such agreement satisfy certain formal and
substantive requirements. The agreement must be
signed by the parties prior to the filing of the petition
that it would bar and it must contain substantial terms
and conditions of employment sufficient to stabilize the
parties’ bargaining relationship. Appalachian Shale
Products Co., 121 NLRB 1160 (1958). The agreement,
however, need not be embodied in a formal document.
An informal document which nonetheless contains sub-
stantial terms and conditions of employment is suffi-
cient if it satisfies the other contract-bar requirement.5
The Board has further held that it is immaterial that a con-
tract does not take the form of a single self-contained docu-
ment. Cannon Boiler Works, 304 NLRB 457 (1991); Tele-
vision Station WVTV, 250 NLRB 198 (1980).
In the instant case, there is no dispute that on June 19,
1993, the Employer and Intervenor reached written tentative
agreements that were signed and dated by both parties on all
outstanding issues, that the tentative agreement was ratified
by the Intervenor’s members, and that on July 9, 1993, the
Employer’s and Intervenor’s representatives met to compile
the documents that would serve as the basis for the draft
agreement. No further meetings were scheduled after July 9,
because there were no further issues left to resolve. Prior to
the filing of the petition, the terms of the parties’ agreement
were implemented in substantial part. Thus, the case before
me is unlike Tri-State Transportation Co., 179 NLRB 310,
311 (1969), where a contract did not bar an election because
its terms had not been implemented.
In consideration of the foregoing, I find that the parties’
signing of the tentative agreements is sufficient to establish
their agreement to these provisions. See Television Station
WVTV, supra at 199 fn. 1. I also find that the tentative agree-
ment reached on all outstanding issues on June 19, 1993,
covered substantial terms and conditions of employment. Ad-
ditionally, I find that the parties’ intent to prepare and exe-
cute a formal agreement, which was not accomplished prior
to the filing of the petition herein, does not establish that
they conditioned the finality or effectiveness of their agree-
ment upon such signing.
In reaching the conclusion that a final agreement was
reached, I have carefully considered the Petitioner’s argu-
ments regarding the lack of a meeting of the minds on cer-
tain issues, such as the manner in which wages were ex-
pressed, retiree health benefit adjustments, employee choice
of primary physician and the designation of clinic hours.6 In
this regard, the Board found in USM Corp., supra,7 that:
[T]he Board does not require that an agreement delin-
eate completely every single one of its provisions in
order to qualify as a bar. See Stur-Dee Health Products,
Inc. and Biorganic Brands, Inc., 248 NLRB 1100
(1980); Levi Straus & Co., 218 NLRB 625 (1975); and
Spartan Aircraft Company, 98 NLRB 73 (1952). What
is required is that the agreement in question contain
substantial terms and conditions of employment suffi-
cient to stabilize the parties’ bargaining relationship.
I find that the Employer and the Intervenor reached agree-
ment on all outstanding issues on June 19, 1993, and their
settlement contains substantial terms and conditions of em-
ployment sufficient to stabilize their bargaining relationship.
Thus, the minor deviations between the Employer’s draft of
the agreement and the testimony of Petitioner’s witnesses re-
garding the details to their actual agreement on a few of the
issues is not sufficient to remove the contract as a bar. In
reaching this conclusion, I have carefully considered Branch
Cheese, 307 NLRB 239 (1992), relied on by the Petitioner
in its brief in support of its argument that there is no contract
bar, and I find it to be distinguishable. In Branch Cheese,
the Board concluded that it was unclear which of two offers
by the employer the union’s membership had ratified. In the
instant case, there is no ambiguity with regard to what the
91ST. MARY’S HOSPITAL
8 The Intervenor requested that the employees in the following po-
sitions be added to the existing unit: home health nurses, nurse edu-
cators, nurse practitioners, senior nursing systems analyst, case man-
agers, SNF admissions coordinator, and nurse coordinators. The Em-
ployer contends that the parties’ present bargaining unit is appro-
priate. In view of my determination that the contract is a bar, I find
that it is necessary to address this issue.
membership ratified, albeit in summary form. Accordingly, I
find that a contract bar exists herein, and I shall dismiss the
petition on this basis.8