The Youngstown Osteopathic Hospital Association

National Labor Relations Board - Board Decisions

Feb 26, 1975

216 N.L.R.B. 766 (N.L.R.B. 1975)

766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Youngstown Osteopathic Hospital Association
and International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, Local No. 377, Petitioner. Case
8-RC-9649
February 26, 1975
DECISION ON REVIEW AND ORDER
BY MEMBERS FANNING, JENKINS, AND
PENELLO
On October 17, 1974, the Regional Director for
Region 8 issued a Decision and Direction of
Election' in the above-entitled proceeding. Thereaf-
ter, in accordance with Section 102.67 of the
National Labor Relations Board Rules and Regula-
tions, Series 8, as amended, the Employer filed a
timely request for review of the Regional Director's
decision, contending that the Regional Director
erred in failing to find that the instant petition is
barred by a collective-bargaining agreement between
the Employer and the Intervenor.2
By telegraphic order dated November 20, 1974, the
National Labor Relations Board granted the request
for review and stayed the election pending decision
on review.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the entire record in this
case, including the Employer's brief, with respect to
the issues under review and makes the following
findings:
The Employer is an Ohio corporation engaged in
the operation of a nonprofit osteopathic hospital. It
has approximately 180 employees who are currently
represented by the Intervenor.
On February 13, 1967, the Intervenor and the
Employer entered into a collective-bargaining agree-
ment , with an expiration date of February 12, 1970.
This agreement was followed by a signed memoran-
dum in which the parties agreed to certain changes in
the expiring agreement and extended the contract
term. Thereafter, the Intervenor prepared in booklet
form, for the benefit of its members, the new
agreement containing the terms and conditions of the
initial contract as modified by the agreed-upon
memorandum. This contract was to remain in effect
I The appropriate unit is. "All orderlies , including orderlies working in
the x-ray department , secretaries in the x -ray department , nurses' aides,
licensed practical nurses, maintenance employees , housekeeping employees,
laboratory employees, ward clerks, laundry employees , cafeteria employees,
dietary employees , 0 E technicians , medical records employees , gift shop
employees , isotope , pharmacy and pathology department employees, and
the assistant supervisors in the laboratory , maintenance , housekeeping and
until November 12, 1972, and had provisions 'for
reopening and renegotiation at the termination
thereof.
On September 1, 1972, pursuant to the provisions
of the agreement, the Intervenor notified the Em-
ployer of its desire to negotiate a new contract.
Thereafter the parties entered into negotiations
which on November 12, 1972, culminated in the
signing of a two-page memorandum agreement,
providing for changes in the expired contract to be
incorporated into a new contract which was to
remain in effect until November 1, 1975. In accord
with its past practice, the Intervenor began to
prepare the new agreement in booklet form for the
benefit of its members. However, during the period
that the booklet was being prepared, the administra-
tor of the hospital and the acting president of the
Intervenor agreed to certain further provisions which
were incorporated in the final booklet prepared by
the Intervenor. This last document which is currently
in effect states in its duration clause that "this
Agreement dated February 13, 1967 shall continue in
full force and effect without change until midnight of
November 1, 1975...."
The Regional Director viewing this last agreement
as one for an 8-1/2-year term concluded it could not
bar the petition beyond its initial 3-year period. In
the circumstances of this case, we disagree. The
reasons are unclear as to why this document, not
prepared and signed until early 1973, was inartfully
drafted to state that it was dated February 13, 1967.
However, it is clear that when the current contract is
considered in the context of the well-established
antecedent bargaining history, particularly the previ-
ous contracts and memoranda in evidence, the final
contract is an agreement for a fixed term of
approximately 3 years expiring on November 1,
1975. In these circumstances, the fact that the
contract recites that it was dated February 13, 1967,
affords an insufficient basis for concluding that the
contract was for an 8-1/2-year term.
The Regional Director also found the contract to
be deficient in that it failed to contain "substantial
terms and conditions of employment" sufficient to
stabilize the bargaining relationship,3 more particu-
larly with regard to the absence of specific wage
rates. We disagree.
The current contract under article XVIII, section 1,
provides that the Employer shall pay the unit
employees "in accordance with the Wage Structure
medical records departments , at the Employer's hospital in Youngstown,
Ohio, but excluding all office clerical employees , registered nurses, x-ray
technicians , darkroom employees , and guards, all other professional
employees and supervisors as defined in the Act."
2 Youngstown Osteopathic Hospital Employees Association.
3 Appalachian Shale Products Co, 121 NLRB 1160 ( 1958).
216 NLRB No. 136
THE YOUNGSTOWN OSTEOPATHIC HOSPITAL ASSOCIATION 767
of November 12, 1972." This section further provides
that a copy of wages and job classifications shall be
sent to each department representative. The Novem-
ber 12, 1972, memorandum of agreement provides,
inter alia, for an increase of 5.5 percent of their base
pay as of that date. It further provides for a
minimum rate of $2.10 per hour for 30 days and then
increased to $2.25 per hour. In view of the foregoing,
it is clear that the current agreement specifically
refers to the agreed-upon wage structure of Novem-
ber 12, 1972, which provides for a fixed percentage
increase in base rates and an increase in minimum
rates.4 In this context, the absence of specific wage
rates set forth, in the current agreement, does not, in
our view, render it deficient for contract-bar purpos-
es. Nor is its bar quality affected by the fact that the
Employer has the right to determine premium rates
at its discretion as provided in article XVIII, section
4.
We therefore find that the current contract is of
reasonable duration and contains substantial terms
and conditions of employment sufficient to insure
industrial stability. Accordingly, said agreement bars
processing the instant petition, which we shall
dismiss.
ORDER
It is hereby ordered that the petition filed herein
be, and it hereby is, dismissed.
MEMBER FANNING, dissenting:
I would affirm the decision of the Regional
Director substantially for the reasons recited in the
relevant portion of his decision, attached hereto as
an appendix.
+ It is noted that the prior agreement which expired in November 1972
provided for a percentage increase of "base pay."
APPENDIX
The Employer is an Ohio corporation engaged in
the operation of a nonprofit osteopathic hospital in
Youngstown, Ohio. Its approximately 180 employees
are currently represented by the Intervenor under the
terms of a collective bargaining agreement effective
from February 14, 1967 up to and including
November 1, 1975, discussed infra, which the
Intervenor alleges is a bar to an election in the
instant matter . The Employer also takes the position
that the collective bargaining agreement acts as a bar
but, unlike the Intervenor, relies upon a combination
of a printed agreement running from Novmeber 1970
until November 1972 which was never signed by
either the Intervenor or the Employer and a
memorandum of agreement dated November 12,
1972, effective until November 1, 1975. Contrary to
the Employer and the Intervenor, the Petitioner
asserts that none of the three documents or any
combination thereof operate as a bar, that the
petition is timely filed, and that an election should be
directed forthwith in the appropriate unit.
The record indicates that the Intervenor was
recognized by the Employer as the collective bar-
gaining representative of the Employer's employees
in the early part of 1967; the parties entered into a
collective bargaining agreement on February 13,
1967, which remained in effect until February 12,
1970. This agreement was followed by an undated
one-page memorandum, signed by representatives of
the Employer and the Intervenor which stated that
the parties had negotiated a renewal of the
1967-1970 contract and had reached agreement on
wages and fringe benefits to be incorporated into a
proposed agreement . The agreement which expired
on February 12, 1970, was to be amended by several
changes set forth in the undated one-page memoran-
dum and resulted in a printed document purportedly
controlling the collective-bargaining relationship
between the Employer and the Intervenor. That
document is an unsigned labor contract which was
assertedly dated November 12, 1969 and was to ".. .
continue in full force and effect . . . until midnight
of November 12, 1971" according to its Article XXII
entitled "Duration". Subsequently, the Employer
and the Intervenor met in a series of negotiation
meetings which resulted in a two-page memorandum
signed on November 12, 1972 which purportedly
extended the unsigned 1970-1972 contract until
November 1, 1975 and provided that the items set
forth in the memorandum be incorporated into a
"new contract". The "new contract" in existence
between the Employer and Intervenor is a 20-page
bound and printed contract whose "Duration" clause
in Article XXII states that, "This Agreement dated
February 13, 1967, shall continue in full force and
effect without change until midnight of November 1,
1975".
That contract, claimed by the Intervenor as a bar,
does not meet Board contract bar criteria for two
reasons: (1) It is for a term of 8-1/2 years running
from February 13, 1967 through November 1, 1975;
(2) It does not ". . . chart with adequate precision
the course of the bargaining relationship . . . [so
that] the parties can look to the actual terms and
conditions of their contract for guidance in their day-
to-day problems." Appalachian Shale Products Co.,
121 NLRB 1160, 1163 (1958).
It is well settled that ". . . contracts of definite
duration for terms up to 3 years will bar an election
for their entire period; contracts having longer fixed
terms will be treated for bar purposes as 3 -year
768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreements and will preclude an election for only their
initial 3 years. " (Emphasis added) General Cable
Corporation, 139 NLRB 1123 ( 1962). The term of the
agreement as noted above , is for a period of more
than 8 years . Since it could only act as a bar for its
first 3 years , from 1967 to 1970, I find no merit to the
Intervenor's reliance upon it as a bar , for if the Board
expanded ". . . the bar period to more than 3 years,
stability of industrial relations would . . . be so
heavily weighted against employee freedom of choice
as to create an inequitable imbalance ." General
Cable, supra, 1125; General Dynamics Corporation,
175 NLRB 1022 ( 1969).
Assuming that the agreement was only for 3 years
duration, it would also fail as a bar because it does
not contain the substantial terms and conditions of
employment requisite for stabilization of the bargain-
ing relationship . To bar a representation petition, a
contract ". . . must be in writing , signed by the
parties , and contain substantial terms and conditions
of employment ." Appalachian Shale, supra, 1163. In
this respect the contract is deficient in the area of
wages , an essential ingredient of any collective-
bargaining agreement . Article XVIII , in passing,
refers to wages and wage structure , job classifications
and premium rates , but is devoid of specific wage
rates which are supposed to be found in its Appendix
A. Neither the contract nor the record contains
Appendix A. Moreover , there is no evidence reflect-
ing what the premium rates are, over and above the
standard wage rates . Premium ". . . payments may
be made at the discretion of the Hospital without
notice to or consent by the Union" . Article XVIII,
Section 4, page 14. A collective -bargaining agree-
ment without wage rates and endowing the Employer
with total discretion as to premium rates is conducive
to instability in the bargaining relationship and does
not warrant ". . . withholding a present determina-
tion of representation ." Silver Lake Nursing Home,
178 NLRB 478 , 480 (1969).
It is significant to note again at this juncture that
the Employer and the Intervenor have taken two
different positions as to which labor agreement
currently is in effect as a bar . While the Intervenor at
the hearing relied on the 1967-1975 contract, the
Employer at the hearing and in its posthearing brief,
relies on a combination of the November 1972
memorandum and the undated contract allegedly in
force from 1970-1972.
Throughout the record the Intervenor's officers
assert that the 20-page agreement which has a term
of over 8 years and which cannot operate as a bar as
indicated , supra, currently controls the bargaining
relationship between the parties . Moreover, Camp-
bell, the Intervenor's current vice president , testified
that the Intervenor and officials of the Employer
processed a grievance through the final step prior to
arbitration under its provisions in the spring of 1974.
On the other hand , the Employer, with equal force,
urges that the combination of the unsigned
1970-1972 contract and its alleged November 1972
extension is the applicable contract . Since neither the
Intervenor nor the Employer can agree on which
agreement governs their present bargaining relation-
ship , it is obvious that the unit employees may also
be confused in this regard . The Board 's contract bar
doctrine was formulated to provide an employer and
an incumbent union a period of time during which
the bargaining relationship could be stabilized, free
from the pressures attendant upon another union
seeking to organize the employees or the employees
themselves seeking to decertify their bargaining
representative . The benefits accruing from a stabi-
lized bargaining relationship have to be weighed
against the potential employee desire to periodically
select a new , or reaffirm their faith in an existing,
bargaining representative . In a case such as that
presented here I cannot conclude that a stable
bargaining relationship exists for the parties them-
selves are in disagreement as to which agreement or
combination thereof controls that relationship.
Therefore , on the basis of the above and the entire
record , I find that neither the 1967-1975 agreement
nor the unsigned 1970-1972 contract allegedly
extended by the November 1972 memorandum can
act as bars to an election . Accordingly , I shall order
an election to be held in an appropriate unit. General
Dynamics Corporation, supra; Appalachian Shale,
supra; Silver Lake Nursing Home, supra.